Senate Bill No. 388

(By Senators Tomblin, Mr. President, and Buckalew,

By Request of the Executive)


[Introduced February 3, 1998; referred

to the Committee on the Judiciary.]


A BILL to amend and reenact article seventeen, chapter twenty- seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, 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 article seventeen, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

§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.)