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Feltman, NRZs Cook Up Free Speech Folly

Ken Krayske

May 15, 2008

If neighborhood revitalization zones have no power as Asylum HILL NRZ chair Bernie Michel claims, then why would State Representative Art Feltman have submitted a bill that to strip an NRZ’s power to comment on housing projects for persons with developmental disabilities?

Feltman’s House Bill No. 5637, An Act Concerning Local Review of Community Residences in Multi-Family Buildings, died on the vine. Nor will it likely be resurrected next year because Feltman is retiring from public service.

But the raging storm that Hartford 2000 and its member NRZs kicked up in response to Feltman’s proposal reveals that Feltman seems to have reacted poorly to problems he had in dealing with NRZs, and that H2K and the NRZs got bent out of shape for no reason.

In short, they all acted with the requisite human folly required of players on the political scene in Hartford.

NRZs were created by special state legislation. Thus, as Feltman knows, only state legislation can really alter their construction.

From that perspective, Feltman said he designed the bill to combat NIMBYism and prejudice in housing.

“With regard to the NRZ’s, they have to treat supportive housing with people for mental disabilities the same as multifamily housing,” Feltman said.

His anger grew from an experience that the state Department of Mental Health and Addiction Services and Broad Park Development had in dealing with Bernie Michel and the Asylum Hill NRZ.

DMHAS “had been trying to site a 10-unit efficiency,” Feltman said. It was “kicked around from NRZ to NRZ, starting with Bernie Michel.” People complained that nobody wants it in the neighborhood, we have too many of these already.

“As a consequence, this stuff doesn’t happen, then you end up with no placement for folks who could be accommodated well in these kinds of situations,” Feltman said.

Thus, Feltman wrote a bill to silence not just NRZs, but also suburban planning and zoning boards when a new group home sought site approval.

End of problem, right?

When confronted with such a threat to their existence, Hartford 2000 and its member NRZs across the city rallied to protect themselves. H2K and the NRZs started a letter writing campaign to elected officials, claiming Feltman’s proposed bill was unconstitutional.

Free speech, they cried. The state can’t impinge on the NRZ’s rights to speak, they wailed.

But from what I understand, they didn’t hire a lawyer to examine the constitutionality of Feltman’s bill. Nor did Feltman, an attorney himself, examine the constitutionality of it.

Luckily for us, this kind of thing is precisely why I am in law school. Even better, I took Constitution Law this semester. So I applied some of that learning to the matter at hand.

Let’s start with whether or not Feltman’s law would be valid in the face of existing federal legislation, like the Fair Housing Act which already seeks to prevent and punish discrimination against persons with disabilities in the housing market.

The Supreme Court ruled in 1985 in City of Cleburne v. Cleburne Living Center, Inc. that the FHA is supreme, and thus it tossed local Texas zoning laws preventing group homes from moving into a residential neighborhood.

Federal law reigns supreme here. Of course, a state can create complementary law that can be obeyed simultaneously without breaking federal law. But is there a need for more state law on point here?

“I haven’t thought about federal law,” Feltman said in a phoner a few weeks ago.

It seems as if a zoning board or an NRZ can follow both laws and not violate either. So, maybe Feltman’s bill is constitutional. Logical is another question.

Nor do I think the NRZ’s have a free speech claim.

I e-mailed my professor just to be sure. Under Supreme Court jurisprudence, the NRZs are government creatures, and therefore, as state-based organizations, NRZs as a group have no claim to free expression unimpeded opinion, my professor said.

The proposed legislation merely limits who can and who can’t speak about whether or not there should be a group home for adults with mental illness in a neighborhood, according to my professor’s reading of it.

“In a nonpublic forum, the legislature can control who participates in the process and can also control the subject matter of the speech (by insisting, for instance, that the speaker stick to the agenda) as long as the lines aren't drawn on the basis of the speakers' viewpoint,” my professor wrote.

Feltman offered a Bushism in response to the NRZ’s claim to First Amendment rights.

“There are limits to free speech,” Feltman said, noting you can’t say fire in a crowded theater, either.

Yet while it isn’t illegal to cry wolf or run around saying the sky is falling, Feltman likened NRZs to Chicken Little with the prejudice NRZs showed against the aforementioned DMHAS project.

‘Would the NRZs be constructive and not destructive, so it’s not a group of people who say no to everything?” Feltman said. “The proposed legislation says, you can speak, but you can’t speak based on prejudice, can’t zone out people with mental disabilities based on fear.”

That’s what the FHA says. And the NRZs seemingly ignored it. Feltman said that NRZs and Boards would voluntarily follow his law.

“I’m not acting in my role as a lawyer,” Feltman said when asked about his envisioning of an enforcement mechanism.

So, let’s assume his bill would add a cause of action for a rejected group home like Cleburne Living Center when it sued. Great. Not much teeth. NRZs have no assets, no money, so the only relief would be injunctive, ie, forcing them to allow the home.

Litigating this matter would be time-consuming and expensive. Isn’t there a better way? Feltman didn’t like my ideas of either abolishing NRZs, eliminating zoning regulations altogether or creating accountability in NRZs by refashioning through Charter Reform.

Suppose we made NRZs creatures of the Court of Common Council, where city councilmen would lead them, and be tied to them?

No, Feltman said. Some NRZs are effective. He praised Hyacinth Yennie’s leadership in Barry Square. But he didn’t think NRZs should be part of city government.

“There has to be a separation of roles,” he said. “It’s a tough thing to go from being a community organizer to being a government official. I think government officials should attend NRZ meetings. Hyacinth wouldn’t let me muss too many before I would start hearing from her.”

So then if some NRZs work, and demonstrate forms of power, like forcing elected officials to participate in neighborhood dialogue, I still can’t wrap my head around why Bernie Michel would say in the middle of Asylum Hill NRZ meetings that NRZ are powerless.