In this аction, plaintiffs, a number of property owners and their community organization, seek to enjoin the respondent Working Organization for Retarded Children (WORC) from using a one-family residence as a group home for mentally rеtarded children. The subject premises which WORC contracted to purchase, and to which it acquired title during the pendency of this action, is located in a one-family residential zone in Little Neck, Queens.
In granting WORC’s motion for summary judgment, the Special Term held that the proposed group home was a permitted use in a' single-family residential zone since its future occupants will constitute a "family” within the definition of that term set forth in the New York City Zоning Resolution. That resolution defines a "family” as: "Not more than four unrelated persons occupying a. dwelling, living together and maintaining a common household” (NY City
The respondent WORC, a not-for-profit corporation, approved by the New York State Department of Social Welfare, is authorized to operate a "group home” program for mentally retarded children (see Social Services Law, § 374-c). As set forth in the Social Services Law, a "group home” is "a facility for the care tmd maintеnance of not less than seven, nor more than twelve children, who are at least five years of age” (Social Services Law, § 371, subd 17). The rules of the Department of Social Welfare set forth extensive requiremеnts with which the operator of the group home must comply in order to receive operating certification. It is noteworthy that the rules specify that the "group home shall be in an appropriate neighbоrhood and so located that it is readily accessible to religious, school and recreational facilities and other community resources” (18 NYCRR 11.3 [d] [1]; emphasis supplied).
In City of White Plains v Ferraioli (
The unanimous court concluded that the group home was a family for the purpose of a zoning ordinance. It observed that (pp 304-306):
"It is significant that the group home is structured as a single housekeeping unit and is, to all outward appеarances, a
"The group home is not, for purposes of a zoning ordinance, a temporary living arrangement аs would be a group of college students sharing a house and commuting to a nearby school (cf. Village of Belle Terre v Boraas,
"So long as the group home bears the generic character of a family unit as a relatively permanent household, and is not a framework for transients or transient living, it conforms to the purpose of the ordinance * * *. Moreover, in no sense is the group home an institutional arrangement, which would be another matter. Indeed, the purpose of the group home is to be quite the сontrary of an institution and to be a home like other homes.”
The appellants contend that the present case may be distinguished from Ferraioli since the children who will occupy the proposed group home arе retarded. They assert that the proposed group home will resemble a mini-institution because the children’s handicap will necessitate special care, that their retardation will inhibit them from interacting (among themselves) as people in a normal family do and that they will be unable to participate in normal activities with the community at large. While professing to be sympathetic to the plight of these unfortunate children, the appellants nevertheless suggest that the proposed group home should be located in a residential zone other than one restricted to single-family homes. They also suggest that retarded children are nоt denied access to single-family residential zones since they are free to live in such zones with their natural parents.
WORC contends that it has the right to locate the "State-created” family known as a group home in а single-family residential zone. It argues that, notwithstanding the fact that the children residing therein will suffer from mental retardation, the proposed group home will possess the same attributes as a conventional family, including permanency, community participation and life style. It further asserts that certain
The term "family” is subject to numerous definitions in zoning ordinances. Courts have often been called upon to determine whether a "family” exists in the context of a particular situation (see Ann
The proposed group home will neither provide accommodations for transients nor introduce a life style which is repugnant to traditional family values (cf. Village of Belle Terre v Boraas,
We are fully aware that mental retardation involves a mental disability and that the State has traditionally provided sеrvices to the mentally disabled, and particularly the mentally retarded, in the role of parens patriae. Institutionalization has been the traditional means of accommodating and caring for the mentally retarded (see Mental Hygienе Law,
Assuming, arguendo, that a group home for retarded children does not constitute a family, we would nevertheless conclude that the proposed home is a permitted use as of right. The New York Zoning Resolution provides that, except in certain community districts, a health related facility, as defined by the New York State Hospital Code, is a permitted use as of right in a single-family residential zone (NY City Zoning Resolution, § 22-13). A "health related facility” includes, inter alia, a facility providing lodging, board and social and physicаl care to six or more residents (10 NYCRR 700.2 [a] [4]). In view of the fact that the regulations of the Department of Mental Hygiene treat the group home as a residential facility for the mentally disabled, it falls within the definitional catеgory of a health related facility. Since the property WORC has purchased is located in Community District 11 in Queens, and as that district is not subject to special permit requirements, the proposed group home would be a permitted use even if we were not to conclude that it falls within the definitional category of a family (see NY City Zoning Resolution, § 74-903).
In view of the above, we need not reach any other issue. Accordingly, the order оf the Special Term should be affirmed. The order of this court enjoining WORC from making structural changes in the house is hereby vacated.
Order of the Supreme Court, Queens County, dated September 23, 1975, affirmed, with $50 costs and disbursements, and the stay contained in the order of this court, dated October 29, 1975, is hereby vacated.