To: Planning Commission
From: Planning and Building Department
Agenda Section: Consent
SUBJECT:
title
Draft Request for Reasonable Accommodation for Residential Accessibility Ordinance – Updating Zoning Ordinance to match State and Federal Codes that enable and require issuance of reasonable accommodations for residential accessibility.
Assessor Parcel Numbers (APN) 000-000-000
Record No.: LRP-2023-18374
Countywide
Amendments to the Zoning Regulations to amend Section 312-42 to update the regulations managing Residential Accessibility such that they are consistent with the California Fair Employment and Housing Act, California Government Code Section 11135, the Federal Fair Housing Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (referred to in this staff report and the proposed code as the “Acts”).
end
RECOMMENDATION(S):
Recommendation
That the Planning Commission:
1. Adopt resolution (Attachment 1), which does the following:
a) Finds that the proposed amendments to the Zoning Ordinance are exempt from environmental review; and
b) Finds that the proposed project complies with the General Plan, Local Coastal Program, and Zoning Ordinance; and
c) Recommends that the Board of Supervisors adopt the amendments to the Zoning Ordinance.
Body
DISCUSSION:
As used in this code, Reasonable Accommodations are changes, exceptions, or adjustments to rules, policies, or practices that may be necessary in order to enable a person with disabilities to have an equal opportunity to use and enjoy a dwelling, inclusive of the public and common use spaces. Reasonable Accommodations are meant to eliminate barriers that prevent persons with disabilities from fully participating in housing opportunities. They are granted by request on a per-person basis, so they apply only to the dwellings and associated communal areas of specific individuals with disabilities and typically do not apply after the individual with disabilities has moved out of said dwelling.
Importantly, “reasonable,” as it is used in association with “Reasonable Accommodations,” means that it does not fundamentally alter the nature of policies, practices, and procedures of the granting entity and would not place an undue financial or administrative burden on the granting entity.
The proposed amendment to the zoning regulations amends the out-of-date language within Section 312-42, Requests for Modifications or Exceptions for Residential Accessibility and retitles the section to Requests for Reasonable Accommodation for Residential Accessibility. The intent of the Request for Reasonable Accommodation for Residential Accessibility Ordinance is to provide a procedure for individuals with disabilities to request Reasonable Accommodations, consistent with the Acts. To implement this intent, the proposed amendment removes the existing references to Special Permit requirements to establish that approval of Reasonable Accommodations is a ministerial process, specifies that the Planning Director is the appropriate reviewing and approving authority, specifies that the Board of Supervisors is the appropriate appeal authority, and denotes the fact that decisions on Reasonable Accommodations must be provided in writing within 30 days of submittal. To appropriately regulate the ministerial nature of Reasonable Accommodations, the Request for Reasonable Accommodation for Residential Accessibility Ordinance includes detailed findings and application processing procedures.
The changes incorporated into the County Code are significant, but fully consistent with California Government Code and Federal Government Code. The list below summarizes the effects within each regulatory section of Section 312-42.
A. Application Requirements: (Section 312-42.5) This section establishes what specific submittal materials shall be submitted and may be requested to process a Request for Reasonable Accommodation, as well as what may not be requested. The Planning and Building Department is explicitly prohibited from requesting filing fees for Reasonable Accommodations, though the standard permitting fees for other activities related to the Reasonable Accommodation still may apply. Additionally, subsection 42.5.4 specifies that the collected information is confidential, with the exception of certain elements if the decision on a Request for Reasonable Accommodation is appealed to the Board of Supervisors. Initially, Section 42.2 included ‘the nature of the disability’ in the application requirements. The County may request certification of the presence of a disability that could be resolved by the requested accommodation, but the County may not request details nor the nature of an individual’s disability, so this has been removed for Section 42.5. The County may only request how the requested accommodation is necessary for the individual with the disability to use and enjoy the dwelling.
B. Review Authority and Procedures: (Section 312-42.6) This section establishes that the Planning and Building Director is the authority for approval of requests for Reasonable Accommodations, which may be equally effective alternatives if agreed upon by the applicant, and establishes the 30 calendar day timeframe required from submittal to decision. Approval of a Reasonable Accommodation is a separate procedure and decision from any other permits required to implement the accommodation or develop the property, but they should still be processed concurrently, and the accommodation may not be implemented until such permits are also decided upon. If more information is required to make an appropriate determination on a request for Reasonable Accommodation, the 30 day timeframe may be paused after requesting the additional info, but the County may not abuse this option as a means of extending these timelines.
C. Alternative Reasonable Accommodations: (Section 312-42.8) This section briefly describes that an interactive process between the Director and the applicant is required if it is determined that alternatives to the proposed accommodation are required. Such alternatives may only be sought if the proposed accommodation is determined by the Director to be unreasonable. The alternatives must provide an equivalent level of benefit.
D. Notice to the Public of Availability of Accommodation Process: (Section 312-42.4) This section establishes that the Planning and Building Department office will be required to display information communicating that the procedure to apply for a Reasonable Accommodation is available. Additionally, the forms for applying for Reasonable Accommodations must be available in the Planning and Building Department in accessible formats.
E. Staff Assistance: (Subsections 312-42.5.3 and 312-42.9.3.1) These subsections both identify that Planning and Building staff is required to assist with completing applications by request, such as when an individual’s disability prevents them from filling out forms.
F. Findings and Decision: (Section 312-42.7) This section establishes the required findings necessary to approve or deny a request for Reasonable Accommodation, consistent with the Acts, primarily Section 12179 of Title 2 of the California Code of Regulations. Findings include, but are not limited to, identifying that the reasonable accommodation will benefit an individual with a protected disability, will support the individual’s equal opportunity to use and enjoy a specific dwelling, is reasonable, and will not constitute a direct threat to health, safety, or property of others. The decision must be provided to the applicant as a notice in accordance with Section 312-6.7, Notice of Decision, and must also include the written findings, any information those findings were based on, and the right and process for appeals. Additionally, conditions of approval may be applied to Reasonable Accommodations, if necessary to ensure the accommodation complies with the required findings and if the Planning and Building Department discusses the potential conditions with the applicant in accordance with Section 312-42.8.
G. Appeal Filing and Procedures: (Section 312-42.9) This section establishes that the Board of Supervisors is the appropriate authority to appeal to within 30 days of decision, as well as the appropriate procedures the appeal process shall entail. Notably, despite the appeal requiring a public hearing compliant with the Brown Act, any information submitted as part of a request for Reasonable Accommodation and the appeal thereof will be kept confidential between the applicant, Planning and Building Staff, and the Board, with exceptions provided by Section 12176(e) of Title 2 of the California Code of Regulations.
H. Expiration of Reasonable Accommodations: (Section 312-42.10) This section establishes that approvals for Reasonable Accommodations expire two years after the date they were granted, or after the Reasonable Accommodation ceases use for a consecutive period of two or more years, in which case such accommodation may be required to be physically removed. The two years after granting the accommodation may be extended for up to one year at a time, upon application and approval of an Extension. Upon cessation of use, the Director may determine that the accommodation is not required to be removed if it is a modification that is physically integrated into the residential structure and cannot be easily removed, or if the accommodation will be used by another qualifying individual with a disability.
Environmental Review: This is covered by the commonsense exemption which specifies that CEQA applies only to projects which have the potential for causing a significant effect on the environment (Section 15061(b)(3) of the State CEQA Guidelines) and the definition of project, which excludes continuing administrative activities such as general policy and procedure making (Section 15378(b)(2) of the State CEQA Guidelines). Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Activities which are not projects are also not subject to CEQA. The proposed amendment only implements existing State Law which the County is already beholden to, so approval of the amendment does not have the potential to have a significant effect on the environment and will only adjust internal procedures to effectively meet existing State Law requirements.
OTHER AGENCY INVOLVEMENT:
The project was referred to County Counsel, the County ADA Coordinator, the County Department of Health and Human Services, the California Coastal Commission, Disability Rights California, Humboldt Senior Resource Center, Area 1 Agency on Aging, Tri-County Independent Living, and Redwood Coast Regional Center. The comments and recommendations have been incorporated into the draft ordinance.
ATTACHMENTS:
Attachment 1 - Draft Resolution
Attachment 2 - Draft Ordinance No. _____
Attachment 3 - Existing Regulations Section 312-42
Please contact Augustus Grochau, Associate Planner, at agrochau@co.humboldt.ca.us or 707_441-2626 if you have questions about this item.