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1990 Delaware Attorney General Reports and Opinions 1 (1990)

handle is hein.sag/sagde0030 and id is 1 raw text is: STATE OF DELAWARE DEPARTMENT OF JUSTICE STATE OFFICE BUILDING CHARLES M. OBERLY. II 820 N. FRENCH STREET, 8TH FLOOR DIRECT DIAL: ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 571-2500 January 5, 1990 Thomas K. Pledgie, Ph. D. Director of Mental Retardation Jesse S. Cooper Building Federal and Water Streets Dover, DE 19901 Re: Legality of 5,000 Foot Dispersion Requirement Opinion No. 90-1001 Dear Dr. Pledgie: You have asked whether the requirement under Delaware law that group homes for the mentally retarded be spaced 5,000 or more feet apart survives the amendments to the federal Fair Housing Act. For the reasons set forth below, we conclude that the restriction does not survive the Fair Housing Act as amended (Act) and is therefore unenforceable. STATE STATUTES Under Delaware law, a residential facility serving 10 or fewer developmentally disabled individuals is to be considered a permitted single family residential use under county and munici- pal zoning ordinances. 9 Del. C. secs. 2612(a), 4923(a), and 6819(a); 22 Del. C. sec. 309(a). Developmentally disabled is defined to include the mentally retarded and therefore, this provision inures to the benefit of the mentally retarded. 9 Lel. C. secs. 2612(b), 4923(b), and 6819(b); 22 Del. C. sec. 309(b).

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