Segregating the Poor and Disabled

SEGREGATING THE POOR AND DISABLED

May 5, 2006

On June 27, 1995, spurred by cries of over-saturation in Allentown, the Common Council enacted what it called a “Restricted Use Permit” Ordinance, Buffalo’s first zoning restrictions directed specifically at “Human Service Facilities.” Only David Collins dissented. With Allentown awash in simian fright and snobbery, the Erie County Legislature had, barely two weeks earlier, convened its own “Social Services Siting Committee,” explicitly designed to put these same human services providers through the funding blackmail wringer if they dared to propose West Side locations.

That month the air, itself, seemed over-saturated with hate. At the June 20th Common Council Public Hearing on the proposed Ordinance, block club members shouted down a lone voice objecting to passage of a law targeting the disabled, minorities and the poor. On June 14th, to the loud acclaim of neighborhood association and business group partisans attending the very first Siting Committee meeting, the Deputy County Executive proposed a ban on all new West Side human service sites.

Subsequently, in 1998, denied a Restricted Use Permit after a required and inflammatory public hearing marked by the shameless grandstanding of certain Common Council members, an innovative homeless drop-in center brought suit in Federal District Court, successfully challenging the City’s use of the Ordinance against the center as violating the Americans With Disabilities Act, the Rehabilitation Act and various State and local laws.

In November, 2002, after an extensive study of the specific operation of the Permit process from 1996 through 2001, the State Attorney General’s office in Buffalo notified City attorneys that the City was applying the Ordinance inconsistently.

In June, 2003, perhaps in response to these broadsides, the Council significantly amended the Ordinance, making the process less political by removing Permit decisions from the Common Council to the Zoning Board, but also placing an impossible burden on human services providers to demonstrate that their presence would not adversely impact neighborhoods. Indeed, the new law replaced a percentage standard for measuring adverse neighborhood impact with a subjective “alter the character” standard, actually increasing the likelihood of arbitrary denials, and exacerbated that perversion by retaining the incendiary public hearing requirement, disguised in the domino of the general Zoning Code.

In April of that same year, after three full years of collaborative study, work and give and take, a coalition of service providers and a handful of their clients, known as the Inclusion Task Force (ITF), organized by HOME Director Scott W. Gehl, had agreed to propose to the City a Siting Ordinance the group had written with an eye to minimizing discriminatory impact on the disabled poor. The organization had considered and agreed with arguments that any zoning regulation aimed exclusively at social service providers and their clients was discriminatory, but opted to work in the real world. Upon presenting the proposal to the Corporation Counsel in early June, the ITF learned of the Common Council’s proposed amendments and scrambled to organize support among the lawmakers. But the Council went its own way.

The Inclusion Task Force kept at it and continued to advocate for their submission to the Council throughout 2003, filing it and bringing it up for discussion before the Legislation Committee. The hallmarks of ITF’s original plan included an accommodating statement of intent, a shift of authority from the Council to the Planning Board, the automatic grant of a Permit if objective concentration percentages were not exceeded, and an optional rather than a required public hearing if the percentages were exceeded.

Invited to “meld” its proposal with the existing Ordinance by the Chair of the Legislation Committee in February, 2004, the ITF went back to the drawing board and, in October, 2004, after the existing Ordinance had expired and was not re-enacted, proposed a “melded” Ordinance, again designed to limit assaults on the disabled and the poor. The melded proposal kept the conciliatory tone, went along with the shift of authority from the Council to the Zoning Board, and replaced the automatic grant with a presumption of “no adverse impact” when concentration did not exceed the “bright line” percentage. Under the general Zoning provisions, any application to the Zoning Board is subject to a public hearing and the melded version did not change that. In November, the Council tabled the proposal for an opinion by the Corporation Counsel.

The Task Force prodded City lawyers for an opinion on the proposed “melded” Ordinance and, finally, in July, 2005, they responded. An Assistant Corporation Counsel explained that the Ordinance had expired in July, 2004 and that her office would not approve any further such provisions or amendments because State jurisdiction pre-empted local regulation of these matters.

Given these assurances, but also aware of evidence that the City had cynically continued to enforce the expired rules, in August, 2005 the Task Force adopted a “watchful waiting” stance. Certainly no Ordinance was better even than the Task Force’ original version. But the group would protest the City’s continued exercise of non-existent authority and ask the Council’s Legislation Committee Chair to advise them of any attempts to revive the lapsed Ordinance.

And that is just what happened. Echoing Allentown’s 1995 xenophobic outburst, the Parkside area erupted in intolerance when, in February, 2006, a provider of residential chemical dependence treatment sought to locate in a 70 year-old industrial building at Main and Amherst Streets. The Council responded with a resolution to “restart” the extinct Restricted Use Permit Ordinance. But because it had a more human alternative all ready to go and an intact communications structure, the Task Force was able to act effectively.

The group resumed its dialogue with the Corporation Counsel’s office, which now, part of a new regime, felt no longer bound to respect its earlier position that it would not approve such an Ordinance. The Task Force then returned to its advocacy before the Common Council at a public hearing and at a special meeting of the Legislation Committee, called expressly to examine the ITF’s “melded” version of the law. As of this writing, on May 5, 2006, the Corporation Counsel is working on a draft which will, hopefully, ease the discriminatory burden on social services providers and their clients.

The Restricted Use Permit Ordinance, as it existed, spawned numerous afflictions on the provision of services to the disabled poor. Among them were a deplorable tendency toward increased segregation of services into sections of the City in which opposition is muted or non-existent, such as industrial or abandoned areas; an equally dramatic and scary tendency to fan the flames of intolerance by grandstanding politicians and neighborhood residents at public hearings; a confirmed and steady drain on the resources and time of service providers resulting in fewer services provided; and extreme inconvenience in traveling to or total deprivation of services because of inaccessibility.

Inclusion Task Force supporters, including numerous HOME members and Insight readers, can rest assured that their efforts have set some limits on these offspring of intolerance.

William W. Berry

Link to: Essays Examining Xenophobia