Poway Municipal Code Art. IV Requests for Reasonable Accommodation under the Fair Housing Act

This article provides a procedure to request reasonable accommodation for persons with disabilities seeking equal access to housing under the federal Fair Housing Act and the California Fair Employment and Housing Act (the Acts) in the application of zoning laws and other land use regulations, policies and procedures.

(Ord. 699 § 2, 2009)

As used in this article:

“Acts”

means the federal Fair Housing Amendments Acts of 1988 and the California Fair Employment and Housing Act.

“Applicant”

means an individual who files an application for reasonable accommodation under this article.

“Individual with a disability”

means any person who has a medical condition, physical disability, or mental disability as those terms are defined in the California Fair Employment and Housing Act (California Government Code Section 12900 et seq.).

(Ord. 699 § 2, 2009)

A. A request for reasonable accommodation to make specific housing available to an individual with a disability may be made by any person, when the application of a requirement of a zoning or land use regulation or other City requirement, policy or practice acts as a barrier to fair housing opportunities.

B. A request for reasonable accommodation may include a modification or exception to the rules, standards and practices for the siting, development and use of housing or housing-related facilities that would eliminate regulatory barriers and provide a person with a disability equal opportunity to housing of their choice. This article is intended to provide for minor structural modifications and/or regulatory exceptions.

C. A reasonable accommodation cannot waive a requirement for a conditional use permit or development review permit when otherwise required, or result in approval of a use otherwise prohibited by the City’s land use and zoning regulations.

D. Nothing in this article shall be interpreted to require the City to waive or reduce development or building fees associated with the granting of a reasonable accommodation request.

E. A reasonable accommodation may be granted in compliance with this article without the need for approval of a variance in compliance with Chapter 17.50 PMC.

F. A request for reasonable accommodation shall comply with PMC § 17.26.530 (Application requirements).

(Ord. 699 § 2, 2009)

A. Application. Requests for reasonable accommodation requiring review by the Director shall be submitted in the form of an administrative remedy letter request to the Director and shall contain the information listed below. All other requests shall require the approval of a minor development review by the City Council pursuant to Chapter 17.52 PMC and shall contain the following information in addition to the submittal requirements for a minor development review:

1. The applicant’s name, address and phone number;

2. Applicant’s representative’s name, address and phone number (if applicable);

3. Address and/or assessor’s parcel number of the property for which the request is being made;

4. Name and address of the property owner and the property owner’s written consent to the application;

5. The current actual use of the property;

6. The basis of the claim that the individual is considered disabled under the Acts;

7. The zoning provision, regulation or policy from which the reasonable accommodation is being requested;

8. The type of accommodation sought;

9. The reasons why the requested reasonable accommodation is necessary to make the specific property accessible to the individual; and

10. Copies of supportive information deemed necessary by the Department of Development Services to facilitate proper consideration of the request, consistent with the Acts.

B. Review with Other Land Use Applications. If the project for which the request for reasonable accommodation is being made also requires some other discretionary approval (including, but not limited to, conditional use permit, minor conditional use permit, development review, minor development review, general plan amendment, zone change, etc.), then the applicant shall file the information required by this section together for concurrent review with the application for discretionary approval.

C. Application Fee. The application fee for a request for reasonable accommodation shall be the same as the fee for an administrative remedy letter or minor development review, as appropriate, as contained on the City’s master fee schedule unless the request is being made concurrently with an application for some other discretionary approval, in which case, the applicant shall pay only the required application fee for the discretionary approval.

(Ord. 699 § 2, 2009)

A. Approval Authority.

1. Director. The Director of Development Services, or designee, has the authority to review and decide upon requests for reasonable accommodation, including whether the applicant is a disabled person within the meaning of this article, except as noted in subsection (A)(2) of this section.

2. City Council. The City Council has the authority to review and decide upon requests for reasonable accommodation, including whether the applicant is a disabled person within the meaning of this article, when a reasonable accommodation request entails new construction or the expansion of an existing structure that would otherwise require the approval of a variance pursuant to Chapter 17.50 PMC or where a modification to a grading standard is requested.

B. Notice. A notice to the immediately adjacent property owners is required at least 10 days in advance of a decision of the Director or a meeting of the City Council unless the request is being made concurrently with an application for discretionary approval in which case the notice shall be as required pursuant to that discretionary approval.

C. Decision. The Director shall make a written determination within 45 days of the application being deemed complete and either grant, grant with modifications, or deny a request for reasonable accommodation in compliance with PMC § 17.26.550 (Findings and conditions). If the application is reviewed by the City Council, the City Council shall consider an application at the next reasonably available public meeting after an application has been deemed complete. A decision to approve, approve with conditions, or deny the application shall be made in compliance with the findings set forth in PMC § 17.26.550 (Findings and conditions).

(Ord. 699 § 2, 2009)

A. Findings. The written decision to approve, approve with modifications or conditions, or deny a request for reasonable accommodation will be consistent with the Acts and shall be based on consideration of the following factors:

1. Whether the housing in the request will be used by an individual with a disability under the Acts;

2. Whether the request for reasonable accommodation is necessary to make specific housing available to an individual with a disability under the Acts;

3. Whether the requested reasonable accommodation would impose an undue financial or administrative burden on the City;

4. Whether the requested reasonable accommodation would require a fundamental alteration in the nature of a City program or law, including but not limited to land use and zoning;

5. Potential impacts on surrounding uses;

6. Physical attributes of the property and structures; and

7. Whether there are other reasonable accommodations that may provide an equivalent level of benefit.

B. Conditions of Approval. In granting a request for reasonable accommodation, the review authority may impose any conditions of approval deemed reasonable and necessary to ensure that the reasonable accommodation would comply with the findings required by subsection A of this section. The reviewing authority may condition the approval on any or all of the following, or other conditions as deemed appropriate.

1. Removal of the improvements, where removal would not constitute an unreasonable financial burden, when the need for which the accommodation was granted no longer exists;

2. Time limits and/or expiration of the approval if the need for which the accommodation was granted no longer exists;

3. Recordation of a deed restriction requiring removal of the accommodating feature once the need for it no longer exists;

4. Measures to reduce the impact on surrounding uses;

5. Identification of other reasonable accommodations that may provide an equivalent level of benefit; and

6. Other conditions necessary to protect the public health, safety and welfare.

(Ord. 699 § 2, 2009)

A determination to grant or deny a request for reasonable accommodation may be appealed in compliance with Chapter 2.20 PMC. Decisions of the City Council are final.

(Ord. 699 § 2, 2009)