Can a Virginia locality require a group home for people with disabilities to have only live-in staff to qualify as a single-family residence for zoning?

Plain-English summary

York County adopted a zoning ordinance incorporating Va. Code § 15.2-2291. The Zoning Administrator interpreted the law to mean that a residential facility for adults with disabilities qualified as a "single family" for zoning only if all its counselors and other staff were "resident," meaning they lived at the facility. Facilities using non-resident staff were being told to apply for special use permits. Group home operators pushed back. The County Attorney asked the AG to settle it.

The AG sided with the operators.

What § 15.2-2291(A) actually says. "Zoning ordinances for all purposes shall consider a residential facility in which no more than eight individuals with mental illness, intellectual disability, or development disabilities reside, with one or more resident counselors or other staff persons, as residential occupancy by a single family.... No conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption shall be imposed on such facility."

Two operative pieces. First, the live-in staff requirement: "with one or more resident counselors or other staff persons." That is "at least one," not "all." If the facility has even one counselor or staff member who lives there, the residency requirement is met. Other staff can come in during shifts to provide services without affecting the zoning classification.

Second, the equal-treatment requirement: no conditions more restrictive than those for ordinary family homes. A traditional single-family home using a part-time housekeeper, occasional contractors, or visiting healthcare workers is still a single-family residence; the General Assembly required group homes to be treated the same way.

Why the County's reading missed the mark. The Zoning Administrator was reading "one or more resident counselors or other staff persons" as requiring all staff to reside on-site. But the natural reading limits "resident" to modifying "counselors or other staff persons" who count toward the minimum requirement; it does not transform every other employee into a co-resident. The AG cited the rule of statutory construction that courts give the fullest possible effect to legislative intent embodied in the entire enactment, and that they cannot add language to the statute.

The AG further pointed to the equal-treatment clause as a backstop. Even if the residency rule were ambiguous, requirements not imposed on traditional single-family residences cannot be imposed on facilities within § 15.2-2291(A). Locality-level fair-housing concerns and federal Fair Housing Act echoes are evident in the statute's structure.

Practical effect for York County (and other Virginia localities). A licensed group home for up to eight adults with disabilities, with at least one live-in caretaker, was a single-family residence by operation of law. The locality could not require a special use permit, could not impose a separation distance, could not impose occupancy limits stricter than those for ordinary families, and could not condition operation on residency of all employees.

Currency note

This opinion was issued in 2013. 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.

Section 15.2-2291 has been amended since 2013, and the federal Fair Housing Act analysis of group home regulation continues to evolve. Group-home operators and localities should verify the current text and current case law before relying on this opinion.

Common questions

What is § 15.2-2291 supposed to do?
Prevent local zoning rules from being used to exclude small residential facilities for people with disabilities from single-family neighborhoods. It is Virginia's state-law analog to the protections under the federal Fair Housing Act for individuals with disabilities.

How many residents can live in the facility?
Up to eight individuals with mental illness, intellectual disability, or developmental disabilities. Above eight, the statutory single-family treatment does not automatically apply.

Does the statute apply to other types of group homes?
Section 15.2-2291 covers facilities for individuals with mental illness, intellectual disability, or developmental disabilities. Other group-living arrangements (sober living houses, assisted living, halfway houses) are governed by different rules and different fair-housing analyses.

What does "resident counselor" mean?
A counselor or staff person who lives at the facility. The opinion does not specify how many nights per week qualify, but the natural reading is full-time live-in residence. One such person is the minimum.

Can the locality require licensure?
The licensing question is separate. The Virginia Department of Behavioral Health and Developmental Services (or its successor) licenses residential services for people with disabilities. Localities cannot use zoning to layer extra requirements that effectively re-license a state-licensed facility, but the locality can verify the facility holds a required state license.

What about safety and code requirements?
The facility is subject to the same building, fire, and life-safety codes that apply to ordinary single-family residences. Additional state licensing standards may apply.

Can the locality treat the facility differently if there are concerns about parking, traffic, or neighborhood impact?
Only if the locality imposes the same restrictions on similarly-sized ordinary single-family households. The statute's parity clause forbids selectively applying stricter standards.

What if the facility has more than eight residents?
The automatic single-family treatment of § 15.2-2291 doesn't apply, and the locality may treat it as a different use category. Federal Fair Housing Act protections may still constrain the locality's options.

What recourse does an operator have if a locality applies a stricter rule?
Appeal the zoning decision (Board of Zoning Appeals, then circuit court), sue under the Fair Housing Act, or seek an AG opinion. Operators may also be able to invoke ADA Title II against the locality.

Background and statutory framework

• Va. Code § 15.2-2286: general zoning enabling statute; localities may define single-family residence subject to state-law mandates.
• Va. Code § 15.2-2282: requires zoning regulations to be uniform within a class or district.
• Va. Code § 15.2-2291(A): mandates single-family zoning treatment for qualifying disability-related residential facilities of up to eight residents.
• Va. Code § 1-248: rule that state law preempts conflicting local ordinances in matters of statewide concern.
• Federal Fair Housing Act: parallel federal protection for individuals with disabilities; § 15.2-2291 incorporates similar principles.

The interpretive moves:

• Plain reading of "one or more resident counselors or other staff persons" requires at least one, not all.
• The General Assembly chose not to impose blanket staff-residency rules.
• The parity clause (no stricter conditions than for family-occupied homes) reinforces the result.
• Localities cannot use creative ordinance drafting to evade the statute.

Citations

• Va. Code § 1-248
• Va. Code § 15.2-2282
• Va. Code § 15.2-2286(A)(5), (14)
• Va. Code § 15.2-2291
• Conger v. Barrett, 280 Va. 627, 702 S.E.2d 117 (2010)
• Turner v. Commonwealth, 226 Va. 456, 309 S.E.2d 337 (1983)
• Va. Real Estate Bd. v. Clay, 9 Va. App. 152, 384 S.E.2d 622 (1989)
• Commonwealth v. Amerson, 281 Va. 414, 706 S.E.2d 879 (2011)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626 (2012)
• Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 727 S.E.2d 40 (2012)
• Lampkins v. Commonwealth, 44 Va. App. 709, 607 S.E.2d 722 (2005)
• Smoot v. Commonwealth, 37 Va. App. 495, 559 S.E.2d 409 (2002)
• Washington-Virginia Ry. Co. v. Fisher, 121 Va. 229, 92 S.E. 809 (1917)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-076_Barnett.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

October 11, 2013

James E. Barnett, Esquire
County Attorney, York County
Office of the County Attorney
Post Office Box 532
Yorktown, Virginia 23690-0532

Dear Mr. Barnett:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether a facility as defined in § 15.2-2291 of the Code of Virginia shall be deemed to constitute a single family residence for zoning purposes only if all counselors and other staff persons who provide services to the residents are "resident," i.e., live at the facility. In other words, you ask whether § 15.2-2291 imposes a requirement that all counselors and other staff persons who might provide services to the residents reside at the facility in order for it to qualify as a residential occupancy by a single family for zoning purposes.

Response

It is my opinion that § 15.2-2291 does not require all counselors and other staff persons to reside at a facility for individuals with mental illness, intellectual disability, or developmental disabilities to qualify as a residential occupancy by a single family for zoning purposes.

Background

You indicate that York County has adopted a zoning code definition of "family" that incorporates the provisions of § 15.2-2291.[1] You further state that the York County Zoning Administrator has interpreted the relevant Code provisions "such that a facility which employs nonresident staff persons is not a single family dwelling for zoning purposes, and as such may be subject to a special use requirement." You indicate that, based on this interpretation, York County requires special use permits for facilities that intend to use non-resident staff. You relate that applicants for these permits have questioned the Zoning Administrator's opinion, prompting you to request that this Office opine on this matter.

Applicable Law and Discussion

Section 15.2-2291(A) provides, in relevant part, that:

Zoning ordinances for all purposes shall consider a residential facility in which no more than eight individuals with mental illness, intellectual disability, or development disabilities reside, with one or more resident counselors or other staff persons, as residential occupancy by a single family.... No conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption shall be imposed on such facility.

"The primary objective in statutory construction is to ascertain and give effect to legislative intent,"[2] and "[i]n construing statutes, courts should give the fullest possible effect to the legislative intent embodied in the entire statutory enactment."[3] A court "must determine ... legislative intent by what the statute says and not by what [the court] think[s] it should have said."[4] Finally, "[w]hen the language of a statute is unambiguous, we are bound by the plain meaning of that language."[5]

Virginia's zoning enabling legislation recognizes that localities may define what constitutes a single family residence.[6] Section 15.2-2291(A) categorizes facilities meeting the criteria of the Code section as a single family residence for zoning purposes regardless of how a locality may otherwise define such a residence. When enacting § 15.2-2291, the plain language used indicates that the General Assembly intended to ensure that a locality's definition of a family would not preclude the subject facilities in single family residential zoning districts, so long as at least one counselor or other staff person likewise resides at the facility.[7] Thus, by definition, and by plain construction of the statute, up to eight individuals with listed disabilities and any resident counselors or staff constitute a family for zoning purposes.

The statute also clearly states that "[n]o conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption shall be imposed on such facility."[8] Although it could have done so, the General Assembly did not require that anyone who was to provide any form of services at the facility must also reside at the facility. Instead, the statute clearly and unambiguously requires that single family residences as defined by the statute be treated the same as all other single family residences. This mirrors the requirement of general zoning law that "zoning regulations shall be uniform for each class or kind of buildings and uses throughout each district."[9] Requirements not imposed on traditional single family residences cannot be imposed on those facilities included within the scope of § 15.2-2291(A).

Conclusion

Accordingly, it is my opinion that § 15.2-2291 of the Code of Virginia does not require all counselors and other staff persons to reside at a facility for individuals with mental illness, intellectual disability, or development disabilities in order for the facility to qualify as a residential occupancy by a single family for zoning purposes.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] See COUNTY OF YORK, VA., § 24.1-104. I note, however, that this local definition of "family" differs to some extent from the wording of § 15.2-2291(A). Nevertheless, because the terms of § 15.2-2291(A) are mandatory as to localities, these linguistic differences are inapposite to the herein stated legal analysis and conclusions. See VA. CODE ANN. § 1-248 (2011); and see Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 576, 727 S.E.2d 40, 46 (2012).

[2] Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117 (2010) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)).

[3] Va. Real Estate Bd. v. Clay, 9 Va. App. 152, 157, 384 S.E.2d 622, 625 (1989).

[4] Commonwealth v. Amerson, 281 Va. 414, 421, 706 S.E.2d 879, 884 (2011) (quoting Virginian-Pilot Media Cos. v. Dow Jones & Co., 280 Va. 464, 469, 698 S.E.2d 900, 902 (2010)).

[5] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011)).

[6] See VA. CODE ANN. § 15.2-2286(A)(5) and (14) (2012).

[7] I construe the phrase "with one or more resident counselors or other staff persons" as modifying both the term "counselors" and the term "staff persons" with the word "resident." "Generally, phrases separated by a comma and the disjunctive 'or' are independent." Lampkins v. Commonwealth, 44 Va. App. 709, 717, 607 S.E.2d 722, 726 (2005) (citing Smoot v. Commonwealth, 37 Va. App. 495, 501, 559 S.E.2d 409, 412 (2002)). Nevertheless, in the quoted phrase no comma separates the terms "counselors" and "staff persons," so they may be construed together for matters of interpretation and the application of modifiers. See, e.g., Washington-Virginia Ry. Co. v. Fisher, 121 Va. 229, 234-35, 92 S.E. 809, 811 (1917) (holding that the word "county" within the phrase "every county road or highway" modifies both the terms "road" and "highway").

[8] Section 15.2-2291 (2012).

[9] Section 15.2-2282 (2012).