TABLE OF CONTENTS Introduction .....................................................................................................................................1 I. Alcohol and Drug Dependence: The Public Health Perspective.................................................7 A. The Disease and the Treatment..............................................................................................7 B. Treatment Efficacy...............................................................................................................11 C. Treatment Accessibility........................................................................................................15 II. National Policies that Promote NIMBY...................................................................................19 III. Civil Rights Laws and Zoning Discrimination .......................................................................28 A. Title II of the Americans With Disabilities Act and the Fair Housing Act ......................29 1. Are Zoning Decisions Subject to Anti-Discrimination Protections...........................32 2. Are Persons with Alcoholism and Drug Dependence Protected Against Discrimination............................................................................................................33 3. What Actions Constitute Discrimination...................................................................46 4. Proving Discrimination..............................................................................................48 a. Facial Discrimination..........................................................................................49 b. Intentional Discrimination (Disparate Treatment)..............................................50 c. Discriminatory Effect (Disparate Impact)...........................................................55 d. Reasonable Accommodation Obligation ............................................................59 B. Summary .........................................................................................................................69 IV. Public-Private Partnerships to Bar Drug Treatment Services.................................................69 A. Baltimore County, Maryland: Exclusion of Methadone Maintenance Treatment...........72 B. Baltimore City: Legislating the Location of Alcohol and Drug Services........................81 I 1. Baltimore City Zoning Standards ..............................................................................85 a. Conditional Use Ordinance (CO)..........................................................................85 b. Conditional Use Board Process ............................................................................94 2. Impact of the Conditional Ordinance Process on Establishing Treatment Programs.................................................................................................95 3. Legality of the Conditional Ordinance Process ......................................................101 a. Disparate Treatment..........................................................................................102 b. Disparate Impact ...............................................................................................111 V. Beyond the Legal Standards: Community and Official Response to Siting Treatment Services...........................................................................................................112 A. Neighborhood Perspective .........................................................................................113 B. Baltimore City Perspective.........................................................................................121 VI. Comprehensive Strategies to Establish Community-Based Treatment Services ...........123 Conclusion .............................................................................................................................139 II BRIDGING THE BARRIERS: PUBLIC HEALTH STRATEGIES FOR EXPANDING DRUG TREATMENT IN COMMUNITIES Introduction Alcoholism and drug dependence exact a tremendous cost on individuals, families, and communities across the United States.1 As the public searches for common sense approaches to reducing the toll, public health strategies that promote prevention and treatment are being relied upon increasingly as a necessary tool, both separate from and in conjunction with law enforcement efforts.2 The value and indispensability of this strategy is supported by the growing body of medical and 1 The societal cost of drug abuse, alone, in 1998 was estimated at $143.4 billion. Sixty-nine percent (69%) of the cost related to lost productivity resulting from incarceration, crime careers, drug abuse related illness, and premature death; 22% related to criminal justice and social welfare costs; and 9% related to health care costs for drug treatment and medical conditions related to addiction. OFFICE OF NATIONAL DRUG CONTROL POLICY, THE ECONOMIC COSTS OF DRUG ABUSE IN THE UNITED STATES: 1992-1998 2-9 (Sept. 2001). The societal cost of alcohol abuse in 1998 was estimated at $184.6 billion. Seventy-two percent (72%) of the cost resulted from lost earnings; 14% related to heath care costs for alcohol treatment or medical conditions related to abuse; and 13% related to criminal justice and other damage costs. U.S. DEPT. OF HEALTH AND HUMAN SERVICES, UPDATING ESTIMATES OF THE ECONOMIC COSTS OF ALCOHOL ABUSE IN THE UNITED STATES 1 (Dec. 2000). 2 Many states, including Alabama, Arizona, California, Hawaii, Kansas, New Mexico, Oklahoma, Oregon, and Washington, have implemented programs that either mandate or permit diversion of drug offenders from prisons and jails to treatment, and others, including Florida, Idaho, Indiana, Mississippi, North Dakota, and Wyoming, have implemented or expanded drug court programs that emphasize treatment for alcohol and drug dependence. A. COLKER, HEALTH POLICY TRACKING SERVICE, CALIFORNIA’S PROPOSITION 36 AND OTHER STATE DIVERSION PROGRAMS: MOVING DRUG OFFENDERS OUT OF PRISONS AND INTO TREATMENT 8-23 (July 1, 2003). Implementing these policies requires the expansion of comprehensive alcohol and drug treatment services. Indeed, the implementation of California’s Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, which permits individuals convicted of drug possession or use crimes to be diverted to treatment, has resulted in a 42% increase in the number of licensed or certified treatment programs since the Act’s passage. Licensed residential programs increased by 17% and certified outpatient programs increased by 81%. Id. at 6. 1 scientific data that unravels this “brain disease”3 and bolsters the principles underlying civil rights laws that, since the mid-1970’s, have recognized alcoholism and drug dependence as disabilities. A significant impediment to the success of a public health strategy, however, has been community opposition to the siting of treatment programs and the official and quasi-official support of community resistance through government zoning policies. Zoning is one of the critical links in the effort to increase alcohol and drug treatment capacity. Without the ability to identify appropriate sites for new services4 and quickly obtain approval for occupancy, it is impossible to increase capacity in a timely way. Zoning standards and the “message” those standards send to a community can either promote or prevent the establishment of treatment services. The magnitude of the “not in my backyard” (NIMBY) problem is not easily documented, but evidence abounds that many local governments and communities have resisted the right of alcohol and drug treatment services to locate in communities on the same terms as other medical services.5 Even the 3 See discussion infra at text accompanying notes 18-20. 4 This assumes that specialized programs will continue to be the primary vehicle for delivering alcohol and drug treatment services. Efforts have been made to better integrate drug treatment into primary medical care, and that process, as discussed in Part II, will advance the acceptance of these services in the community. The recent approval of medical office-based buprenorphine treatment for opiate dependence is a significant step in that direction. See Drug Addiction Treatment Act of 2000, 21 U.S.C. § 823(g). The National Institute on Drug Abuse has also funded research on the use of immunotherapies for some drugs of addictions, including cocaine, PCP and methamphetamines. If ultimately approved for use, such immunotherapies could also be administered through a medical office-based setting with linkages to other necessary counseling and supportive services. See NEW TREATMENTS FOR ADDICTION: BEHAVIORAL, ETHICAL, LEGAL, AND SOCIAL QUESTIONS (Henrick Harwood and Tracy Myers, ed., 2004), available at www.nap.edu. 5 JOIN TOGETHER, ENDING DISCRIMINATION AGAINST PEOPLE WITH ALCOHOL AND DRUG PROBLEMS: RECOMMENDATIONS FROM A NATIONAL POLICY PANEL 8 (2003), at www.jointogether.org/discrimination (last visited Feb. 16, 2004). The Institute of Medicine noted in its 1995 study of methadone maintenance 2 best know spokesperson for alcohol and drug treatment and those in recovery, former First Lady Betty Ford, experienced unyielding community opposition when the Betty Ford Center tried to provide housing for patients receiving treatment. Testifying before a national policy panel convened by the American Bar Association’s Standing Committee on Substance Abuse to address discrimination against individuals seeking alcohol and drug