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Page 1 of 2 Millcreek City Hall 3330 South 1300 East Millcreek, Utah 84106 millcreek.us Planning & Zoning (801) 214-2700 [EMAIL REDACTED] 25 July 2024 STAFF MEMORANDUM To: Community Councils Meeting Date: East Millcreek Community Council – August 1st Mt. Olympus Community Council – August 5th Millcreek Community Council – August 6th Canyon Rim Citizens Association – August 7th RE: Recommendations to the Millcreek Planning Commission and Millcreek City Council regarding amendments to the Millcreek Code for Residential Facilities for Persons with a Disability and Reasonable Accommodations. File: ZT-24-015 Scope of Decision: Discretionary. This is a legislative matter, to be decided by the Millcreek City Council upon receiving a recommendation from the Community Council(s) and the Millcreek Planning Commission. Prepared by: City Staff Presented by: Francis Xavier Lilly, AICP, Planning Director Request As part of Millcreek’s comprehensive zoning code update, City Planning Staff is seeking the Community Council’s recommendation regarding amendments to Millcreek’s ordinance regarding Residential Facilities for persons with a Disability, and reasonable accommodations. Federal law and state law requires cities to permit residential facilities for persons with a disability anywhere a city permits any other type of housing. A city’s scope in limiting these facilities, even in single-family neighborhoods is limited. However, if an applicant wishes to exceed the maximum occupancy limits established in a zone (for example, the dwelling unit occupancy limit in a single-family zone is four unrelated adults), the applicant must request a reasonable accommodation in order to provide an equal opportunity for persons with a disability to reside in the neighborhood. In order to qualify, one must first qualify as a Residential Facility for Persons with a Disability, and be eligible for licensure as such by the State of Utah Department of Health and Human Services. Staff notes that an individual actively receiving treatment for a substance use disorder is considered ‘disabled’ under federal law. Thus, sober living residences and other residential treatment programs are considered eligible, provided they obtain the necessary state licensing. Beyond that, our current ordinance provides relatively little guidance on how one applies for a reasonable accommodation and what guidelines and parameters exist. Guidance from the Department of Justice and the Department of Housing and Urban Development state that cities may not utilize land use policies to treat person with disabilities less favorably than non-disabled persons, but that cities can impose reasonable standard with respect to licensing, and ensuring that the fundamental character of a neighborhood is preserved. You are encouraged to read the federal guidance here. You are also encouraged to review the city’s current ordinance regarding Residential Facilities for Persons with a Disability here. ---PAGE BREAK--- Page 2 of 2 Millcreek City Hall 3330 South 1300 East Millcreek, Utah 84106 millcreek.us Planning & Zoning (801) 214-2700 [EMAIL REDACTED] The revised ordinance is an attempt to balance the interests of persons with a disability with a city’s prerogative to impose reasonable land use regulations. The new ordinance accomplishes the following: 1) New language that states that a reasonable accommodation does not require structural or landscaping alterations that would change the structure’s residential character or appearance (see page 2 of the attached ordinance). 2) Reorganizes the “reasonable accommodation” language into a new section (18.83.050, page Includes language that states that a reasonable accommodation cannot create a nonconforming use if that reasonable accommodation were to be terminated (such as a reasonable accommodation that could permit a duplex in a single-family zone). 3) Creates approval criteria for reasonable accommodation determinations (see pages 4 and 5 of the attached ordinance). 4) Significantly adds to the submittal requirements for reasonable accommodation determinations, which are currently lacking (see pages 6 and 7 of the attached ordinance). 5) Adds to termination and transferability requirements for reasonable accommodation permits (see page 7 of the attached ordinance). 6) Adds a definition for “Reasonable Accommodation” (see page 8 of the attached ordinance). Millcreek has a significant number of residential facilities for persons with a disability in its boundaries (see map, attached). Most of these facilities are good neighbors and provide an essential housing opportunity to those most in need. However, some applications have generated controversy, and we believe our current standards should be improved to provide staff with the ability to adequately review requests for reasonable accommodations. Above all, service providers who apply for these accommodations have an obligation to provide a humane and effective living environment for persons with a disability, and Millcreek has an obligation to ensure these facilities are good and productive neighbors. Millcreek is limited in its ability to deny a permit for a group home in a single-family neighborhood. We also can’t impose a requirement on group homes that we normally wouldn’t impose on a single-family residence or other permitted use, such as an enhanced noticing requirement or a conditional use requirement. These requirements could be construed as imposing an undue burden on disabled Utahns. However, case law and guidance from the Department of Justice and the Department of Health and Human Services does state that it is an applicant’s burden to prove that a reasonable accommodation is needed. This ordinance is intended to provide a structure around future requests for reasonable accommodations in a manner that complies with federal disability and fair housing laws and that welcomes disabled residents into our community, while protecting Millcreek’s legitimate interests in preserving the character of its neighborhoods The Planning Commission will be holding a public hearing regarding the proposed updates pertaining to this ordinance on August 21, 2024. ---PAGE BREAK--- Millcreek Together Code Update I Residential Facilities for Persons 1 18.83 Residential Facilities for Persons with a Disability 18.83.010 Purpose The purpose of this chapter is to: A. Balance local zoning considerations with state and federal mandates including those that may require a reasonable accommodation for disabled persons living together in a group housing arrangement in a residential neighborhood. B. Avoid discrimination in housing against persons with disabilities as provided in the Utah Fair Housing Act and the federal Fair Housing Act, as amended, as interpreted by the courts having jurisdiction over the city. 18.83.020 Applicability The requirements of this chapter apply to any facility, residence, group home or other congregate housing arrangement for persons with a disability notwithstanding any conflicting provision in this title or any other section of this Code. 18.83.030 Licensing For Residential Facilities for Persons with a Disability Residential Facilities for Persons with a Disability require a license or certification by the Utah Department of Health and Human Services as a Human Services Program or Facility, or as a Health Facility, and is subject to the requirements as set forth in Utah Code Ann. §26B-2-1-101 and the Utah Administrative Code. 18.83.040 Uses A. Subject to the provisions of this chapter, and notwithstanding any contrary provision of this title, a residential facility for persons with a disability shall be a permitted use in any zone where similar residential dwellings that are not residential facilities for persons with a disability are allowed. A residential facility for persons with a disability that would likely create a fundamental change in the character of the neighborhood may be excluded from a zoning area. A residential facility for persons with a disability shall be a permitted use in any zoning district where a dwelling is allowed, subject to the occupancy limits established for the relevant zone. B. No Permit Required. Four or less unrelated individuals who share housekeeping responsibilities in a single dwelling do not require a zoning permit but function as a "family," as set forth in MKZ 18.99, Definitions. ---PAGE BREAK--- Millcreek Together Code Update I Residential Facilities for Persons 2 C. The Planning Director, with the assistance of the City Attorney, shall consider requests for a permitted use for a "residential facility for persons with a disability" ("facility"). The director or the director's designee shall approve a complete application for a land use permit for the facility in any zone, including residential zones where only single household dwellings are a permitted use, provided: 1. The facility meets or will meet all program, physical facility, and licensure requirements of the state department of human services and/or department of health. 2. Except as otherwise provided in this chapter, buildings and uses shall meet all applicable City development standards, licensing and zoning requirements, unless a reasonable accommodation is requested. 3. The facility shall not house persons who are involuntarily residing therein or who are residing therein as a part of or in lieu of confinement, rehabilitation, or treatment in a correctional facility. 4. The facility not be made available to or occupied by any person whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. 5. The facility, if located in residential zone, shall be capable of use as a facility without structural or landscaping alterations that would change the structure's residential character or appearance. Any new or remodeled structure constructed for use as a facility shall be of a size, scale and design that is in harmony with other residential uses in vicinity and shall not create a fundamental change in the residential character of the neighborhood in which it is proposed to be located. D. Institutional Uses. Consistent with the International Building Code, residential facilities designed to house more than sixteen individuals constitute "institutional facilities" likely to create a fundamental change in the character of a single household residential neighborhood. The only residential zone where an application for a for an institution serving more than sixteen residents may be approved is in a zone that allows multi- household dwellings as a conditional or permitted use. ---PAGE BREAK--- Millcreek Together Code Update I Residential Facilities for Persons 3 18.83.050 Reasonable Accommodation A. None of the requirements of this chapter shall be interpreted to limit any reasonable accommodation necessary to allow the establishment or occupancy of a Residential Facility for Persons with a Disability; provided, however, that an accommodation cannot be granted to waive a material zoning requirement (such as lot coverage, parking, setback or height standards), as reasonably determined by the Planning Director; to diminish the required spacing of such facilities as established in the Parking and Mobility Standards; to waive a requirement of the International Building Code or the International Residential Code, as amended in the State of Utah; or to increase the maximum number of occupants of such facilities above the limit specified in MKZ 18.83.040 B. If a reasonable accommodation is requested, the applicant shall provide sufficient evidence that the requested accommodation is necessary to allow disabled individuals reasonable, non-discriminatory, federally mandated housing opportunities in the relevant zone. Evidence may include information relating to the history, management, financial feasibility, and therapeutic benefits/needs of the facility and persons residing in the care facility, and applicable law. The applicant shall submit an application for a Reasonable Accommodation Determination for Residential Facilities for Persons with a Disability, following the procedure as set forth in MKZ 18.16.030 C. Review of an application for a Reasonable Accommodation Determination for Residential Facilities for Persons with a Disability shall follow the criteria as set forth in MKZ 18.16.030 D. In no case shall a reasonable accommodation be approved, that if the premises are vacated or the facility no longer exists at the approved location, the remaining structure or use would become nonconforming in the zone in which it is located. 18.83.060 Residential Day Treatment A. To avoid excessive traffic, on street parking, and related impacts altering the residential character of a neighborhood, no day treatment for non-residents shall be permitted in residential facilities for the disabled in the R-1 or R-2 residential zones. 18.83.070 Parking A. The minimum number of parking spaces shall be four spaces plus one space for each five residents, provided that if the number of residents who own or operate a motor vehicle exceeds the number of parking spaces established above, additional parking shall be provided to ensure that every resident who owns or operates a motor vehicle has a lawfully located off-street parking space. ---PAGE BREAK--- Millcreek Together Code Update I Residential Facilities for Persons 4 18.83.080 Appeals A. Pursuant to the procedures for permitted uses as set forth in this Code, any person adversely affected by a final decision of the zoning authority may appeal that decision to the Land Use Appeal Authority (LUAA). Application Submittal and Review Procedure for a Reasonable Accommodation Determination for Residential Facilities for Persons with a Disability (located in the Procedures Chapter, 18.16.030 E. Reasonable Accommodation Determination for Residential Facilities for Persons With a Disability 1. Purpose. The purpose of this Section is to establish standards for applications for a Reasonable Accommodation Determination for Residential Facilities for Persons With a Disability in a manner that balances local zoning considerations with state and federal mandates requiring a reasonable accommodation for disabled persons living together in a group housing arrangement in a residential neighborhood. 2. Applicability. Any person or entity seeking a reasonable accommodation to exceed the residential occupancy limits established in any zone for a residential facility for persons with a disability shall apply for a Reasonable Accommodation Determination for Residential Facilities for Persons With a Disability. Applicants have the burden of provides sufficient evidence that the requested accommodation is necessary to allow disabled individuals reasonable, non-discriminatory, federally mandated housing opportunities in the relevant zone. 3. Procedure. An application for a Reasonable Accommodation Determination for Residential Facilities for Persons With a Disability shall follow the procedure for a Site Plan Approval for Permitted Uses as set forth in MKZ XX.XX.XX. 4. Approval Criteria. The Planning Director shall consider the following in making a Reasonable Accommodation Determination for a Residential Facility For Persons With a Disability: a. The facility meets or will meet all program, physical facility, and licensure requirements of the Utah Department of Health and Human Services. ---PAGE BREAK--- Millcreek Together Code Update I Residential Facilities for Persons 5 b. Except as otherwise provided in this chapter, buildings and uses shall meet all applicable City development standards, licensing and zoning requirements. c. The facility shall not house persons who are involuntarily residing therein or who are residing therein as a part of or in lieu of confinement, rehabilitation, or treatment in a correctional facility. d. The applicant provides sufficient evidence that the requested accommodation is necessary to allow disabled individuals reasonable, non-discriminatory, federally mandated housing opportunities in the relevant zone. Evidence may include information relating to the history, management, financial feasibility, and therapeutic benefits of the facility, and applicable law. e. The zoning ordinance applicable to the property. f. The anticipated parking, traffic, and noise impact on the neighborhood if the reasonable accommodation is granted. g. Whether or not the accommodation will be an undue burden or expense to the city. h. The extent to which the accommodation will or will not benefit the applicant. i. The extent to which the accommodation will or will not benefit the community. j. Whether or not the accommodation fundamentally alters the citywide zoning ordinance and whether or not the accommodation would likely create a fundamental change in the character of a residential neighborhood. k. Whether or not the applicant has demonstrated that the accommodation will affirmatively enhance the applicant’s life or ameliorate the effects of the applicant’s disability, or the lives or disabilities of those on whose behalf the applicant is applying. l. Whether or not, without the accommodation, similar housing is available in the city for the applicant or group of applicants. m. The anticipated impact of the requested accommodation on the immediate neighborhood. n. The requirements of applicable federal and state laws and regulations. ---PAGE BREAK--- Millcreek Together Code Update I Residential Facilities for Persons 6 5. Submittal Requirements. Any person seeking a Reasonable Accommodation Determination For A Residential Facility For Persons With A Disability shall submit a complete application, a completed Site Plan Approval for Permitted Uses Checklist, a completed Reasonable Accommodation Determination Checklist, and a fee as set forth in MKZ 18.14.040; and the following additional information: a. The specific regulation, policy, or procedure from which an accommodation is sought and/or for which deviation or waiver is requested. b. A document that provides a detailed explanation of why the requested accommodation is warranted under federal and/or state law, including a description how the person(s) is disabled under the Americans with Disabilities Act or the Fair Housing Act. c. An analysis with evidence, legal authorities, and other information showing that the accommodation is reasonable and necessary to afford the disabled person(s) an equal opportunity to use and enjoy the residential dwelling. d. The number of residents and employees that will have vehicles at the property and a site plan showing where the vehicles will be parked at the property. e. Whether the owner/operator of the Residential Facility For Persons With A Disability or applicant has other facilities for the disabled and, if so, a description and copy of any complaints from neighbors, incident reports from a local police department, or investigations, citations, notices of violations(s) or complaints received from any federal, state, or local agencies, etc. relating to licensure , parking, traffic, a direct threat to health or safety of other persons, or substantial physical damage to the property of others. f. An accurate description of the type of program(s), treatment(s), therapies, and/or services that will be provided to the residents of the Residential Facility For Persons With a Disability, and the clinical rationale for such program(s), treatment(s), therapies, and/or services. g. The category of state licensure that the Residential Facility for Persons With A Disability will have. ---PAGE BREAK--- Millcreek Together Code Update I Residential Facilities for Persons 7 h. An accurate summary and/or description of the admissions criteria and operational protocols for the Residential Facility for Persons With a Disability. 6. Expiration. A Reasonable Accommodation Determination for a Residential Facility for Persons With a Disability that is issued pursuant to this section shall expire within one year from the date of final approval if action is not taken within that time. An applicant may apply for no more than one extension by following the process as set forth in MKZ 18.15.110. For purposes of this subsection, "action" means obtaining the required state licensure and a Millcreek business license. 7. Transferability. Reasonable Accommodation Determinations for Residential Facility are nontransferable. A new Reasonable Accommodation Determination is required if any ownership changes, or if the applicant desires to revise the maximum occupancy, or changes the licensing or disability classification under state or federal law, or remodels or expands. 8. Termination. A use permitted by this shall be subject to revocation by the appropriate land use or licensing authority if: a. The facility is devoted to a use other than a residential facility for persons with a disability; b. The facility exceeds the maximum number of residents specified and approved in the Reasonable Accommodation Determination, or changes the disability classification under state or federal law, or remodels or expands without first applying for and receiving an additional Reasonable Accommodation Determination; c. The facility is not licensed by the Utah Department of Health and Human Services, or if a license is revoked; or d. It is determined by an appropriate authority that residents of the facility have engaged in a pattern of criminal acts of nuisance, theft, or violence in the adjoining neighborhood. Definitions “Disability” means a physical or mental impairment that substantially limits one or more of a person’s major life activities, including a person having a record of such a problem or being ---PAGE BREAK--- Millcreek Together Code Update I Residential Facilities for Persons 8 regarded as having such an impairment. Disability does not include current illegal use of, and/or resulting addiction to, any federally controlled substance as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802. “Reasonable accommodation” means a change in any rule, policy, practice, or service necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. The following words have the following definitions: A. “Reasonable” means that a requested accommodation will not undermine the legitimate purpose of existing zoning regulations notwithstanding the benefit that the accommodation will provide to a person with a disability. B. “Necessary” means that the applicant must show that, but for the accommodation, one or more persons with a disability likely will be denied an equal opportunity to enjoy the housing of their choice. C. “Equal opportunity” means achieving equal results as between a person with a disability and a nondisabled person. ---PAGE BREAK---