When Adam Kaye’s client wanted to open a drug detox facility in Fayette County earlier this year, the Atlanta-based lawyer assumed the proposal would sail through to approval.
The ingredients for success were all there: a need for detox services in the county, a client who had a history of operating well-run drug treatment centers, and a property that was already zoned for medical purposes.
Then came the bureaucratic slap in the face. The county board of commissioners pointed to a decades-old provision in the state’s zoning code that forces drug treatment centers to wait anywhere from six to nine months before approval. In that time, Kaye said, his client has lost tens of thousands of dollars, much of which has gone towards securing the property -- even though it’s sitting vacant.
“I didn’t realize, at the beginning, that it was going to be such an arduous journey,” he said.
The experience has motivated Kaye to lobby the state Legislature to repeal the statute in this Legislative session. Not only does the law make it trickier for drug treatment centers to open throughout Georgia, according to facility operators who spoke with The Atlanta Journal-Constitution, but it very well may violate federal laws that are designed to protect the rights of people in recovery for substance abuse. The AJC interviewed two legal experts who believe the statute would be extremely vulnerable if it were ever challenged in court.
Rep. Mary Margaret Oliver, a Democrat who has served in the state Legislature for decades, said she hadn’t heard of the zoning requirements before. She had some unanswered questions about the statute, like whether any other types of facilities face similar longer waiting periods, but said that on its face, it appeared to violate federal protections for people who are recovering from addiction.
“On the surface, this statute looks to intentionally create obstacles [for opening] drug treatment centers,” Oliver said.
The AJC couldn’t identify the reasoning for the longer waiting period, which was added into the state’s zoning code in 1998. The typical property that’s going through the re-zoning process waits between a minimum of 15 days to up to 45 days, under the state code. A state sponsor for the policy change, who has since retired, declined to comment on the record for this story.
“On the surface, this statute looks to intentionally create obstacles [for opening] drug treatment centers."
Proponents for drug treatment centers believe the statute is reflective of the not-in-my-backyard attitude that often comes with trying to open a facility in a new area. They also questioned whether the restriction is hampering the state’s present-day agenda of expanding treatment for mental health and substance abuse.
“We still have laws on the books that are running counter to our objectives here,” Kaye said. “It’s one of those laws that’s sort of been buried.”
Steven Rapson, the county manager for Fayette County, declined to comment on the county’s position on the waiting period, and referred the AJC to state officials.
The AJC reached out to several representatives for drug treatment centers in Georgia in recent weeks and found, at least anecdotally, that enforcement of the waiting period is spotty: some counties and local governments do not enforce the statute, while others do.
For example, a couple years ago in Gwinnett County, the waiting period forced one drug treatment operator to abandon a project, despite putting months of work and cash into it. Stephen Katz, an attorney who represented the company, said his client spent $300,000 dollars to open a mental health and substance abuse treatment center in Dacula. But the client ultimately couldn’t take the risk of purchasing the property with such a long wait, and no guarantee the zoning would be approved. He knows of at least one other operator who was stymied by this statute in DeKalb County.
“What this [statute] does is put a log in the road, an impediment,” he said, adding that someone can spend “a lot of money, and we did, only for a six-month waiting period to stop us.”
Another drug treatment operator told the AJC he learned just this month that the facility he was trying to open in Gainesville would face the lengthy waiting period. Trey Lewis, founder and CEO of Good Landing Recovery, said he’s put well over 2 million dollars into a property.
The delay is frustrating, he said, and is throwing uncertainty into the facility’s future. It’s planned to be the program’s third location in Georgia and Lewis said it’s the first time they’ve run into the law.
“We’ve made a huge investment to save lives,” he said, later adding “[This provision] sounds like it’s discrimination.”
Beyond the tangible consequences of the statute, there are potential legal issues at play, according to two experts on disabilities law.
Under several federal laws, including the Americans with Disabilities Act, people who are in recovery for substance abuse are a protected disabled class, said Michael Allen, a partner at Relman Colfax PLLC, a national law firm that litigates civil rights cases.
The statute, according to Allen, could potentially run afoul of three federal laws if it were challenged in court: the Americans with Disabilities Act, the Fair Housing Act, which protects people from housing discrimination, and Section 504 of the Rehabilitation Act, which prohibits state and local governments from discriminating against people based on their disability.
“When government adopts zoning and land use rules that make it easier for opponents to come out and oppose sober living homes, government becomes part of the problem,” Allen said. “It becomes a discriminator.”
Steven Polin, general counsel for Oxford House, a Maryland-based nonprofit that provides housing for people recovering from addiction, agreed that the Georgia law could be vulnerable if challenged. He’s been involved in hundreds of matters across the country that involved legal fights to open drug treatment facilities. Typically, Polin said he sees governments impose moratoriums; this restriction – a longer waiting period – is something he hasn’t encountered before.
“I’ve never quite seen this twist before,” he said. “And it’s a lengthy waiting period. It’s not like, you’ve got to wait a month or a couple of weeks. We’re talking six to nine months here.”
Kaye, for his part, is hopeful the detox center he’s working to open in Fayette County will get the green-light when it comes before the county commission in late January.
Kaye is pressing ahead on multiple fronts: he filed complaints with the U.S. Department of Housing and Urban Development and the U.S. Department of Justice. He said he’s hopeful it will bring in the federal government to sue on his client’s behalf should the agencies pursue the issue. Kaye said he’s also seeking state lawmakers’ help to change the statute. Legislators recently introduced a bill that would eliminate the lengthy waiting period.
For Kaye, the issue of substance abuse treatment is not just a professional cause, but a personal one.
Years ago, he went into treatment for an opioid addiction, which he developed after being prescribed medication for a medical operation. Then, about five years ago, his best friend died of an overdose.
That death weighs on Kaye: the fact that his friend was reluctant to ask for help, even when he knew Kaye had struggled with addiction.
“Why is there so much shame around talking about these sorts of issues?,” Kaye said.
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