§ 17.42

It is the purpose of this chapter, pursuant to Fair Housing Laws, to provide individuals with disabilities reasonable accommodation in the application of the city's land use, zoning, and building standards, regulations, policies, and procedures and to establish relevant criteria to be used to ensure equal access to housing. The purpose of this chapter is to provide a process for individuals with disabilities to make requests for, and be provided, reasonable accommodation, when reasonable accommodation is warranted based upon sufficient evidence, from the various city laws, rules, policies, practices and/or procedures of the city, including land use and zoning regulations.

(Ord. No. 1462, § 2, 3-12-13)

17.42.020 - Applicability.

A.

Any individual with a disability, his or her representative, or a developer or provider of housing for individuals with disabilities may seek relief from any land use, zoning or building standard, regulation, policy or procedure found in titles 15 or Title 17 of this code to ensure equal access to housing and to facilitate the development of housing for individuals with disabilities by requesting a reasonable accommodation in the manner prescribed in following section 17.42.40.

B.

The city shall waive land use, zoning, and building standards, regulations, policies, and procedural requirements when such waiver is necessary to eliminate barriers to housing opportunities. Such waivers for reasonable accommodation may include, without limitation, a household's reasonable waiver of residential fence or structural height restrictions to accommodate specific disabilities, reasonable waivers

of building size or set-back restrictions to accommodate necessary disability accommodations such as wheelchair ramps or expanded parking spaces.

C.

The reasonable accommodation rules set forth in this chapter apply to proposals to modify existing structures as well as new development, as when a household applies to the city in order to modify their existing residence as necessary to reasonably accommodate a specific disability, subject to the findings and requirements of this chapter. Proposals to modify structures, especially single-family homes, should respect existing development patterns if reasonably possible.

(Ord. No. 1462, § 2, 3-12-13)

17.42.030 - Definitions.

A.

"Applicant" means a person, business, or organization making a written request to the city for reasonable accommodation.

B.

"City" means the City of Banning.

C.

"Code" means the Banning Municipal Code.

D.

"Department" means the community development department.

E.

"Director" means the director of community development.

F.

"Disabled or handicapped person" means an individual with a qualifying disability under the Fair Housing Laws. Generally, any person with any mental or physical impairment, disorder or condition, which substantially limits one or more major life activities, including physical, mental and social activities and working. "Disabled or handicapped person" does not include impairments, disorders or conditions resulting from the current, illegal use of or addiction to a controlled substance, sexual behavior disorders, compulsive gambling, kleptomania, or pyromania.

G.

"Fair Housing Laws" means the "Fair Housing Amendments Act of 1988" (42 U.S.C. § 3601, et seq.), including reasonable accommodation required by 42 U.S.C. § 3604(f)(3)(B), and the "California Fair Employment and Housing Act" (California Government Code Section 12900, et seq.), including reasonable

accommodation required specifically by California Government Code Sections 12927(c)(1) and 12955(l), and Civil Code § 54, as any of these statutory provisions now exist or may be amended from time to time by either legislative act or published judicial decisions.

H.

"Reasonable accommodation" means a modification or exception to the standards, regulations, policies and procedures contained in title 15 or title 17 of this code for the siting, development and use of housing or housing-related facilities, that would eliminate regulatory barriers and provide an individual with a disability equal opportunity for the use and enjoyment of housing of their choice, and that does not impose undue financial or administrative burdens on the city or require a fundamental or substantial alteration of the city's planning and zoning program.

(Ord. No. 1462, § 2, 3-12-13)

17.42.040 - Requesting reasonable accommodation.

A.

In order to make specific housing available to an individual with a disability, a disabled person or representative may request reasonable accommodation, pursuant to this chapter, relating to the application of various land use, zoning, or building laws, rules, policies, practices and/or procedures of the city.

B.

If an individual or representative needs assistance in making a request for reasonable accommodation, or appealing a determination regarding reasonable accommodation, the department will endeavor to provide the assistance necessary to ensure that the process is accessible to the applicant or representative. The applicant may be represented at all stages of the proceeding by a person designated by the applicant as his or her representative.

C.

A request for reasonable accommodation in laws, rules, policies, practices and/or procedures must be filed on an application form provided by the department, shall be signed by the owner of the property and submitted to the director, and shall include the following information:

1.

The name, address and telephone number of the applicant;

2.

The name, address and telephone number of the individual with a disability for whom the reasonable accommodation is being requested;

3.

The name, address, and telephone number of the owner of the property for which the reasonable accommodation request is being made. If the applicant is someone other than the property owner, a letter

of agency or authorization signed by the property owner consenting to the application being made is required;

4.

The address and current use of the property for which the reasonable accommodation request is being made;

5.

A description of how the subject property will be used by the disabled individual(s);

6.

A description of the reasonable accommodation request and the specific land use, zoning or building standard, regulation, policy or procedure to be modified or waived;

7.

The basis for the claim that the Fair Housing Laws applies to the individual(s) and evidence satisfactory to the city supporting the claim, which may include a letter from a medical doctor or other licensed health care professional, a handicapped license, or other appropriate evidence which establishes that the individual(s) needing the reasonable accommodation is disabled/handicapped pursuant to the Fair Housing Laws;

8.

The specific reason the requested accommodation is necessary to make the particular housing unit reasonably accessible and available to the disabled individual(s);

9.

Verification by the applicant that the property is the primary residence of the person for whom reasonable accommodation is requested; and

10.

A filing fee in an amount as determined from time to time by resolution of the city council, but not to exceed the reasonable estimated costs to the city in processing the application.

(Ord. No. 1462, § 2, 3-12-13)

17.42.050 - Decision on application.

A.

The director may approve, conditionally approve, or deny an application for a reasonable accommodation for an existing use or a proposed new use that only requires a ministerial permit or approval. The director shall issue a written determination within thirty days of the date of receipt of a completed application. The director may:

Grant the accommodation request in full,

2.

Grant the accommodation request subject to specified nondiscriminatory conditions that are consistent with the requested reasonable accommodation, or

3.

Deny the request.

Notice of the director's determination shall be mailed first class to the applicant and adjacent property owners within three hundred feet of the project boundary. The notice of the director's decision shall state the facts and evidence upon which the director's decision was based in connection with the findings stated in section 17.42.060.

B.

If the project for which the request for a reasonable accommodation is made requires a discretionary permit or approval, then the application for a reasonable accommodation will be heard at the same time as, and in conjunction with, the applicable discretionary permit or approval. The planning commission shall consider an application at the next reasonably available regular planning commission meeting that occurs after the application for reasonable accommodation is complete. The application for reasonable accommodation shall be heard as a public hearing item. At the conclusion of the public hearing and determination thereon by the planning commission, the director shall issue a written statement of the planning commission's determination within thirty days. The planning commission may:

1.

Grant the accommodation request,

2.

Grant the accommodation request subject to specified nondiscriminatory conditions that are consistent with the requested reasonable accommodation, or

3.

Deny the request.

Notice of the planning commission's determination (which may be in the form of a resolution adopted by the commission) shall be mailed first class to the applicant and adjacent property owners within three hundred feet of the project boundary. The notice of the planning commission's decision shall state the facts and evidence upon which the commission's decision was based in connection with the findings stated in section 17.42.060.

C.

If necessary to reach a determination on any request for reasonable accommodation, the director may request further information from the applicant after the applicant has submitted its initial application. Such

request for additional information shall:

1.

Be consistent with this chapter; and

2.

Specify in detail what information is required; and

3.

Request additional information only to the extent such information is reasonably necessary to render the findings required by this chapter.

In the event that a request for further information is made, the application will not be deemed "complete" until the applicant reasonably responds to the request with responsive information.

D.

A reasonable accommodation that is granted pursuant to this chapter shall not require the approval of any variance as to the reasonable accommodation.

(Ord. No. 1462, § 2, 3-12-13)

17.42.060 - Required findings.

The following findings must be made in order to approve any request for reasonable accommodation:

A.

The housing, which is the subject of the request for reasonable accommodation, will be occupied as the primary residence by an individual protected under the fair housing laws.

B.

The request for reasonable accommodation is necessary to make specific housing available to one or more disabled individuals protected under the Fair Housing Laws.

C.

The requested reasonable accommodation will not impose an undue financial or administrative burden on the city. "Undue financial or administrative burden" is defined in the Fair Housing Laws.

D.

The requested accommodation will not require a fundamental alteration of the zoning or building laws, policies and/or procedures of the city. "Fundamental alteration" is defined in the Fair Housing Laws.

E.

The requested reasonable accommodation will not, under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others.

(Ord. No. 1462, § 2, 3-12-13)

In granting a request for a reasonable accommodation, the director or planning commission, as applicable, may impose any conditions of approval deemed reasonable and necessary to ensure that the reasonable accommodation would comply with the findings required by section 14.44.060, the Fair Housing Laws and the intent of this chapter. Such conditions may generally include, but are not limited to, the following restrictions:

A.

The city's general/standard conditions of approval applicable to all projects;

B.

That the reasonable accommodation shall only be applicable to particular disabled individual(s); and/or

C.

That the reasonable accommodation shall only be applicable to the specific use for which application is made.

(Ord. No. 1462, § 2, 3-12-13)

17.42.080 - Appeals.

A.

Director Decision. Any applicant who is dissatisfied by the decision made by the director on an application for a reasonable accommodation may appeal the director's decision to the planning commission. The appeal must be filed via written notice detailing the grounds for appeal, such notice must be received by the director within fifteen days of the mailing of the director's decision. Upon the filing of a notice of appeal, the director will set the matter for a public hearing before the planning commission to occur not later than sixty days from the date of filing. Notice of the appeal hearing will be given to the applicant by mail at least ten days prior to the hearing. Any person who is dissatisfied by the decision of the planning commission may make a further appeal to the city council in accordance with applicable procedures of section 17.68.090 et seq. of this code. The planning commission's decision will be final absent a timely appeal to the city council.

B.

Planning Commission Decision. A decision of the planning commission on an application for a reasonable accommodation considered concurrently with another application for a discretionary approval is subject to the same appeal rights and procedures that apply to the other discretionary approval or pursuant to section 17.68.090 et seq., as applicable.

(Ord. No. 1462, § 2, 3-12-13)

A.

Expiration. Any reasonable accommodation approved under this chapter will expire within twelve months from the effective date of approval or at such alternative time specified as a condition of approval unless:

1.

A building permit has been issued and construction has commenced;

2.

A certificate of occupancy has been issued;

3.

The use is established; or

4.

A time extension has been granted.

B.

Revocation.

1.

Director Decisions. If the director was the last reviewing authority to grant a reasonable accommodation application, the director may revoke or modify such reasonable accommodation permit if the findings required in this section can be made with the support of substantial evidence.

2.

Planning Commission and/or City Council Decisions. If the planning commission or city council was the last reviewing authority to grant a reasonable accommodation application, the planning commission may revoke or modify such reasonable accommodation permit if the findings required in this section can be made with the support of substantial evidence. The commission shall hold a public hearing to revoke or modify a reasonable accommodation granted pursuant to the provisions of this chapter. At least ten days prior to the hearing, notice shall be delivered in writing to the applicant and/or owner of the property for which the reasonable accommodation was granted. Notice shall be deemed delivered two days after being mailed, first class postage paid, to the owner as shown on the current tax rolls of the County of Riverside, and/or the project applicant.

3.

Required Findings. Any decision to modify or revoke a reasonable accommodation can be made only if at least one of the following findings can be made with the support of substantial evidence:

(a)

Circumstances have changed so that one or more of the findings contained in section 17.42.060 can no longer be made;

(b)

The reasonable accommodation was obtained by misinformation, misrepresentation or fraud; or

(c)

One or more of the conditions of the reasonable accommodation have not been met.

4.

Notice and Appeal. Written notice of any decision to revoke or modify a reasonable accommodation permit shall be mailed by first class mail to the owner as shown on the current tax rolls of the County of Riverside and/or the applicant. The determination may be appealed in accordance with section 17.42.080.

C.

Termination. If the individual with a disability who initially occupied the applicable dwelling ceases to reside at the premises, the reasonable accommodation will remain in effect only if the director determines that:

1.

The modification is physically integrated into the residential structure and cannot easily be removed or altered to comply with this code, or

2.

The accommodation is necessary to give another disabled individual an equal opportunity to enjoy the dwelling.

The director may request that any successor-in-interest to the property provide documentation that subsequent occupants are persons with disabilities. Failure to provide such documentation within ten days of the date of a written request by the director will result in the termination of a previously-approved reasonable accommodation and the applicable premises must subsequently be made to conform to code.

(Ord. No. 1462, § 2, 3-12-13)

Notwithstanding any provisions in this chapter regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this chapter or may request a continuance regarding any decision or consideration by the city of the pending appeal. Extensions of time sought by applicants shall not be considered delay on the part of the city, shall not constitute failure by the city to provide for prompt decisions on applications and shall not be a violation of any required time period set forth in this chapter.

(Ord. No. 1462, § 2, 3-12-13)

Division IV. - ADMINISTRATION Chapter 17.44 - ADMINISTRATION— GENERAL PROVISIONS