48 [78 Op. Att’y

 Apart from the 1990 opinion, we have addressed FHAA issues in 1

78 Opinions of the Attorney General 40 (1993) (certain fire safety

requirements unrelated to the specific needs and abilities of a group

home’s residents violate the FHAA) and 74 Opinions of the Attorney

General 164 (1989) (siting requirements for group homes violate the

FHAA).

CIVIL RIGHTS AND DISCRIMINATION ) HOUSING —

APPLICABILITY OF FAIR HOUSING AMENDMENTS ACT TO

GROUP HOME NOTICE AND HEARING REQUIREMENTS

July 30, 1993

The Honorable Nelson Sabatini

Secretary of Health and Mental Hygiene

You have requested our opinion regarding the effect of the

federal Fair Housing Amendments Act (“FHAA”) on certain aspects

of the licensing process for group homes for the mentally ill or

developmentally disabled. 

In an opinion issued in 1990, we concluded that the public

notice and public hearing requirements of Titles 7 and 10 of the

Health-General Article, Maryland Code (“HG” Article), did not

violate the FHAA, although we advised that hearings under HG Title

10 had to be limited in various ways to avoid problems under the

federal law. 75 Opinions of the Attorney General 291 (1990).1

Your inquiry about the current legality of the notice and

hearing requirements is prompted by a recent decision of the United

States District Court for the District of Maryland that struck down

the notice and hearing requirements in the group home regulations

of Montgomery County. Potomac Group Home Corp. v.

Montgomery County, 823 F. Supp. 1285 (1993). 

In our view, the decision in Potomac Group Homes is a

development in the law that causes us to overrule the conclusions in

our 1990 opinion. The rationale of the federal court compels us to

conclude that if the Department continued to enforce the notice and
Gen. 48] 49

hearing requirements in HG Titles 7 and 10, the Department would

violate the FHAA. 

I

Notice and Hearing Requirements

HG Title 7, the Developmental Disabilities Law, requires that

when an application for a certificate of approval for a private group

home is filed, “the Secretary shall hold a public hearing on the

application.” HG §7-611(b). HG §7-611 also contains the following

provisions for public notice of the hearing: 

(c) (1) The Secretary shall publish a

notice of the hearing within 60 days of receipt

of the completed application. 

 (2) The notice shall state: 

 (i) The name of the applicant;

 (ii) The type of approval that is sought;

 (iii) The location of the proposed

private group home; and

 (iv) The time and place that the

Secretary sets for the hearing, which shall

be at least 7 but not more than 15 days

after the last publication of the notice.

(d) The notice shall be published at least

twice in 1 week:

 (1) In 2 newspapers published in the

county where the private group home is to be

located; 

 (2) If only 1 newspaper is published in

that county, in that newspaper; or 
50 [78 Op. Att’y

 HG §10-520(a)(2) also provides for notice to the governing body 2

for the county and the municipality and the General Assembly delegation

from the district where the private group home is to be located.

 (3) If a newspaper is not published in

that county, any newspaper with substantial

circulation in that county.

HG Title 10, the Mental Hygiene Law, contains a similar

requirement that “the Secretary ... hold a public information hearing

on [an] application” for the licensure of a private group home. The

hearing is to be held “in the county where the private group home is

to be located and as close as possible to the proposed location.” HG

§10-520(b)(2). The requirements for newspaper publication of a

notice of the hearing are substantially similar to the requirements in

the Developmental Disabilities Law. See HG §10-520(c). 

2

In 75 Opinions of the Attorney General 291 (1990), we

addressed the status of the hearings required by HG Titles 7 and 10

under the FHAA: 

[We cannot] conclude that the mere

holding of a public hearing necessarily

violates the federal Act. A decision on

whether to grant a license is best made after a

decisionmaker has as much pertinent

information as possible. A public hearing is a

reasonable means of acquiring information.

We know of no Fair Housing Act case

suggesting that hearings are per se

impermissible. 

75 Opinion of the Attorney General 291 at 294. The opinion then

focused on the manner in which hearings were held and concluded

that, while the nature of the hearings under HG Title 7 conformed to

the FHAA, certain modifications of the hearing process under HG

Title 10 were necessary. 75 Opinion of the Attorney General 304.
Gen. 48] 51

II

The Potomac Group Home Case

In Potomac Group Home Corp. v. Montgomery County, 823 F.

Supp. 1285 (1993), a provider of group homes for elderly persons

with disabilities and two residents of one of the homes challenged

certain aspects of the licensing procedure adopted by Montgomery

County for these group homes. Under the county ordinance, group

home providers must send letters to each neighboring property

owner of a proposed group home site, both adjacent and opposite, as

well as to neighborhood civic organizations. In these letters, the

provider is required to notify these individuals and groups of its

“plans to operate a group home on the site,” as well as certain details

about the type of person who will live there. 823 F. Supp at 1289.

As the court pointed out, “no other county law or regulation imposes

any similar requirement on a residence to be occupied by adult

persons who do not have disabilities.” Id.

The court found that such notices “have consistently provoked

negative reactions from neighbors of the proposed group homes.

Neighbors in the communities typically responded with an

outpouring of hostility vented by way of a letter writing campaign

opposing the proposed group home.” 823 F. Supp at 1290. Such

letters typically speak of a “lowering of property values.” Id. 

Montgomery County’s procedures also call for applications for

group home licensing to be reviewed and evaluated by a “program

review board.” Unlike the process under HG Titles 7 and 10, these

review hearings were not conducted routinely. Instead, they were

held “whenever neighbors of a group home are particularly vocal in

their opposition to the proposed home.” 823 F. Supp. at 1291.

Although the county insisted that the program review boards

were limited to “programmatic concerns,” like the worth of the

services of the group home provider, residents of the community

who appeared at review board hearings consistently presented

statements opposing the group homes. The statements included

“stereotypical views” of the people with disabilities who would live

in the group homes. 823 F. Supp. at 1290. 
52 [78 Op. Att’y

 Other issues in the case were not resolved by the court. Thus, an 3

appeal is not yet possible. The county, we are told, has not decided

whether to appeal in any event.

In granting the plaintiffs’ motion for summary judgment, the

federal court held that both the notice and hearing requirements of

the county’s procedures violated the FHAA. 

3

A. Notice

With respect to the “neighbor notification requirement,” the

federal court held it to be “facially invalid, unless supported by a

legitimate governmental interest,” because it was a requirement not

imposed on any family residential unit other than those to be

occupied by people with disabilities. 823 F. Supp. at 1296. The

court concluded “that no rational basis or legitimate governmental

interest supports the neighbor notification requirement.” Id. 

The county asserted that it did have a legitimate interest

underlying the notification requirement: to help the group home

become a part of the community. But the court rejected this

justification, holding that “a purportedly benign purpose of a facially

discriminating ordinance is irrelevant to a determination of the

lawfulness of the legislation.” Id. The problem with the

notification, the court continued, is that it necessarily assumes “that

people with disabilities were different than people without

disabilities and must take special steps to ‘become a part of the

community.’ This requirement is equally as offensive as would be

a rule that a minority family must give notification and invite

comment before moving into a predominantly white neighborhood.”

823 F. Supp. at 1296. 

Furthermore, the court held, the effect of sending out the

notification is not to help integrate the group home residents into the

community. Rather, “notices of this sort galvanize neighbors in their

opposition to the homes.” Id. Relying on evidence in the record of

the case, the court found that “the neighbor notification process has

caused a great deal of harm to the plaintiffs, provoking petitions and

letter writing campaigns in opposition to the proposed group homes.

The resulting stigma to [the] plaintiffs ... and other residents of [the]

group homes is not easily erased.” 823 F. Supp. at 1296.
Gen. 48] 53

B. Hearings 

With respect to hearings before the program review boards, the

federal court held that the requirement did not violate the FHAA on

its face. Id. But the court then went on to explain why the

requirement had a discriminatory effect and therefore violated the

FHAA as applied. First, the hearings have a stigmatizing effect: 

Like the neighbor notification rule, program

review board hearings are held under the

challenged requirement only for residential

facilities for the disabled. No other type of

residential home in Montgomery County is

subject to public scrutiny of this sort. 

823 F. Supp. at 1297. 

Second, the stigmatizing effect is compounded by “[t]he

community concerns and community prejudices [that] often

dominate these hearings ....” 823 F. Supp. at 1297. Although the

court acknowledged that the Montgomery County officials who

administer the program “themselves may not harbor prejudices of

this sort against the handicapped elderly, they have designed and

utilized a regulatory procedure which facilitates the expression of

these prejudices and which gives weight to such views in the

process.” Id. This discriminatory effect was aggravated by the way

in which Montgomery County held these hearings. The

neighborhood organizations themselves are represented by at least

one board member, whose comments cause the board to stray

beyond legitimate programmatic issues. In this way, the hearings

give “undue weight to the opinions of the neighbors ....” Id.

Furthermore, “what makes the discriminatory effect particularly

egregious in this case is that hearings are consistently held because

of public opposition to the group homes and for the purpose of

appeasing neighboring residents. This particular procedural step,

which is based essentially on illegal prejudices of the community,

causes great harm to plaintiffs because of resulting delays and

burdensome costs.” 823 F. Supp at 1298. 

 In considering whether Montgomery County had any

legitimate interest in continuing its hearing requirement, the court

held that the hearing process was neither a necessary nor an effective
54 [78 Op. Att’y

way of gathering legitimate information about programmatic

concerns: 

The record in this case reveals that defendants

can, and frequently do, review providers’

program statements without even holding a

public board hearing .... Moreover, evidence

of record indicates that neighborhood

representatives as a group have no particular

expertise concerning programmatic issues,

such as the type of care which should be

provided and the appropriate staffing for a

particular group home. Rather than assisting

defendants in assessing the programmatic

aspects of a provider’s statement,

neighborhood representatives most often

direct the attention of licensing officials away

from legitimate concerns. As such, it is

apparent to the Court that any legitimate

regulatory interest of defendants in reviewing

a provider’s program by way of holding a

public hearing of this sort is minimal. 

823 F. Supp. at 1298. The court concluded as follows: 

[T]he board hearing requirement, as applied in

this case, is perhaps the most discriminatory

method available for reviewing a provider’s

program statement. As discussed

hereinabove, defendants often review a

provider’s statement without holding a public

hearing. Furthermore, neighbors as a group

have no particular expertise which might be

useful in assisting licensing officials in their

review of the statements of prospective group

home providers. To the extent that the

hearings address legitimate programmatic

matters, there are less discriminatory

alternatives available to satisfy the County’s

legitimate concerns.... If the defendants need

information from a provider regarding its
Gen. 48] 55

program statement, “there are less formal

means to obtain it.” 

823 F. Supp at 1299 (emphasis in original, citation omitted). 

III

Implications for State Procedures

The Montgomery County procedures held unlawful in Potomac

Group Home and the State procedures in HG Titles 7 and 10 are not

identical. Under State procedures, notice is given by general

publication, not focused on the neighbors of the proposed group

home. Public hearings are routine, not triggered by community

opposition. No community representative participates in the

decision-making process. Despite these differences, we think it

highly likely that the federal court would reach the same conclusions

about the State notice and hearing requirements as it did about the

county’s. 

A. Notice

Because the notice requirements are not applied to group

residences other than those to be occupied by persons with

disabilities, the federal court would likely conclude that the effect of

the notice requirements is to stigmatize the group home residents

because of their disabilities. Moreover, although a trial yields a

factual record and preparation of an Attorney General’s opinion does

not, we have reason to think that notice to the public and to elected

officials about applicants for a State license, like notice about

applicants for a county license, often has had the effect of

galvanizing neighborhood opposition to a group home. A plaintiff

in a federal court action against the Department would almost surely

present substantial evidence of the ways in which people with

disabilities are harmed by the notice requirement in HG §§7-611 and

10-520.

We discern no argument that would persuade the federal court

to reach a different result than in Potomac Group Home. The notice

requirements in HG §§7-611 and 10-520 would be held to violate the

FHAA.
56 [78 Op. Att’y

If public notice cannot be given because of the FHAA, an attempt 4

to defend the hearing requirement would seem pointless, however. An

unannounced “public” hearing serves no purpose. 

B. Hearings

Because the facts about Montgomery County’s hearing process

were so “egregious,” as the court put it, we would have more room

to defend the hearing procedures in HG §§7-611 and 10-520. Still, 4

a plaintiff would surely be able to show that opponents of group

homes attempt to use the hearings to voice stereotypical views of

people with disabilities, even though the Department rigorously

excludes illegitimate concerns from its own decision-making. See

Stewart B. McKinney Found., Inc. v. Town Plan & Zoning Comm’n,

790 F. Supp. 1197, 1211-12 (D. Conn. 1992) (use of “public

information forum” as instrument of neighborhood opposition).

One key passage in the federal court decision, moreover,

quoted on page 51 above, focuses on the availability of alternative

ways of gathering necessary information. The Department has less

formal means than a public hearing to obtain the information that it

deems necessary before approving an application, and nothing in

Potomac Group Home precludes a thorough investigation of the

ability of the applicant to provide proper care. 823 F. Supp. at 1299.

If, as we think likely, the Department would be unable to show that

the hearing process itself yielded material information both

permitted to be considered by the FHAA and unavailable by any

other means, then the result would be the same as in Potomac Group

Home: A hearing required of people with disabilities, but not of

people without disabilities in comparable residential settings,

violates the FHAA. 

IV

Conclusion

Judge Harvey’s decision in Potomac Group Home is not an

isolated view of the FHAA that we could expect to be reversed on

appeal (if one is taken). Rather, the decision reflects a 
Gen. 48] 57

See, e.g., Marbrunak, Inc. v. City of Stow, 974 F.2d 43 (6th Cir. 5

1993) (fire safety requirements); Oxford House, Inc. v. Town of Babylon,

819 F. Supp. 1179 (E.D.N.Y. 1993) (application of “family” restriction in

zoning code); Horizon House Develop. Serv., Inc. v. Township of Upper

Southampton, 804 F. Supp. 683 (E.D. Pa. 1992) (spacing requirement);

Stewart B. McKinney Found., Inc. v. Town Plan & Zoning Comm’n, 790

F. Supp. 1197 (D. Conn. 1992) (special exception procedure); Association

of Relatives & Friends v. Regulations & Permits Admin., 740 F. Supp. 95

(D.P.R. 1990) (denial of special use permit).

pattern of decisions in the federal courts striking down requirements

that, on their face or in practical effect, make it harder for people

with disabilities to live where they want to.5

In our opinion, continued enforcement of the notice and

hearing requirements in HG Titles 7 and 10 would likely result in a

federal court decision holding these requirements violative of the

FHAA. We recommend that the matter be brought to the attention

of the General Assembly at the next session and, until the statute is

amended, that applications be considered and approved, if they are

in compliance with regulatory requirements, without publication or

provision of notice and without public hearings. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice

Editor’s Note:

The Potomac Group Home decision was not appealed.