Division 2 — REASONABLE ACCOMMODATION[[7]]

Footnotes:

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Editor's note— Section 3, Exhibit A, of Ord. No. 1852, adopted June 12, 2012, added divs. 1 and 2, §§ 90271—90-310. Inasmuch as some of those section numbers already exist, to avoid duplication, said provisions have been redesignated to read as herein set out, and the original ordinance section designations have been included as part of the history note following each section.

In accordance with the fair housing laws, it is the purpose of this division to provide reasonable accommodations in the city's zoning and land use regulations (chapter 90 of this Code), of the city's policies, and practices implementing those regulations when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling.

(Ord. No. 1852, § 3(Exh. A, § 90-291), 6-12-12)

The definitions provided in division 1 of this article (section 90-272) shall also apply within this division. For the purposes of this division, the following definitions shall also apply:

Major reasonable accommodation means a request to allow a use in a zone where it is otherwise not permitted or a request for a modification or exception to the substantive land use, zoning and development standards and regulations.

Minor reasonable accommodation means a modification or exception to the procedural requirements contained in this chapter, including, but not limited to, fee adjustments or deferrals, modification of application filing requirements, and modification of appeal filing requirements.

(Ord. No. 1852, § 3(Exh. A, § 90-292), 6-12-12)

The planning commission is designated to approve, conditionally approve, or deny all applications for a major reasonable accommodation, except that the director is hereby vested with authority to review and approve major reasonable accommodation applications that solely request a modification of development standards for uses requiring a small group home permit or an administrative use permit. The director, or his or her designee, is designated to approve, conditionally approve, or deny all applications for a minor reasonable accommodation, provided that the director may decide to allow the planning commission to determine whether to approve, conditionally approve, or deny an application for a minor reasonable accommodation if the director finds that the minor reasonable accommodation involves significant controversy or extraordinary circumstances.

(Ord. No. 1852, § 3(Exh. A, § 90-293), 6-12-12)

(a)

Applicant. A request for reasonable accommodation may be made by any individual with a disability, their representative, or a developer or provider of housing for individuals with a disability. A reasonable accommodation may be approved only for the benefit of one or more individuals with a disability.

(b)

Application. An application for a reasonable accommodation shall be made on a form provided by the community development department. No fee shall be required for an application for reasonable accommodation, but if the project requires another discretionary permit, then the prescribed fee shall be paid for all other discretionary permits.

(c)

Other discretionary permits. If the project for which the request for reasonable accommodation is made requires another discretionary permit or approval, then the applicant may file the request for reasonable accommodation together with the application for the other discretionary permit or approval, and may elect to have the reasonable accommodation request processed and decided simultaneously with the application for the other discretionary permit. In such cases, the procedures applicable to the other discretionary permit shall govern the processing of the reasonable accommodation request. A minor reasonable accommodation request seeking a modification or exception to procedural requirements shall not be processed simultaneously with any other discretionary permit.

(d)

Required submittals. In addition to materials required under other applicable provisions of this Code, an application for reasonable accommodation shall include the following:

(1)

Documentation that the applicant is:

a.

An individual with a disability;

b.

Applying on behalf of one or more individuals with a disability; or

c.

A developer or provider of housing for one or more individuals with a disability;

(2)

The specific exception or modification to the zoning code provision, policy, or practices requested by the applicant;

(3)

Documentation that the specific exception or modification requested by the applicant is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy the residence;

(4)

Any other information that the Director reasonably concludes is necessary to determine whether the findings required by section 90-295(c) can be made, so long as any request for information regarding the disabled person benefited complies with fair housing law protections and the privacy rights of the individuals affected.

(e)

Additional information. If necessary to reach a decision on a request for a reasonable accommodation, the decision-making body may request further information from the applicant. The deadline for the decisionmaking body to render a decision on the application for a reasonable accommodation shall be extended by the number of days it takes the applicant to fully respond to the request for additional information.

(Ord. No. 1852, § 3(Exh. A, § 90-294), 6-12-12)

(a)

Minor reasonable accommodations. The director shall mail his or her written determination to approve, conditionally approve, or deny a request for a minor reasonable accommodation to the applicant within 30 days of the receipt of a complete application for a minor reasonable accommodation. The mailed notice of decision shall inform the applicant that the decision of the director may be appealed to the planning commission within 14 days of the mailing of the notice.

(b)

Major reasonable accommodations.

(1)

A major reasonable accommodation request that is filed concurrently with another application for a discretionary permit shall be heard with, and subject to, the notice, review, approval, and appeal

procedures prescribed for the other discretionary permit filed concurrently with the reasonable accommodation request.

(2)

If a major reasonable accommodation request is not filed concurrently with an application for another discretionary permit, then the notice, review, approval, and appeal procedures for an administrative use permit shall be followed if the proposed use is a small group home or large group home with up to ten residents. If the proposed use is a large group home with 11 or more residents then the notice, review, approval and appeal procedures for a conditional use permit shall be followed. The findings in section 90269 and section 90-285(c) shall be made for a reasonable accommodation to be granted.

(3)

Notwithstanding the foregoing, the standard of review on appeal of a decision on a major reasonable accommodation shall not be de novo and the appellate body shall determine whether the findings made by the decision-making body are supported by substantial evidence presented during the hearing. The appellate body may sustain, reverse or modify the decision or remand the matter for further consideration, which remand shall include specific issues to be considered or a direction for a de novo hearing.

(c)

Findings. The written decision to approve, conditionally approve, or deny a request for a reasonable accommodation shall be based on the following findings, all of which are required for approval:

(1)

The requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the fair housing laws.

(2)

The requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling.

(3)

The requested accommodation will not impose an undue financial or administrative burden on the city as undue financial or administrative burden is defined in fair housing laws.

(4)

The requested accommodation will not result in a fundamental alteration in the nature of the city's zoning program, as fundamental alteration is defined in fair housing laws.

(5)

The requested 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.

(d)

[Approving alternate accommodations.] In making findings the [sic] in subdivision (b), the decision maker may approve alternative reasonable accommodations which provide an equivalent level of benefit to the applicant.

(e)

[Determination of provision of accommodations.] The city may consider, but is not limited to, the following factors in determining whether the requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling:

(1)

Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability;

(2)

Whether the individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation;

(3)

In the case of a group home, whether the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants;

(4)

In the case of a group home, whether the existing supply of facilities of a similar nature and operation in the community is sufficient to provide individuals with a disability an equal opportunity to live in a residential setting.

(f)

[Determination of alteration to accommodation.] The city may consider, but is not limited to, the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the city's zoning program:

(1)

Whether the requested accommodation would fundamentally alter the character of the neighborhood;

(2)

Whether the accommodation would result in a substantial increase in traffic or insufficient parking;

(3)

Whether granting the requested accommodation would substantially undermine any express purpose of either the city's general plan or an applicable specific plan;

(4)

In the case of a group home, whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation.

(g)

Rules while decision is pending. While a request for reasonable accommodation is pending, all laws and regulations otherwise applicable to the property that is the subject of the request shall remain in full force and effect.

(h)

Effective date. No reasonable accommodation shall become effective until the decision to grant such accommodation shall have become final by reason of the expiration of time to make an appeal. In the event an appeal is filed, the reasonable accommodation shall not become effective unless and until a decision is made on such appeal and becomes final.

(Ord. No. 1852, § 3(Exh. A, § 90-295), 6-12-12)

(a)

Expiration. Any reasonable accommodation approved in accordance with the terms of this division shall expire within 24 months from the effective date of approval or at an 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)

Time extension. The director may approve a time extension for a reasonable accommodation for good cause for a period or periods not to exceed one year. An application for a time extension shall be made in writing to the director no less than 30 days or more than 90 days prior to the expiration date.

(1)

Notice. Notice of the director's decision on a time extension shall be provided as specified in this chapter. All written decisions shall give notice of the right to appeal and to request reasonable accommodation in the appeals process.

(2)

Appeal of determination. A time extension for a reasonable accommodation shall be final unless appealed within 14 calendar days of the date of mailing of the determination. An appeal shall be made in writing and shall be noticed and heard pursuant to the procedures established in this chapter.

(e)

Violation of terms. Any reasonable accommodation approved in accordance with the terms of this Code may be revoked if any of the conditions or terms of such reasonable accommodation are violated, or if any law or ordinance is violated in connection therewith.

(f)

Discontinuance. A reasonable accommodation shall lapse if the exercise of rights granted by it is discontinued for 180 consecutive days. If the persons initially occupying a residence vacate, the reasonable accommodation shall 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 the Code, and (2) the accommodation is necessary to give another individual with a disability an equal opportunity to enjoy the dwelling. The director may request the applicant or his or her successor in interest to the property to provide documentation that subsequent occupants are individuals with a disability. Failure to provide such documentation within ten days of the date of a request by the city shall constitute grounds for discontinuance by the city of a previously approved reasonable accommodation.

(g)

Revocation. Procedures for revocation shall be as prescribed by section 90-43 et seq., of this chapter.

(Ord. No. 1852, § 3(Exh. A, § 90-296), 6-12-12)

A request for changes in conditions of approval of a reasonable accommodation, or a change to plans that would affect a condition of approval shall be treated as a new application. The director may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or addition to the plan or the conditions of approval, and are consistent with the intent of the original approval.

(Ord. No. 1852, § 3(Exh. A, § 90-297), 6-12-12)

Secs. 90-288—90-290. - Reserved.