Abstract
I. INTRODUCTION
When developers and interested parties seek to construct or expand elder care facilities in a neighborhood, clashes with local opposition may be common and begin long before breaking ground. As seen in the following blog post garnering support against the renovation of a nearby elder care facility, opponents of elder care facility developments can have legitimate concerns:
“Children and teachers at PS 163 would be subjected to a cacophony of deafening blasting, pile driving, jack hammering and riveting of the building's steel superstructure. Excavation of the proposed site would expose schoolchildren and the entire neighborhood to ambient lead dust and other toxic substances …. The proposed construction would cause severe health problems for those most vulnerable—children being particularly susceptible.”
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Other times, as seen by the following excerpt from a city council meeting in Florida, concerns may seem far less plausible:
“City councilmen, you simply can't approve this project. Think of what it will do to our neighborhood. If you allow this developer to build this monstrosity of a building in our neighborhood, it is going to ruin everything we have worked so hard for. City councilmen think of what is going to happen if you approve this project, if you allow this nursing home to be built in our backyards. We are going to have the stigma of being a retirement community, rather than the up-and-coming neighborhood. Our children won't be able to play in the streets because they will have to fear that an old person driving a car to the nursing home will not see them and hit them. We will have old people in bathrobes walking on our sidewalks in the middle of the day; imagine what that is going to do to our home value.”
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However, whether complaints are well-founded or not, zoning battles over the future of elder care facilities are happening across America.
For this paper, an “elder care facility” will be the term assigned to developments built to provide short and long-term professional assistance to senior citizens. 3 Elder care facilities consist of four general categories: (1) Independent/Senior Living, (2) Assisted Living, (3) Skilled Nursing Homes, and (4) Continuing Care Retirement Communities. 4
This Note focuses on the general complexity of the American zoning system and how nebulous special permit and variance laws can impose a higher burden on developers seeking to build elder care facilities. 5 Solutions to the zoning issue must streamline and update wildly different and often antiquated local ordinances defining elder care facilities. Additionally, a solution must facilitate the building of elder care facilities in more central and accessible areas within a community, rather than pushing these institutions to the outskirts of the community. 6
One potential solution lies in the creation of a federal land use statute dedicated to elder care facility development. The proposed statute would establish a national definition for elder care facilities as well as its subcategories. Furthermore, the federal government should incorporate a broad zoning exemption to the development of elder care facilities similar to the Dover Amendment in Massachusetts and the federal Religious Land Use and Institutionalized Persons Act. Overall, the goal is to make zoning regulations towards elder care facilities more clear-cut and less hostile, so developers will want to invest in and build elder care facilities before the impact of the aging American demographic comes into full effect.
II. BACKGROUND
A. The Changing American Demographic
The increasing importance of elder care facilities is closely related to incoming changes to the American demographic. America, like many other industrialized nations, is on the verge of an influx of people aged 65 and older. According to the U.S. Census Bureau, in 2016 there were approximately 73.642 million Americans under 18 years of age, 200.241 million between ages 18-64, and 49.224 million ages 65 and older. 7 Population projections for 2060 show that while there will be approximately a 14.7% increase in the under 65 age group, the 65 and older demographic will increase by approximately 92.3%. 8
The 2030s may be the watershed decade, when the youngest of the baby boomer generation will reach and exceed age 65. 9 If current trends hold, more Americans will be over the age of 65 (about 77.997 million) than 18 and under (about 76.664 million) in the year 2035. 10 Overall, this demographic phenomenon has been dubbed by academics and the media as “the silver tsunami.” 11
1. The Difficulties of Aging
As Americans reach seniority, the biological consequences of senescence are inevitable. For example, aging and increasingly sensitive skin becomes more susceptible to injury, fatigue hits harder and faster due to a weaker heart and higher blood pressure, maintaining body temperature becomes difficult, and loss of nerve cells results in slower reactions to environmental hazards. 12 The elderly are more prone to chronic disease which requires long-term care, and the demand for chronic illness care is projected to increase from 14% to 21% of the senior population by 2050. 13
Beyond physical degradation, mental health concerns such as loneliness also severely dampen the quality of life among the elderly. 14 Loneliness is “an aversive psychological state experienced when a discrepancy exists between desired and achieved quality of an individual's social relationships.” 15 In a survey done by the University of California San Francisco, 43% of surveyed seniors suffered from loneliness. 16 Loneliness presents a serious problem because it increases the risk of cognitive decline, Alzheimer's, stroke, obesity, and is said to be as damaging as smoking 15 cigarettes a day. 17 Poorer health outcomes from mental health disorders can prove more debilitating than physical ailments, and increase per capita medical costs by 47% to 200%. 18 Thus, we must find methods to mitigate and take care of the incoming tsunami of the elderly; one potential solution would be long-term care assistance through elder care facilities.
2. The Necessity of Long-Term Care Systems
According to a 2013 report by the Commission on Long-Term Care to Congress, approximately 70% of all Americans turning 65 would require long-term service and support from dedicated caregivers at some point. 19 Americans are growing more cognizant of this trend in elder care. According to an Associated Press Poll, about 48%of Americans believe that everyone will require long-term care at some point, 16% believe long-term care would be necessary once there is an illness or mobility issue, and 33% believe long-term care is necessary for a serious illness. 20
In the current landscape, a majority of long-term care consists of “unpaid caregiving,” or assistance provided by family members. 21 Although more affordable on paper, dedicating a relative to the care of “in-need” senior members of the family comes with its own unforeseen financial and emotional costs. For example, the time commitment and attention necessary for effective long-term care forces the dedicated relative to juggle providing care for their loved one, interacting with other family members, and maintaining their own social life. 22 Research shows that unpaid caregivers experience a decreased ability to maintain employment, as well as increased out of pocket spending. 23 As a result, unpaid care often leads to higher levels of financial stress. 24 In the 2011 National Health and Aging Trends Study and the National Study of Caregiving, 23% of caregivers who provided substantial assistance reported financial difficulty, compared to 12% of those who provided some care and 6.7% of those who provided no care.
Additionally, unpaid caregivers are often ineffective in combatting loneliness because other obligations result in little time to tend to a senior's emotional and social needs. 25 One major cause of loneliness is embarrassment and self-consciousness over the obvious signs of aging. Being cared for by a family member may be ineffective against loneliness because it fails to alleviate the senior's feeling that they are the only one who is aging. 26 Elder care facilities, on the other hand, offer an active social environment that can satisfy the health, emotional, and social needs of the elderly. 27
3. Elder Care Facility Market
In a study of occupancy rates for assisted living centers from 2006-2017 by the National Investment Center for Seniors Housing and Care, overall occupancy has hovered between 87-89% since 2010. 28 However, occupancy rates do not tell the whole picture, and there are positive signs for the industry. Inventory growth (the number of beds added to the market) has been higher on average from 2015-2017 than previous years and the absorption rate (percentage of beds which become occupied) has remained at 90% or higher, signaling an empirical increase in the overall assisted living market. 29
The inevitable flood of demand for elder care facilities has not yet arrived. Census Bureau data for 2016 shows there are currently 49.244 million Americans sixty-five and above, far less than the approximately 77.997 million in the 2035 projection. 30 Thus the elder care demand upsurge has not come into full swing, which is understandable, seeing how a single generation (the baby boomers) will be the source of the demographic shift. 31
As to how baby boomers will impact the assisted living market, a National Real Estate Investor paper predicts that 2026 will be the year when many baby boomers will begin moving into assisted living. 32 Using demographic data, if we assume that 2030 is the year all baby boomers will have reached the age of 65, and then take into account a 2015 study showing that 35% of the nursing home population is 75-84, we can expect a large spike in nursing home population around 2040. 33 This prediction supports projections showing long-term care spending increasing to $346 billionin 2040, compared to $219.9 billionin 2012. 34
Atlanta, Georgia is an example of a city in need of additional elder care facilities. Analysis conducted by the Atlanta Regional Commission in 2017 shows that the Metro Atlanta area is already experiencing a shortage in senior housing options. 35 The affordability of housing for seniors is a major contributor to the crisis. Nationally, 54% of seniors may be incapable of paying for assisted living and medical costs by 2029, even if they sold their homes and committed the entirety of their annual financial resources. 36 In Atlanta, seniors are already struggling, as only 51% of Atlantans 65 and older say they can afford a $400 emergency. 37 Zoning changes and incentives may be necessary to tackle the problem by increasing the quality and quantity of senior housing. 38
Overall, demographic and market forces foreshadow an increase in demand for assisted living and elder care facilities. We still have many years to the tipping point, since even when baby boomers hit sixty-five, there will still be a few years before new seniors will require assisted living. As a result, federal and state agencies, municipalities, developers, and community members have time to facilitate the building of elder care facilities. However, a major obstacle to the building of elder care facilities is zoning laws. Thus, incentivizing the construction of elder care facilities would require updates to local zoning ordinances.
B. The American Zoning Scheme
While population and market projections demonstrate the need for additional elder care facilities in the future, building more facilities is not a straightforward process. Zoning remains a key obstacle to the potential development of elder care facilities. With a better picture of how decisions are made in the American zoning system and how decisions, one can point to and resolve legal pains hindering developers seeking to build elder care facilities.
1. Introduction: Zoning's Euclidean Origins
This paper will utilize Massachusetts state law as the basis for analysis. Massachusetts serves as a good foundation that can be extrapolated on a national level because the state zoning statute's language and intent are similar to laws passed in other states. 39 Also, Massachusetts, through its Land Court, offers unique expertise and experience on zoning due to the court's specialized subject matter jurisdiction on issues involving real estate title and zoning. 40
Zoning, as a practical matter, represents municipal policies as to what people can build in any given location within its jurisdiction. 41 Massachusettsdefines zoning as “ordinances and by-laws, adopted by cities and towns to regulate the use of land, buildings, and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants.” 42 Under this law, municipalities have broad discretion to introduce zoning ordinances and by-laws to regulate new developments. 43 In theory, any new building project would have to be compliant to all applicable zoning ordinances and bylaws to be an “as of right” development (a building which can proceed with construction without additional permits). 44
Overall, there are several different approaches behind a municipality's zoning ordinances. The basic philosophy governing zoning in the United States is the Euclidean zoning theory. 45 Euclidean zoning takes its name from the landmark case, Village of Euclid, Ohio v. Ambler Realty Co., when the Supreme Court held that the power to set zoning codes is within a city's police powers. 46
Euclidean zoning views the city or town as a “machine, rather than an ever-evolving organism” and seeks to compartmentalize different plots of land for different uses. 47 Practically, local governments and zoning boards would divide the municipality into districts; each district would be a “zone” with limited land use options. For example, zoning boards can designate one area of the city as residential and another industrial. Industrial zones will ban the construction of residential buildings and vice versa. 48 Even though Euclidean zoning allows municipal governments to establish “bright line” regulations to dictate land use, the scheme faces the problem of being highly inflexible. 49 Inflexibility may hinder development and economic growth when developers begin to show interest in the area. Therefore, as adaptability begins to be more coveted and city planning becomes more fleshed out, municipalities began to flirt with other zoning schemes.
2. Alternative Zoning Schemes
A secondary zoning regime is performance zoning (or impact zoning), which is sometimes used in conjunction with Euclidean zoning schemes to increase the flexibility of an existing zoning district. 50 Impact zoning allows a municipality's regulators to permit new developments not initially allowed by the zoning ordinance to exist if the development meets separate performance-based standards based on potential impacts to the local community. 51 For example, a local zoning board of a town that practices performance zoning may allow a commercial building like a hotel to be built in a residential zone if it comes with a large parking lot (which offsets the increased traffic caused by the building and operation of the hotel). 52
Incentive zoning, which is similar to performance zoning, can be used by municipalities to get around the limitations inherent in Euclidean zoning. 53 Under incentive zoning, a city or town will permit developers to exceed preexisting limits if the development provides some form of benefit to the local community. 54 For example, imagine the case in which a developer wishes to build a large condominium complex with more floors than what the zoning ordinance allows. Under an incentive zoning scheme (and depending on the town's conditions and standards), he or she may be able to still have an as of right development (or be granted a special permit, a concept discussed later) if the condominium provides a satisfactory amount of affordable housing.
Municipalities also can implement a completely different regime to Euclidean zoning through a form-based zoning approach. 55 Rather than separating the land into zones and list permissible uses for each zone, form-based zoning focuses on the design of buildings and design choices. 56 The scheme judges proposed land use based on the character of the community and the desired relationship between the building, street, and public spaces. 57 In other words, a form-based zoning system is much more concerned with the aesthetic impact of a development on the community rather than the purpose of the building. Under the Euclidean zoning system, a zoning ordinance may include conditions such as a required setback (the distance between the wall of the building and the boundary of the lot) and a strict maximum height limit. 58 Meanwhile, in a form-based zoning system, an acceptable range of a required setback and a minimum height or height range for the building is used instead of a defined setback requirement.
The advantage of a form-based zoning system lies in its inherent flexibility. 59 Since a form-based zoning system approves buildings based on design rather than use, the scheme facilitates the entry of more businesses and different types of facilities into the community. 60 Also, developers are free to build mixed-use complexes without additional permits and variances, which can also increase real estate investments in the area. 61 However, because preserving the character of a community is an inherently vague and subjective concept, a form-based zoning system may cause problems because developers lack clarity as to when their project may be violating the zoning ordinance and thus require a permit or variance. 62
Overall, municipalities may implement a variety of different zoning schemes to determine the direction of local growth. The availability of different schemes also provides insight as to how arbitrary zoning regulations can be. For example, under a Euclidean scheme, municipalities with anti-elder care facility sentiment can easily pass definition-based by-laws which prohibit the building of such facilities in a given zone. Even under the more flexible form-based system, a municipality may find it easier to justify a denial of an elder care facility due to the scheme's inherently vague standards and intent. 63
However, rather than a flat ban, municipalities will likely pass special permit requirements and dimensional limits for the building of elder care facilities. After all, smaller, less drastic changes have a lower probability of political conflict and attention (similar to earmarks in congressional bills). As a result, developers seeking to build elder care facilities would often find themselves having to navigate through a hodgepodge of zoning regulations to obtain the necessary special permits and variances. 64
3. Special Permits
The collective zoning decisions that municipalities (or zoning boards) make manifest themselves in the form of zoning maps and land use tables. 65 Before any developer wishes to build an elder care facility, they would have to analyze to see what type of structures can be built as of right on the land. 66 If a municipality wishes to control (or prevent) the building of an elder care facility, the zoning board can include ordinances making it a requirement for developers to apply for a special permit before construction. 67
If zoning by-laws contain a special permit requirement for an elder care facility, a developer seeking to build would have to go through an approval process. 68 These processes can be long, drawn-out affairs that give opposition forces many opportunities to defeat the grant of the permit. Using Massachusetts as an example, the special permit process requires that a “special permit granting authority shall hold a public hearing … within sixty-five days from the date of filing of such application; … The decision of the special permit granting authority shall be made within ninety days following the date of such public hearing.” 69 The public hearing itself is a time-consuming affair where representatives of the developer are subject to a barrage of questions from the local zoning board and the public. 70 If a developer is not prepared to answer relevant questions by the time of their public hearing, they may have to delay the public hearing or risk rejection after a bad public showing. 71 However, even if the special permit process goes smoothly, it can still take up to 155 days. 72
In municipalities where opposition to elder care facilities exists, developers face an uphill battle for approval. Approval generally requires a supermajority of the local board. In Massachusetts, a developer must convince at least two-thirds of boards with more than five members, or at least four members of five-member boards, or all members of a three-member board. 73 Additionally, language dictating criteria for special permit approval is often vague and leaves the developer open to attack. For example, the town of Weymouth, Massachusetts will only grant special permits if “no undue nuisance, hazard, or congestion will be created and that there will be no substantial harm to the established or future character of the neighborhood nor of the town.” 74
4. Variances
Even if a developer may build an elder care facility or obtain a special permit to build, they may still have more zoning hurdles to climb. Beyond limitations as to the type of use, zoning regulations of any given municipality will also include dimensional limits. From setting the minimum height for a building to requiring a minimum amount of setback, municipalities have considerable discretion to impose seemingly arbitrary dimensional requirements. 75 These dimensional requirements may serve to dissuade developers from building an elder care facility in the neighborhood. 76 If a proposed building plan exceeds prohibited dimensional limits, developers would have to seek a variance, or an exception, to compliance given to the developer by the municipality. 77
In Massachusetts, municipalities can only grant variances when “circumstances relating to the soil conditions, shape, or topography of such land or structures … would involve substantial hardship, financial or otherwise, to the petitioner or appellant” if the developer follows the current zoning regulations. 78 Theoretically, if a developer can prove that local zoning laws cause hardships, a variance waiving applicable requirements will be granted. 79 Before approval, however, the town still has the discretion to deny a variance if it will lead to “substantial detriment to the public good” or “nullify[] or substantially derogat[e] from the intent or purpose of such ordinance or by-law.” 80
In totality, the language of Section 10 suggests that variances are supposed to be a safety valve for developers when zoning regulations prevent the feasible use of their land. As a result, towns are supposed to scrutinize variance applications strictly and are generally not supposed to grant them. Municipalities at least facially recognize this intent. For example, both the towns of Weymouth and Yarmouth warn on their website that the “criteria for a variance are very strict, [and] you might want to look at all of your options before applying.” 81
5. Zoning Ordinances In Practice
The statutory standard for special permits and variances is very strict. Yet more likely than not, municipalities will find themselves granting permits and variances at every zoning board hearing. The commonality of variances originates from the reality that land use involves local politics and power structures. 82 Zoning ordinances are confusing, anachronistic, and overly strict. 83 Although municipalities do have the power to simplify and make more lenient zoning ordinances, there is little to no incentive to do so. Zoning board meetings and the process of granting special permits and variances embody the municipality's control over the general growth of the neighborhood. If zoning ordinances give too much discretion to developers, municipalities will effectively lose control over the city planning process. 84 Such a result would be counterintuitive to the purpose of having zoning ordinances in the first place. Given free reign, municipalities would probably want developers to request a permit for every aspect of the building. However, municipalities do not have unlimited discretion, as zoning regulations which go too far will be considered a regulatory taking by the courts. 85 If ordinances are too restrictive, developers will not invest in a community, and it will lose potential growth and tax revenue.
In a community with sentiments against the building of elder care facilities, the zoning system and the permit/variance process demonstrate that towns can easily and effectively “zone out” facilities. Skeptics of the zoning system could claim that the combination of ordinances, permits, and variances is a way for towns to choose “winning projects” that generate the most tax revenue rather than what may be most essential to the community. After all, it is not unrealistic for towns to see elder care facilities as less profitable. Compared to a new office building, a market, or more residential units, an elder care facility is likely to generate less overall tax revenue. As seen from the excerpts earlier in this Note, some communities see elder care facilities as a potential reason for lower real estate values. Municipalities may also see elder care facilities as a burden if the town needs to increase expenditures due to increased senior services (which is subsequently hard to cut due to optics and political fallout).
However, it could very well be the case that a local zoning board has no intentions to stop the building of an elder care facility. Variances and special permits are only necessary because the municipality never updated its zoning ordinances and does not wish to change them (either due to a reluctance to fight a political battle over rezoning or if the town wishes to maintain its level of control over developers under currently antiquated laws). However, even if developers get all the necessary variances and permits without interference from the local zoning board, it does not mean that the battle has ended. As long as one nearby landowner is against the idea of an elder care facility in the neighborhood, they can fight the granting of the permit(s) and variance(s) in court.
One key issue in zoning board appeals is standing. Standing asks if a party can “plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect.” 86 If the plaintiff wins the standing issue, the developer will have to either settle the case or stop the project. 87 Even if the court determines that the plaintiff has no standing, the developer is forced to incur additional legal and delay fees. For a developer, the extra litigation cost may serve as a deterrent to building a senior facility.
C. Theoretical Timeline to Address Zoning Issues
In the previous sections, this Note discussed zoning schemes, broad municipal control over zoning, and how the system hinders the development of elder care facilities. The following section uses the real estate cycle to develop a theoretical timeline for municipalities to resolve zoning issues before a potential spike in demand for elder care facilities. 88
The real estate cycle generally describes the patterns dictating how developers will invest and build facilities (like nursing homes, senior centers, etc.). 89 The cycle consists of four stages: (1) Expansion, when the demand for living units is higher than the supply, but the rate of growth of supply is greater than the rate of growth of demand; (2) Hyper supply, when the supply of new units starts to overtake demand; (3) Recession, when supply significantly outpaces demand, and the rate of supply growth begins to slow to a halt; and (4) Recovery, when, after the decrease in supply (and the rate of supply), rate of growth in demand begins to overtake the supply rate. 90 Real estate developers whose predictions parallel the real estate cycle would be surveying and buying property for elder care facilities years before the projected demographic shift.
Overall, the fact that the American population is aging is undeniable. Many Americans acknowledge that elder care facilities are necessary to tackle the health and social problems associated with aging. While we have not yet seen the full power of the effect of aging, demographic projections and the real estate cycle give communities a theoretical timeline from now to approximately 2040 to implement potential solutions. 91 In the next section, this Note will articulate the solution to the zoning problems facing elder care facilities.
III. PROPOSED SOLUTION
A. Creating an “Elder care Facility ” Zoning Exception
Municipalities have broad discretion and many tools when making zoning decisions. Therefore, to effectively incentivize development, any solution has to provide broad protection. Broad protection is necessary because zoning regulations and decisionmakers vary among municipalities. The following sections introduce a proposed solution of constructing a statute granting broad zoning rights to elder care facilities.
One solution to prevent municipalities and opposition groups from using zoning to prohibit the building of elder care facilities lies in the passage of a federal land use statute. A federal statute can override state ordinances through the supremacy clause. 92 As a result, a federal land use statute would be applied to all of the states uniformly and simultaneously. Uniformity allows the establishment of a universal definition of elder care facility for zoning purposes. This definition will override conflicting, nonexistent, or antiquated municipality definitions and give developers immediate clarity. 93 If we took a state by state approach, it might be the case that: (1) drawn out and difficult political battles would ensue because the statute would have to go through the legislative process of each state (for example, if certain states pass the statute and other states reject it, disparities would diminish the overall goal); (2) more local concerns will likely bolster opposition and derail the debate; and (3) states may come up with different definitions for elder care facilities, which will lead to uneven impact. Understanding the importance of a federal statute, we can begin to construct the language of the law itself.
1. Setting the Foundation
Overall, the proposed statute would include the universal definition and language prohibiting zoning ordinances from regulating or restricting the use of land if the developer wishes to build an elder care facility. Before constructing the statute, however, it must be noted that state and federal statutes successfully limiting the power of municipal zoning ordinances already exist in Massachusetts's Dover Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). 94 These two pieces of legislation will serve as a foundation for the proposed statute.
i. The Dover Amendment
Massachusetts General Laws Chapter 40A, Section 3, is also known as the Dover Amendment. 95 The Dover Amendment grants protection against local zoning ordinances and by-laws for certain uses of land. Thus, the Dover Amendment provides insight as to how a statute granting broad zoning rights to elder care facilities will work.
In Massachusetts, religious and educational facilities faced similar zoning discrimination in the early 1900s that elder care facilities face today. 96 For example, in 1933, the town of Dover, Massachusetts, passed a zoning by-law limiting land use in its residential district but permitting the building offacilities for “educational use.” 97 In 1946, the town of Dover amended the by-law to define educational use as “non-sectarian and … not organized or operated for private profit.” 98 In response to Dover and other municipalities' by-laws that effectively prohibited the building of religious schools, the state legislature added the following language to the state's zoning statute: “No by-law or ordinance which prohibits or limits the use of land for any church or other religious purpose or which prohibits or limits the use of land for any religious, sectarian or denominational educational purpose shall be valid.” 99 Municipalities tried to work around the Dover Amendment through dimensional limits, but the Supreme Judicial Court struck down those by-laws because they would effectively nullify the amendment (though, in dicta, the court also held that towns might impose restrictions in certain cases). 100 As time passed, Courts upheld the power of municipalities to impose reasonable regulations such that they do not nullify the intent of the Dover Amendment. 101 Compared to the original Dover Amendment, the modern-day statute has expanded protections to uses such as agriculture, education, and childcare. 102 The expansion of the Dover Amendment shows the feasibility of adopting similar language to protect elder care facilities.
ii. Religious Land Use and Institutionalized Persons Act
While the Dover Amendment is an example of a statute giving broad zoning protection to certain types of land use, it is still only a state statute. As noted previously, the best way to protect the development of elder care facilities is through a federal statute. One critique may be the constitutionality of a federal approach to zoning and land use because it is a local matter. RLUIPA is an example of a federal statute granting zoning protection to certain uses of land. The following section will introduce the history of RLUIPA and challenges to the law's constitutionality.
Practically, RLUIPA “protect[s] individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws.” 103 RLUIPA passed as the successor to the Religious Freedom Restoration Act (“RFRA”). RFRA became law in 1993 as a response to Employment Division, Dept. of Human Resources of Oregon v. Smith, when the Supreme Court held that laws that are generally applicable and do not prohibit specific religious actions do not violate the free-exercise clause of the First Amendment. 104 Generally speaking, RFRA wrote into law the compelling interest test to determine when the government can restrict religious freedom. 105 One goal of RFRA was to offer federal protections for religious land use. 106 An accompanying senate report to RFRA states that “state and local legislative bodies cannot be relied on to craft exceptions … to protect the ability of religious minorities to practice their faiths.” 107
However, in City of Boerne v. Flores, the Supreme Court held that RFRA did not apply to state and local government decisions when a local zoning board denied a church's application for a building permit. 108 After Boerne, Congress held hearings to determine areas of law prone to religious discrimination; land use was one key area identified by the reports. 109 RLUIPA was passed in 2000 as a direct response to those congressional findings. Critics of the law claim RLUIPA is unconstitutional because the act of supporting a religious interest over a state or local government interest is a violation of the Establishment Clause, and RLUIPA is not part of the federal government's enumerated powers. 110 In Cutter v. Wilkinson, the Supreme Court rejected an Establishment Clause challenge. 111 In Charles v. Verhagen, the Seventh Circuit answered criticism that RLUIPA is not within the enumerated powers and upheld the law as a valid exercise under Congress's Spending Clause authority. 112 In Freedom Baptist Church of Del. Cty. v. Twp. of Middleton, the Eastern District of Pennsylvania upheld RLUIPA's constitutionality by holding the statute as a valid exercise of the Commerce Clause and the Free Exercise Clause. 113
Overall, cases involving RLUIPA demonstrate the feasibility and constitutionality of using federal law to protect specific uses of land. Similar to how the Dover Amendment expanded to include additional uses over the years, we can expand RLUIPA by importing its language to a new statute and retooling it to protect elder care facilities.
B. Constructing the Statute
The previous sections demonstrated how the Dover Amendment and RLUIPA provide the framework for a statute granting broad zoning rights to elder care facilities. The Dover Amendment and subsequent case law provide an image of how states may interpret the statute. RLUIPA provides a framework of how a federal law granting broad zoning rights may look and serves as evidence that this proposed statute can survive a constitutional challenge. With the foundations set, we can generate the language of the proposed federal statute.
1. Constructing Definitions
First, the statute would need to establish an applicable definition of elder care facility. As noted previously, there are four general categories of residential care for seniors: (1) independent living facilities; (2) assisted living facilities; (3) skilled nursing homes, and (4) continuous care resident communities. These categories serve as a foundation to construct the definitions for the statute.
i. Independent Living Facility
Independent living facilities are also known as retirement communities, retirement homes, or senior housing. 114 Unlike the other categories of elder care facilities, senior citizens who utilize independent living communities have both mental and physical capacity to live without professional assistance. 115 However, as mentioned earlier, loneliness is also a major issue faced by the elderly population. Independent living is thus an importanttool to combat loneliness and deserves to be defined in the statute.
The definition of an independent living facility can be imported from Section 202 of the Housing Act of 1959. Section 202 is a program run by the Department of Housing and Urban Development (“HUD”), which grants capital advances to support the development of housing for the elderly.
116
For low-income senior citizens, Section 202 provides subsidies to help them afford these housing options.
117
A development project eligible for a Section 202 grant must:
“[Provide] a range of services tailored to the needs of the category or categories of elderly persons (including frail elderly persons) occupying such housing. Such services may include (A) meal service adequate to meet nutritional need; (B) housekeeping aid; (C) personal assistance; (D) transportation services; (E) health-related services; (F) providing education and outreach regarding telemarketing fraud … and (G) such other services as the Secretary deems essential for maintaining independent living.”
118
Thus, the definition of an independent living facility is a building that provides all of the services stated above. One potential modification would be to change “Secretary” to “state” or “applicable state entity.” Whereas “Secretary” would allow centralized control under the relevant federal government agency, allowing the state to determine what other services may be needed will allow them to tailor the statute to the specific elder care needs of the state. 119
ii. Assisted Living Facility
Assisted living is “part of a continuum of long-term care services that provides a combination of housing, personal care services, and health care designed to respond to individuals who need assistance with normal daily activities in a way that promotes maximum independence.” 120 Assisted living facilities offer personal care services, supervision, and assistance to minimize the need for relocation and provide immediate accommodation to the senior's needs. 121 Unlike independent care facilities, assisted living facilities serve seniors who may be unable to live independently due to Alzheimer's, dementia, or some other medical condition or disability. 122 Assisted living facilities differ from skilled nursing and continuous care resident facilities in that they do not serve residents who require continuous nursing or medical care. 123
In most states, for a party to own and operate an assisted living facility, operators must register with the appropriate state authority and obtain applicable licenses and certifications. 124 Therefore, one method of developing a definition for assisted living facilities would be to analyze definitions provided by state statutes governing assisted living facilities. In this paper, I will use New York, Massachusetts, and Florida as the foundation.
In New York, the state's Public Health Law defines assisted living facilities. Under the statute, an assisted living facility is an entity which,
“provides or arranges for housing, on-site monitoring, and personal care services and/or home care services (either directly or indirectly), in a home-like setting to five or more adult residents unrelated to the assisted living provider … [and] must also provide daily food service, twenty-four hour on-site monitoring, case management services, and the development of an individualized service plan for each resident … promote[s] the resident's dignity, autonomy, independence and privacy in the least restrictive and most home-like setting commensurate with the resident's preferences and physical and mental status.”
125
In Massachusetts an assisted living facility needs to meet the following criteria:
“1. provides room and board; and 2. provides, directly by employees of the entity or through arrangements with another organization which the entity may or may not control or own, assistance with activities of daily living for three or more adult residents who are not related by consanguinity or affinity to their care provider; and 3. collects payments or third party reimbursements from or on behalf of residents to pay for the provision of assistance with the activities of daily living or arranges for the same.”
126
In Florida, an assisted living facility is defined by Florida Statute Chapter 429.02. Under Chapter 429.02, an assisted living facility is:
“any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, regardless of whether operated for profit, which through its ownership or management provides housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.”
127
With existing statutory definitions, a concrete definition of an assisted living facility can be formed by merging useful pieces of the definitions. For example, taking the Florida statute for a general description, the Massachusetts service providerdescription, and the New York list of services provided, theresulting definition would be the following:
“Any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, regardless of whether operated for profit, which through its ownership or management provides (Florida) directly by employees of the entity or through arrangements with another organization which the entity may or may not control or own (Massachusetts) housing, on-site monitoring and personal care services and/or home care services, in a home-like setting to five or more adult residents unrelated to the assisted living provider. The provider must also provide daily food service, twenty-four-hour on-site monitoring, case management services, and the development of an individualized service plan for each resident to promote the resident's dignity, autonomy, independence and privacy in the least restrictive and most home-like setting commensurate with the resident's preferences and physical and mental status (New York).”
iii. Skilled Nursing Home
Skilled nursing homes directly tackle health problems by providing professional nursing and therapy care. 128 For the proposed statute, the definition of skilled nursing homes can be directly imported from Medicare/Medicaid statutes for nursing homes. Medicare Part A is particularly useful in this case because the plan only pays for skilled nursing facilities and not custodial care. 129 The adoption of Medicaid and Medicare's requirements for a nursing home stems from the government's position as the largest health insurance entity in America. 130 As a result of the prevalence of Medicare and Medicaid, the two programs provide substantial funding to help America's aging population receive help from nursing homes. For example, in 2013 and 2014, the number of nursing homes totaled 15,638 and 15,640, respectively. 131 For those two years, the number of nursing homes certified by Medicaid and/or Medicare was 15,629 and 15,634. 132 Therefore, 99.94% and 99.96% of nursing homes in 2013 and 2014 had patient fees subsidized to some extent by the federal government. Thus, retaining the Medicare/Medicaid definitions makes it convenient for regulators and developers by maintaining consistency across statutes.
iv. Continuing Care Retirement Communities
Continuing care retirement communities offer the full range of services provided by the other categories of elder care facilities. 133 In exchange for a premium (entrance and month fees), continuing care retirement communities offer lifetime housing with tailored recreational and professional services to accommodate senior citizens' changing needs. 134 A definition for continuing care retirement communities must satisfy its ultimate goal of allowing a senior citizen to age in place. 135 Aging in place refers to a senior's conscious decision to choose a residence and stay there for as long as they can, through the utilization of supplemental services. 136
Florida Statute Chapter 429.02 serves as an excellent foundation to develop a legal definition. Under the statute, “age in place” is defined as:
“the process of providing increased or adjusted services to a person to compensate for the physical or mental decline that may occur with the aging process, in order to maximize the person's dignity and independence and permit them to remain in a familiar, noninstitutional, residential environment for as long as possible. Such services may be provided by facility staff, volunteers, family, or friends, or through contractual arrangements with a third party.”
137
In addition, Massachusetts's Executive Office of Elder Affairs provides a list of services offered by continuing care retirement communities, which includes: nursing, health-care services, meals, housekeeping, emergency services, personal care, recreational and social activities, security, and grounds maintenance. 138
Taking relevant concepts and statutes into account, continuing care retirement communities can be defined as facilities that offers a combination of housing options which enables qualified residents to age in place. The definition of age in place can then be imported directly from Florida's statute.
2. Statutory Zoning Rights Language
Once standardized definitions are set, the next step would be to develop language that will grant broad zoning rights to the development of elder care facilities. Statutory construction involves importing relevant language in RLUIPA to serve as the foundation of the proposed statute. The Dover Amendment will then be used to serve as a reference to modify the base language to form a final product.
The relevant language from RLUIPA limiting municipal control over land used for religious purposes states:
“(a) Substantial burdens (1) General rule: No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution unless the government demonstrates that imposition of the burden on that person, assembly, or institution— (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”
139
The language in the Dover Amendment granting broad zoning rights states:
“No zoning ordinance or by-law shall regulate or restrict the use of materials, or methods of construction of structures regulated by the state building code, nor shall any such ordinance or by-law prohibit, unreasonably regulate, or require a special permit”
140
The first key difference between the Dover Amendment and RLUIPA is the use of “no government” in RLUIPA compared to “no zoning ordinance or by-law” in the Dover Amendment. 141 For this statute, “no government” would be the preferred language because it offers broader protection. Although zoning ordinances and by-laws govern land use, other tools may be available for state and municipal governments. For example, what if a state or municipality uses administrative agencies and rules instead of laws. 142 If an agency, such as a local Department of City Planning, sets regulations rather than by-laws and ordinances, are they covered under the proposed statute? Zoning ordinances and by-laws can contain language pushing discretion for dimensional and other requirements to other government bodies. In this scenario, we see that unreasonable requirements from regulations create a loophole in the statute. Therefore “no government or government entity” offers a greater degree of protection.
The second difference would be “imposes a substantial burden” compared to the list of activities in the Dover Amendment. Here, the language of the Dover Amendment should be adopted. While “substantial burden” may grant broader protection, it does not do an optimal job of helping interested parties identify protectable actions. The list in the Dover Amendment provides courts and affected parties a better idea as to protected activities under this statute. 143
Considering the changes mentioned in this section, we can then repurpose the statute by removing references to religious use and replacing it with elder care facilities; then change “person, assembly or institutions” to “persons.” Furthermore, the “imposition of the burden” language should be changed to “imposition of the land use regulation” to allow for consistency due to the removal of “substantial burden.” The resulting statute would be the following:
“(a) Substantial burdens (1) General rule: No government shall impose or implement a land use regulation in a manner that regulates or restricts the use of materials, or methods of construction of structures regulated by the state building code, nor shall any such ordinance or by-law prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of elder care facilities as defined by §_, unless the government demonstrates that imposition of the land use regulation on that person or persons— (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”
This paper acknowledges that there is still much work to be done and that many questions will arise during the implementation of our proposed statute. For example, state and municipal governments still retain the right to make reasonable limitations; the definition of “reasonable” needs to be fleshed out with case law. However, this sample statute and the definitions of elder care facilities discussed set up a framework for future laws granting broad zoning rights to elder care facilities.
IV. CONCLUSION
As Americans get older, elder care facilities are rising as a potential solution to meet the daily physical, mental, and social challenges that new seniors will inevitably face. However, a complex zoning system and wide municipal discretion often create significant hurdles preventing the development of elder care facilities. The government must realize that the impending wave of a rising elderly population is inevitable and that something must be done to facilitate the construction of elder care facilities.
Therefore, to promote the growth of elder care facilities, it is necessary to mitigate zoning hurdles. One method would be to implement a federal statute that grants broad zoning protections to elder care facility developments. The statute presented by this Note is only a framework, as evidenced by the litigation around applications of RLUIPA and the Dover Amendment today. By incentivizing the construction of elder care facilities, communities can be ready for the new wave of elderly citizens and ensure that the parents of every member of the community will be taken care of when the time comes.
Footnotes
Acknowledgements
Shou would like to extend special thanks to Hon. Robert B. Foster, Associate Justice at the Massachusetts Land Court, who served as faculty advisor to the development off this Note, and to Hon. Howard P. Speicher, Associate Justice at the Massachusetts Land Court, for his inspirational mentorship during the writing process.
1
Construction Dangers Threaten Health and Safety of Children and Staff at P.S. 163, N
].
2
Kasey A. Feltner, #Not in My Backyard, Granny: The Discoverability of a Public Official's Private Electronic Messaging Activity in Land Use Litigation, 5 S
3
Long-term assistance in the context of this Note will include both skilled and custodial care. “Elder care facilities” may also be referred to as senior care facilities, nursing homes and other names.
4
Different Types of Elder Care Communities, I]. Specific definitions of the different categories of elder care facilities, as well as their importance for a senior citizen's health and wellbeing, will be discussed when constructing the proposed statute.
5
Zoning Obstacles Facing the Developer of Senior Housing Options, F].
6
Exclusionary zoning regimes have become a major hurdle to the development of elder care facilities, effectively pushing them to the outskirts of communities. See Michael Kling, Zoned Out: Assisted Living Facilities and Zoning, 10 E
7
2017 National Population Projections Tables, U.S. C].
8
Id.
9
Older People Projected to Outnumber Children for First Time in U.S. History, U.S. C].
10
U.S. C].
11
Reenita Das, A Silver Tsunami Invades the Health of Nations, F].
12
Health Changes as You Grow Older, S].
13
Andrew Meola, Future Demand for Elderly Care Services Like Assisted Living & In-Home Care Are Rife for Digital Disruption, B].
14
Anne-Marie Botek, Combatting the Epidemic of Loneliness in Seniors, A].
15
Angie S. LeRoy et al., Loneliness Predicts Self-Reported Cold Symptoms After a Viral Challenge, 36 H
16
Leland Kim, Loneliness Linked to Serious Health Problems and Death Among Elderly, UCSF (June 18, 2012), https://www.ucsf.edu/news/2012/06/98644/loneliness-linked-serious-health-problems-and-death-among-elderly [].
17
Sachin H. Jain, Senior Loneliness is a Disease that Can and Should be Treated, W].
18
Stephan J. Bartels & John A. Nasland, The Underside of the Silver Tsunami: Older Adults and Mental Health Care, 368 N
19
C].
20
Trevor Tompson, et al., Long-Term Care: Perceptions, Experiences, and Attitudes among Americans 40 or Older, A].
21
“Unpaid caregiving” refers to support given to senior citizens by other members of their family. See Tom Daschle & Tommy Thompson, Who Will Care for America's Aging Population?, W].
22
Id.
23
N
24
Id.
25
Botek, supra note 14.
26
Id.
27
The Benefits of Living in a Nursing Home, S].
28
Beth Burnham Mace, Five Key Takeaways from NIC's Third Quarter 2018 Seniors Housing Data Release, N].
29
Id.
30
U.S. C
31
Older People Projected to Outnumber Children for First Time in U.S. History, U.S. C].
32
Donna Mitchell, Occupancy Rates for Assisted Living to Plateau in 2017 Before a Spike, N].
33
Selected Long-Term Care Statistics, F].
34
Id.
35
Mary Blumberg, Metro Atlanta's Senior Housing Shortage, A].
36
Health Affairs Study: More Than Half of Middle-Income Seniors Will Lack Financial Resources for Seniors Housing and Care by 2029, N].
37
Blumberg, supra note 35.
38
Id.
39
C].
40
See M
41
A Practical Guide to Understanding Zoning Laws, P].
42
M
43
See M
44
An as of right development “complies with all applicable zoning regulations and does not require any discretionary action” by local planning board and zoning board of appeals. Glossary of Planning Terms, NYC D].
45
Paul E. King, Exclusionary Zoning and Open Housing: A Brief Judicial History, 68 G
46
Village of Euclid, 272 U.S. at 389-90.
47
Eliza Hall, Divide and Sprawl, Decline and Fall: A Comparative Critique of Euclidean Zoning, 68 U. P
48
Rachel Watsky, The Problems with Euclidean Zoning, B.U. D]
49
One example of inflexibility would be how strict density restrictions create zones dedicated for the wealthy due to the effective impossibility of building affordable housing. See Richard Florida & Citylab, The Segregation That Zoning Inflicts on Cities, A].
50
Frederick W. Acker, Performance Zoning, 67 N
51
Types of Zoning Codes, R]; John R. Ottensmann, Planning Through the Exchange of Rights Under Performance Zoning, E
52
Another example performance zoning can be seen in Laconia, NH, where the local zoning board was proposing to not subject developments downtown to usual zoning restrictions if they help driving quality and innovative economic development. See Rick Green, #LaconiaCityBoxscore — March 30: City to Hold Zoning Hearings, L].
53
John J. Costonis, The Chicago Plan, Incentive Zoning and the Preservation of Urban Landmarks, 85 H
54
Id.
55
Emily Talen, Zoning for and Against Sprawl: The Case for Form-Based Codes, 18 J. U
56
Types of Zoning Codes, supra note 51, at 5, 6.
57
Id.
58
Talen, supra note 55, at 188-89.
59
Types of Zoning Codes, supra note 51, at 5, 6.
60
Form Based Code vs Traditional Code, C]; Types of Zoning Codes, supra note 51, at 5, 6.
61
F
62
Id.
63
Talen, supra note 55, at 176.
64
For the purposes of this paper, only regulations during the building process with be taken into account.
65
The following links are examples of zoning maps and land use tables from Nashville and New York City. Note that even in zones which are in close proximity to each other, they may be vastly different in what types of developments are permissible. See C].
66
Within any given zoning scheme, “as of right” may include, but is not limited to compliance to the following types of regulations: 1) the type of structure allowed in an area; 2) the dimensional limits of the structure; 3) any setback, driveway and other spacing requirements; 4) whether special structures or features would have to be added onto the building based on type of use; or 5) whether there are limitations on building/renovation due to landmark status. NYC D
67
Depending on the municipality, special permits may also be called conditional use permits.
68
Processes vary from state to state. An example of the special permit process can be seen in M
69
Id.
70
An example of a zoning board meeting can be seen by looking up videos and transcripts of cities and town which releases such information. See e.g., Boston City TV, Zoning Board of Appeal Hearings 09-25-18, Y].
71
Under Massachusetts General Laws Chapter 40A Section 9, the required time limits for a public hearing and said action may be extended by written agreement between the petitioner and the special permit granting authority. A copy of such agreement shall be filed in the office of the city or town clerk. See M
72
The total time of the special permit process varies by jurisdiction, but the estimate given by Massachusetts statute is not an outlier as other states have a similarly lengthy process. It must also be noted that certain localities, such as Manhattan, has its own unique process. See, e.g., N.Y. G
73
M
74
What Is The Difference Between A Variance And Special Permit?, C].
75
See, e.g., Krafchuk v. Planning Bd. of Ipswich, 903 N.E.2d 576, 529 (Mass. 2009) (granting local zoning board broad power over zoning requirements and waivers).
76
Administrative Discretion in Zoning, 82 H
77
It must be noted that variances are generally only given to get around dimensional regulations. While it is legally possible for a developer to get a variance for type of use, it is frowned upon and not often given by municipalities. For interested parties to use their land in a way prohibited by the zoning code, they would have to use the political process and convince the town to change the local zoning by-laws. This regime makes sense as use variances are counter-intuitive to the policy behind zoning and redundant. (For example, if the town was going to waive a zoning law's ban on building a gas station in the community because it is seen as beneficial, they might as well change to zoning code to allow it because the purpose of zoning codes is to allow a municipality to control and guide the direction of its growth.)
78
M
79
Id.
80
Id.
81
C].
82
J
83
M] (identifying that the town's zoning ordinances and policies for nursing home originated in 1960s).
84
Control is effectively lost because if zoning is so lenient to the point of granting a blank check to developers, then zoning no longer serves as a tool to control development through the power to refuse and permit plans.
85
Zoning ordinances are subject to takings challenges, which are ruled based on standards set by Lucas, the balancing test set in Pennsylvania Central Transportation v. New York City, and applicable state cases. See Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); Pa. Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978); Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922).
86
For the purposes of this Note, the standard for standing in Massachusetts is used. Although standards for standard is specific circumstances may differ among states, the general concept of standing does not vary significantly. Standerwick v. Zoning Bd. of Appeals of Andover, 849 N.E.2d 197, 203 (Mass. 2006); The Pendulum Swings in Massachusetts Standing Law in Zoning Appeals: The “Good Old Days”, P].
87
If a plaintiff is determined to have standing, the developer defendant would most likely settle or stop the project because the hardship requirement for variances is strict and subject to scrutiny. Simple variations in dimensions are highly unlikely to pass the hardship standard. In the case of special permits, developers may still win on the merits because courts generally give deference to a board's special permit decisions. See Humble Oil & Refining Co. v. Bd. of Appeals of Amherst, 276 N.E.2d 718 (Mass. 1971). Nevertheless, any resulting litigation is still time consuming.
88
William C. Wheaton, Real Estate “Cycles:” Some Fundamentals, 27 R
89
C
90
Id.
91
The timeline established by this Note is fully theoretical and created through an analysis of demographic changes and the real estate cycle.
92
U.S. C
93
This is similar to the reasons behind the need for a uniform choice of law in general, which is the assurance of predictable outcomes. See Larry Kramer, On the Need for a Uniform Choice of Law Code, 89 M
94
42 U.S.C. § 2000cc (2018); M
95
M
96
Bible Speaks v. Bd. of Appeals of Lenox, 391 N.E.2d. 279, 283 n.10 (Mass. App. Ct. 1979).
97
Id.
98
Id.
99
M
100
Bible Speaks, 391 N.E.2d at 284 n.11.
101
It must be noted that the Dover Amendment does not include specific language allowing for reasonable dimensional limits. See Martin v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 747 N.E.2d 131, 136 (Mass. 2001).
102
M
103
U.S. D].
104
See Emp't. Div., Dept. of Human Res. of Or. v. Smith, 494 U.S. 872 at 882-84 (1990); John R. Hermann,
Employment Division, Department of Human Resources of Oregon v. Smith, M].
105
See H.R. 1308, 103d Cong. (1993) (enacted).
106
Robert W. Tuttle, How Firm a Foundation? Protecting Religious Land Uses After Boerne Governing Two Cities: Civil Law and Religious Institutions: A Symposium - Regulating Sacred Space: Religious Institutions and Land Use Controls, 68 G
107
S. R
108
See City of Boerne v. Flores, 521 U.S. 507, 532 (1997).
109
Derek L. Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA's Prisoner Provisions, 28 H
110
Qasim Rashid, The Right to Enforce: Why RLUIPA's Land Use Provisions is a Constitutional Federal Enforcement Power, 16 R
111
Cutter v. Wilkinson, 544 U.S. 709, 719-20 (2005).
112
See Charles v. Verhagen, 348 F.3d. 601, 606-08 (7th Cir. 2003).
113
Freedom Baptist Church of Del. Cty. v. Twp. of Middleton, 204 F.Supp.2d 857 (E.D. Pa. 2002).
114
What Is Independent Living, A P].
115
Id.
116
Policy Guide: HUD Section 202: Supportive Housing for the Elderly, D]
117
Id.
118
12 U.S.C. § 1701q (2018).
119
This paper will not delve into whether services provided by independent living facilities should fall under the jurisdiction of HUD, CMS or some other government entity.
121
Id.
122
Id.
123
Lisa Newcomb, Assisted Living Residence, E]
124
Id.
125
See N.Y. P
126
M
127
F
128
Nursing Home Care, Medicare.gov, https://www.medicare.gov/coverage/nursing-home-care# [].
129
See 42 U.S.C. § 1395i-3 (2018). To have a fully functional definition, it is likely that the entirety of the statute covering skilled nursing facilities will have to be imported. For the purpose of readability, the statute will not be quoted, and it is suggested that the reader peruse the statute for details.
130
Jessica C. Barnett & Edward R. Berchick, Health Insurance Coverage in the United States: 2016, U.S. C].
131
C
132
Id.
133
How Continuing Care Retirement Communities Work, AARP (last updated Oct. 24, 2019) https://www.aarp.org/caregiving/basics/info-2017/continuing-care-retirement-communities.html [].
134
Id.
135
Continuing Care Retirement Communites (CCRC), A P].
136
Aging in Place - What Does Aging in Place Really Mean?, SeniorLiving.org, https://www.seniorliving.org/aging-in-place [].
137
F
138
Exec. of Elder Affairs, Continuing Care Retirement Communities, Mass.Gov, https://www.mass.gov/service-details/continuing-care-retirement-communities [].
139
42 U.S.C. § 2000cc (2018).
140
M
141
42 USC § 2000cc; M
142
Ernst J.T. Loo, State Land Use Statutes: A Comparative Analysis, 45 F
143
Note that even with the list of activities presented by the Dover Amendment, the concept of reasonableness is still a nebulous concept that often shows up in litigation. See, e.g., Martin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 747 N.E.2d 131, 137-139 (Mass. 2001).