H. B. 4248
(By Mr. Speaker, Mr. Kiss, and Delegate Ashley)
[By Request of the Executive]
[Introduced February 3, 1998 referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, two, three and four,
article seventeen, chapter twenty-seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to prohibiting housing discrimination against
individuals with disabilities; amending definitions and
defining group residential homes, eliminating special zoning
requirements for group residential facilities and group
residential homes; eliminating the complaint process for
residents of a contiguous area of a zoning district in which
a group residential facility is located; and providing that
group residential homes are not subject to licensure.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three and four, article seventeen,
chapter twenty-seven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 17. GROUP RESIDENTIAL FACILITIES.
§27-17-1. Definitions.
(a) "Developmental disability" means a chronic disability of
a person which: (1) Is attributable to a mental or physical
impairment or combination of mental and physical impairments; (2)
is likely to continue indefinitely; (3) results in substantial
functional limitations in self-direction, capacity for
independent living or economic self-sufficiency; and (4) reflects
the person's need for a combination and sequence of special,
interdisciplinary or generic care, treatment or other services
which are of lifelong or extended duration and are individually
planned and coordinated.
(b) "Behavioral disability" means a disability of a person
which: (1) Is attributable to severe or persistent mental
illness, emotional disorder or chemical dependency; and (2)
results in substantial functional limitations in self-direction,
capacity for independent living or economic self-sufficiency.
(c) "Group residential facility" means a facility which is
owned or leased by a behavioral health service provider and
which: (1) Provides residential services and supervision for
individuals who are developmentally disabled or behaviorally
disabled; (2) is occupied as a residence by not more than eight
individuals who are developmentally disabled and not more than three supervisors, or is occupied as a residence by not more than
twelve individuals who are behaviorally disabled and not more
than three supervisors; (3) is licensed by the department of
health or the department division of human services; and (4)
complies with the state fire commission for residential
facilities.
(d) "Group residential home" means a building owned or
leased by developmentally disabled or behaviorally disabled
persons for purposes of establishing a personal residence. A
behavioral health service provider may not lease a building to
such persons if the provider is providing services to the persons
without a license as provided for in this article.
§27-17-2. Permitted use of group residential facilities;
restrictions.
(a) Both a group residential facility and a group
residential home shall be a permitted residential use of property
for the purposes of zoning and shall be a permitted use in all
zones or districts. No county commission, governing board of a
municipality or planning commission shall require a group
residential facility, its owner or operator, to obtain a
conditional use permit, special use permit, special exception or
variance for location of such facility in any zone or district.
Provided, That no more than one such facility may be located on
the same block face in any municipality, or within twelve hundred feet, measured from front door to front door, in any area not
within a municipality: Provided, however, That the owner or
operator of such group residential facility shall, in all cases
of such facilities located within zoning districts or zones,
submit an application for any required zoning or occupancy permit
allowed under provisions of this section to the appropriate
zoning permit agency on or before the date of submission of the
application to the department of health or the department of
human services
(b) Any resident of the contiguous area of a zoning district
limited to single-family or duplex-family residences in which a
group residential facility is located, may file a complaint with
the director of the department of health or the commissioner of
the department of human services, as applicable. If the
complaint states specific conduct on the part of an individual
placed in that facility or other specific facts regarding such
individual which adversely affect public health and safety, upon
the receipt of such a complaint the director or commissioner
shall cause to be made an investigation of the facts alleged. If
the director or commissioner determines that the alleged facts
may have a substantial basis, the director or commissioner shall
cause a full reconsideration of the decision to place that
individual in that group residential facility in light of those
facts. The results of the reconsideration shall be given to the complainant in writing with an explanation of the reason for the
decision: Provided, That this requirement shall not be deemed to
authorize the disclosure of information that the director or
commissioner would not otherwise disclose without written release
by the individual unless a release for this purpose is obtained.
§27-17-3. License from director of health; application;
regulations; revocation.
(a) No group residential facility shall be established,
maintained or operated unless a license therefor shall be first
obtained from the director of health, except that a group
residential facility for behaviorally disabled juveniles shall be
deemed to satisfy all requirements of this section by obtaining
a license from the commissioner of human services. The
application for such license shall contain such data and facts as
the director may require. The director may promulgate reasonable
regulations for the conduct of such facilities, including, but
not limited to, a statement of the rights of patients in group
residential facilities for the mentally and physically impaired
to ensure the adequate care and supervision of such patients, and
shall have the authority to investigate and inspect any such
facility, and may revoke the license of any such facility for
good cause after notice and hearing.
(b) A group residential home is not required to obtain a
license from the director of health.
§27-17-4. Exclusion by private agreement void.
Any restriction, reservation, condition, exception or
covenant in any subdivision plan, deed, or other instrument of or
pertaining to the transfer, sale, lease or use of property which
would permit residential use of property but prohibit the use of
such property as a group residential facility or group
residential home shall, to the extent of such prohibition, be
void as against the public policy of this state and shall be
given no legal or equitable force or effect.
NOTE: The purpose of this bill is to bring the state code
into compliance with the Federal Fair Housing Amendments Act of
1988.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.