July 27, 2005
Dear City Recorder:
You have the following question: Is a certain group home designed to house eight
mentally handicapped persons in one building, but in eight separate units each with its own
entrance, and two families which have a handicapped member, in a separate duplex, authorized
to locate in an R-1 zone in the city, without action on the part of the city to rezone the property to
R-2. As I understand the facts, the Counseling Center is the sponsor of that housing
development, and is a legitimate nonprofit community mental health center that provides
assistance to handicapped persons, and has received a federal grant to upgrade the housing
situations for the handicapped persons who will occupy that housing development.
The answer is that Tennessee Code Annotated, ' 13-24-101et seq. permits the location of
those residences in any zoning district of the city in which single family residences are allowed,
without action on the part of the city to rezone the property to R-2, or to any other higher density
residential, or to grant a variance. That statute in a sense “rezones” the property in every
municipality in Tennessee to permit the residential use at issue.
Tennessee Code Annotated, ' 13-24-101 et seq. is a statutory scheme that removes
zoning obstacles “which prevent mentally retarded, mentally handicapped or physically
handicapped persons from living in normal residential surroundings.” [Tennessee Code
Annotated, ' 13-24-101] It exempts certain kinds of handicapped persons from its coverage, but
that exemption is not an issue here.
The statutory scheme declares that:
For the purpose of any zoning law in Tennessee, the classification
“single family residence” includes a home in which eight (8) or
fewer unrelated mentally retarded, mentally handicapped or
physically handicapped individuals reside, and may include three
(3) additional persons acting as houseparents or guardians, who
need not be related to each other or to any of the...persons residing
in the home. [Tennessee Code Annotated, ' 13-24-102]
By statute, then, the General Assembly has declared that a single family residence
includes the kind of home indicated in that statute, regardless of what the zoning ordinance
provides. While in one of the residential buildings at issue in your City, the mentallyhandicapped persons will occupy separate units in the facility and will have separate entrances,
and while the other residential building at issue in your City is a duplex that will house two
July 27, 2005
Page 2
families who have a handicapped member, and the handicapped persons will not require
houseparents or guardians to live with them, no reason occurs to me why that statute would not
apply to that kind of residential arrangement. In fact, Tennessee Code Annotated, ' 13-24-102
says that in addition to the eight residents of the building three additional houseparents “may”
reside. The “may” indicates they are not necessarily required to live in the home/s for those
homes to qualify under that statute.
The statutory scheme also provides that, “This part take precedence over any provision in
any zoning law or ordinance in Tennessee to the contrary.” [Tennessee Code Annotated, ' 1324-103] For that reason, Tennessee Code Annotated, ' 13-24-101 et seq., takes precedence over
any provision of your City’s zoning ordinance that would keep the residences at issue out of any
zoning districts in the city that allow single family residences.
That statutory scheme was upheld in Nichols v. Tullahoma Open Door, 640 S.W.2d 13
(Tenn. Ct. App. 1982), against a challenge that it violated the City of Tullahoma’s zoning
ordinance restricting R-1 districts to single family dwellings (and certain other uses). The zoning
ordinance defined family as “one or more persons occupying a single family dwelling unit,
provided that unless all members are related by blood or marriage, no such family shall contain
over five (5) persons....” As indicated above, Tennessee Code Annotated, ' 13-24-101 et seq.,
provided that for the purposes of any zoning ordinance “single family residence” included eight
unrelated persons who came within the protection of that statute.
In upholding that statute, the Court of Appeals declared that:
The purpose of the legislation under attack is stated in T.C.A. '
13-24-101 and that is to Aremove any zoning obstacles which
prevent mentally retarded, mentally handicapped or physically
handicapped persons from living in normal residential
surroundings. There is evidence in the record that these statutes
address one aspect of a broader state-wide program to
deinstitutionalize mentally and physically handicapped persons and
to integrate them into society to the greatest degree possible
consistent with their abilities. The legislation under attack opens
up residential neighborhoods to family-like groups of handicapped
persons and houseparents allowing them to live in areas where
zoning laws would otherwise prevent them from living. [At 17]
The unreported case of Pioneer Subdivision Homeowner’s Association, Inc. v.
Professional Counseling Services, Inc., 2002 WL 31442318 (Tenn. Ct. App), also held that
Tennessee Code Annotated, ' 13-24-101 et seq., allowed a home for handicapped residents to go
July 27, 2005
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into an R-1 district even though the home was not allowed in an R-1 district under the City of
Dyersburg’s zoning, and even though the location of the home violated a restrictive covenant!
Unreported cases do not have the precedential value of reported cases, but there is no doubt that
at least with respect to the City of Dyersburg’s zoning ordinance, that Pioneer Subdivision
Homeowner’s Association, Inc. was consistent with Nichols v. Tullahoma Open Door.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/
Attachment