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HomeMy WebLinkAboutO-2022-007 Text Amendment (TX-090-21) to Create a Reasonable Accommodation ProcedureORDINANCE NO. 2022-007 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AMENDING CHAPTER 28, ENTITLED "LAND DEVELOPMENT CODE (LDC)," PART 7, ENTITLED "CODE ADMINISTRATION", ARTICLE 725 ENTITLED "DEFINITIONS," TO AMEND SECTION 725-30, ENTITLED "TERMS DEFINED," BY AMENDING THE DEFINITION OF FAMILY; AMENDING PART I OF THE LDC, ENTITLED "USE REGULATIONS," ARTICLE 105, ENTITLED "USE REGULATIONS FOR RESIDENTIAL AND OPEN SPACE ZONING DISTRICTS," TO CREATE A NEW SECTION 105-250 ENTITLED "REASONABLE ACCOMMODATION PROCEDURES AMENDING CHAPTER 28 ENTITLED "LAND DEVELOPMENT CODE", PART 6, ENTITLED "DEVELOPMENT REVIEW PROCEDURES AND REQUIREMENTS," ARTICLE 610, ENTITLED "PUBLIC HEARING NOTICES," AT SECTION 610-20, ENTITLED "TABLE OF PUBLIC NOTICE REQUIREMENTS." TO INCLUDE THE NOTICE REQUIREMENTS FOR A REASONABLE ACCOMMODATION HEARING BEFORE THE SPECIAL MAGISTRATE; AND AMENDING CHAPTER 2, ENTITLED "ADMINISTRATION;" ARTICLE IV, ENTITLED "CODE ENFORCEMENT;" SECTION 2-84, ENTITLED "POWERS OF SPECIAL MAGISTRATE," TO AMEND THE POWERS OF THE SPECIAL MAGISTRATE TO AUTHORIZE THE SPECIAL MAGISTRATE TO HEAR APPEALS RELATING TO A REASONABLE ACCOMMODATION; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, federal law and federal courts interpreting federal law require cities to treat persons' with a disability equitably, and to provide for a reasonable accommodation of disabled persons needs pursuant to the Americans with Disabilities Act (ADA); and WHEREAS, the concept of a reasonable accommodation is one that attempts to balance a local government's right to control land uses through neutral regulations and its duty to make reasonable accommodations for the disabled under the Fair Housing Amendments Act ("FHAA") [See Bryant Woods Inn, Inc. v. Howard Cnty., 124 F. 3d 597, 603 (4th Cir. 1997)]; and WHEREAS, the FHAA does not, however, provide a "blanket waiver of all facially neutral zoning policies and rules, regardless of the facts ... which would give the disabled carte blanche to determine where and how they would live regardless of zoning ordinances to the contrary" [Id. (internal quotation marks omitted)]; and WHEREAS, under the FHAA, a local goverment, like the City, is required to accommodate the disabled by making accommodations that: (a) are reasonable; (b) are necessary; and (c) afford disabled people equal opportunity to use and enjoy housing [See id (citing 42 U.S. C. ORDINANCE #2022-007 § 3604(f)(3)); see also, Loren v. Sasser, 309 F. 3d 1296, 1302 (11'h Cir. 2002) (stating that an applicant has the burden of proving that a proposed accommodation is reasonable)]; and WHEREAS, the "necessary" element - i.e., the FHAA provision mandating reasonable accommodations, which are necessary to afford an equal opportunity — requires the demonstration of a direct linkage between the proposed accommodation and the "equal opportunity" to be provided to the disabled person [Bryant Woods Inn, 124 F. 3d at 604]; and WHEREAS, this requirement has the attributes of a causation requirement and if the proposed accommodation provides no direct amelioration of a disability's effect, it cannot be necessary [Id.]; and WHEREAS, the "equal opportunity" requirement mandates not only the level of benefit that must be sought by a reasonable accommodation, but also provides a limitation on what is required; and WHEREAS, a strict interpretation of the "necessity" requirements of Section 3604(f)(3)(b) requires an applicant to demonstrate that the proposed accommodation is needed to provide the disabled an equal opportunity to use and enjoy a dwelling [See Schwarz v. City of Treasure Island, 544 F. 3d 1201, 1225-1226 (1 lt" Cir. 2008) (Eleventh Circuit stating that the FHAA "plainly requires the [applicants] to show that the accommodation they requested actually alleviates the effects of a disability"); Lapid-Laurel, LLC v. Zoning Bd ofAdjustment of the Twp. ofScotch Plains, 284 F. 3d 442, 461 (3 d Cir. 2002)]; and WHEREAS, the accommodations must address the needs created by the subject disability and if they exceed such needs, then the disabled person would receive a "better" opportunity to use and enjoy a dwelling, a preference that the language of the FHAA does not support [Schwarz, 544 F. 3d at 1226]; and WHEREAS, to ensure that the City is properly providing for a reasonable accommodation to disabled persons under the ADA, City desires to provide for a process to review an ADA request, and for an appeal process relating to any such request that is denied; and WHEREAS, the City Planning and Zoning Board, sitting as the Local Planning Agency, held a duly advertised public hearing on N o v e rn b e r 17, 2 0 2 1, and recommended approval of the ordinance (TX-090-21); and WHEREAS, the City desires to amend its Land Development Code to accommodate the procedures relating to a reasonable accommodation request; 2 ORDINANCE #2022-007 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the preceding "WHEREAS" clauses are ratified and incorporated as a record of the legislative intent of this Ordinance. Section 2. That Chapter 28 of the City Code of Ordinances, which Chapter is entitled "Land Development Code," Part 7, Entitled "Code Administration", Article 725, entitled "Definitions," at Section 725-30, entitled "Terms Defined," is amended to read as follows: CHAPTER 28 LAND DEVELOPMENT CODE PART 7 — CODE ADMINISTRATION ARTICLE 725 — DEFINITIONS Sec. 725-30 -Terms Defined. Fainily. Any of the following living together as a single housekeeping unit in a dwelling unit: an individual; two (2) or more persons related by legal adoption, blood or a licit marriage; qr a group of not more than three (3) persons who need not be related by blood or marriage; or - group of per -sons that are disabled as defined by federal !a . Section 3. That Chapter 28 of the City Code of Ordinances, which Chapter is entitled "Land Development Code," Part 1, Entitled "Use Regulations," Article 105, Entitled "Use Regulations For Residential And Open Space Zoning Districts," is amended to create a new section 105-250 entitled "Reasonable Accommodation Procedures" to read as follows: CHAPTER 28 LAND DEVELOPMENT CODE PART 1 — USE REGULATIONS 3 ORDINANCE #2022-007 ARTICLE --- 105 — USE REGULATIONS FOR RESIDENTIAL AND OPEN SPACE ZONING DISTRICTS See. 105-250 - Reasonable accommodation procedures. (A) This section implements the -policy of the Cily for the processing of requests for reasonable accommodation related to its ordinances, rules, policies, and procedures for persons with disabilities, or a provider of services to the disabled, as provided by the Federal Fair Housing Amendments Act (42 U.S.C. 3601, et seq.) ("FHA") and Title Il of the Americans with Disabilities Act (42 U.S.C. Section 12131 et seq.) ("ADA"). For purposes of this section, a "disabled" individual or person is an individual who qualifies as disabled under the FHA, ADA or both. AU person who is disabled or a provider of services to the disabled qualifying for a reasonable accommodation mqy request a reasonable accommodation with respect to the Cily's land use and zoning laws, rules, policies, practices and procedures as provided by the FHA and the ADA pursuant to the procedures set out in this section. The pmose of a reasonable accommodation is to modify a specific Cily requirement to ensure an individual with a disabilily has an equal opportunily to use and enjoy a dwelling. (B) A request by an qpplicant for reasonable accommodation under this section shall be made in writing, by coMletion of an gpplication and submittal of a written statement relating to the reasonable accommodation request, which qpplication (and shall be submitted to) the Communily Development Department Lhe "Department"). The reasonable accommodation statement shall contain such infonnation and as is necessM for processing the qpplication and submittal of a written statement related to a reasonable accommodation request. If an eligible individual needs assistance to make a request for an accommodation, the Department will provide assistance, including, but not limited to, transcribing a verbal request into a written request. The 4pplication shall be available at the Department and online on the Cily's website. (C) Should the information provided by the qpplicant to the Cily include medical information or records, including records indicating the medical condition, diagnosis or medical histojy of the disabled individual or his/her clientele, such individual mgy, at the time of submitting such medical information, request that the Cily, to the extent allowed by law, treat such medical information as confidential infonnation of the disabled individual or his/her clientele. The Cily shall thereafter endeavor to provide written notice to the disabled individual or the disabled clientele of the ORDINANCE #2022-007 qpplicant, representative or both, of gLny request received by the Qijy for disclosure of the medical information or documentation which the disabled individual has previously requested to be treated as confidential. The Cily will cooperate with the qpplicant/ or disabled individual to the extent allowed by law, in actions initiated by such individual to oppose the disclosure of such medical information or documentation, but the Cily shall have no obligation to initiate, prosecute or pursue gny such action, or to incur gLny legal or other expenses (whether by retention of outside counsel or allocation of intemal resources) in connection therewith, and mqy colnply with M judicial order without prior notice to the qpplicant or disabled individual. (Q) When a complete reasonable accommodation gpplication has been submitted to the Department, it will be referred to a Cily special magistrate who shall have the authorijy to consider and act on requests for reasonable accommodation, after notice and hearing in accordance with Article 610 of the Land Development Code of the Ci1y. The Department mm evaluate the qpplication and prepare a staff report to address the factors listed in subsection (E) and is authorized to recommend such conditions as mqy be detennined to be necessM to grant a reasonable accommodation given the context of the qpplication. The special magistrate shall consider the request fonn, the staff report, if qpplicable, and M other relevant testimopy or evidence conceming the request for a reasonable accommodation. The request for a reasonable accommodation shall be placed on the docket to be heard by the special magistrate within fogy -five (45) dgys of receipt of the coMplete reasonable accommodation request fonn. A written determination conforming to the decision of the special magistrate shall be issued within fifteen (15) dqys of the colnpleted hearing and mqy, in accordance with federal law: (1) Grant the accommodation request; (2) Grant a portion of the request and deLiy a portion of the request, or impose conditions Lipon the grant of the request or both; o (3) DeLiy the request, in accordance with federal law. AU such denial shall be in writing and shall state the grounds for the denial. All written determinations shall give notice of the right to appeal. The notice of detennination shall be sent to the requesting pgiy (i.e., the disabled individual or his/her representative) by certified mail, return receipt requested. ORDINANCE #2022-007 If reasonably necessM to reach a determination on the request for reasonable accommodation, the special magistrate mgy, prior to the end of the meeting at which the request is considered, request additional information from the requesting pgly, specifying in sufficient detail what information is required. The requesting pgty shall have fifteen (15) dgys after the date of the request for additional information to provide the requested infonnation to the Department. In the event a request for additional information is made, the Department shall have an additional (45) fogy-five-dgy period after the receipt of the additional infonnation to set a second hearing before the special magistrate and a written determination shall be issued within fifteen (15) dgys after the second hearing. If the requesting pqrt_y fails to provide the requested additional information within the fifteen (15) dgy period, a written notice will be issued advising that the requesting pggy had failed to timely submit the additional information, and therefore the reques for reasonable accommodation shall be deemed abandoned or withdrawn and no further action by the Cily with regard to the reasonable accommodation request shall be required. (E) The written decision on a request for a reasonable accommodation made by the sl2ecial magistrate shall be consistent with the FHA and ADA and based on the following factors: (1) Whether the requesting pgly has established that he/she, or the individual on whose behalf the qpplication was submitted, is protected under the FHA, ADA or both by demonstrating that the person is disabled, as defined in the FHA, ADA or both. Although the definition of disabilfty is subject to judicial inteipretation, for pLiMoses of this section the disabled individual must show: a. A physical or mental iMpairment which substantially limits one (1) or more m?jtor life activities; b. A record of having such impairment o c. That the person is regarded as having such impairment. (2) Whether the requested accommodation is reasonable and necessM to afford the disabled individual an equal opportunily to use and enjoy the dwelling. (3) Whether the requested accommodation would impose an undue financial or administrative burden on the Cily. (4) Whether the requested accommodation would require a fundamental alteration in the nature of the land use and zoning regulations of the fity. ORDINANCE #2022-007 If the special magistrate finds that the requested accommodation will impose an undue financial or administrative burden on the Cijy or will require a ftmdamental alteration in the nature of the land use and zoning regulations of the Cily, the special magistrate mqy determine whether an altemative reasonable accommodation exists which would effectively meet the disabilijy related need. An altemative reasonable accommodation mgy be the requested accommodation with conditions. (F) The Cily or the qpplicant mgyqppeal a decision of the special magistrate to the circuit court in and for Broward Coupjy, Florida, in accordance with the Florida Rules of Appellate Procedure. (G) There shall be no fee imposed by the Cijy in connection with a request for reasonable accommodation under this section and the Cjjy shall have no obligation to pgy a requesting pgiy's (or an qppealing pgly's, as qpplicable) attomey fees and costs in connection with the request, or an qppeal. The cost of the advertisement, mailer and labels will be assessed against the qpplicant. (H) While an gpplication for reasonable accommodation, orqppeal of a determination of same, is pending, the Cily will not enforce the subject zoning ordinance, rules, policies, and procedures against the qpplicant. (1) The following general provisions shall be qpplicable: (1) The Cijy shall displqy a notice in the Cily's public notice bulletin board (and shall maintain copies available for review in the Department and the Cily Clerk's office), advising the public that disabled individuals or providers of services to the disabled qualifying for a reasonable accommodation mgy request reasonable accommodation as provided in this Section. (2) A disabled individual mqy qpply for a reasonable accommodation on his/her own behalf or mgy be represented at all stages of the reasonable accommodation process by an attomey, legally gppointed guardian, or other person designated by the disabled individual pursuant to a power of attomey. (3) The Cily shall provide such assistance and accommodation as is required pursuant to FHA and ADA in connection with a disabled person's request for reasonable accommodation, including, without limitation, assistance with reading qpplication questions, responding to questions, completing the form, filing an appeal, and qP12earing a hearing, etc., to ensure the process is accessible. ORDWANCE #2022-007 (4) In the event that a reasonable accommodation is granted, the gpplicant shall comply with q�qy and all qpplicable building and engineerin permitting processes required by the Code of Ordinances and the Land Development Code of the Ci1y. (5) A reasonable accommodation is specific to the individual with a disabilily and does not run with the land. (6) A reasonable accommodation does not alter an individual's obligation to coMply other qpplicable federal, state, couply or Cily requirements, rules, regulations, or laws. Section 4. That Chapter 28 of the City Code of Ordinances, which Chapter is entitled "Land Development Code," Entitled "Code Enforcement;" at Part 6, entitled "Development Review Procedures and Requirements," at Article 610 entitled "Public Hearing Notices" at Section 610-2, entitled "Table of Public Notice Requirements is amended to read as follows: CHAPTER 28 LAND DEVELOPMENT CODE PART 6- DEVELOPMENT REVIEW PROCEDURES AND REQUIREMENTS ARTICLE 610.-PUBLIC HEARING NOTICES See. 610-20. Table of public notice requirements. APPLICATION REQUIRED TIMING OF NEWSPAPER MAIL SIGN Posting TYPE PUBLIC NOTICE NOTICE NOTICE POSTING at City HEARINGS (minimum FORMAT RADIUS REQUIRED? Hall number of (see section and on days prior to 610-30 for city public requirements) Website hearing that notice must be given, unless otherwise specifically provided herein) Administrative city 14 days Standard Ad Within No 5 days Appeal Commission 1,000 feet ORDINANCE #2022-007 Administrative None 14 days prior Not Required Within No 5 days variance to 1,000 administrative feet action Variance Planning & 14 days (2) Standard Ad (2) Within YeS(2) 5 Zoning 1,000 days (2) Board(') feet(2) Waiver of Planning 14 days Standard Ad Within Yes 5 days distance and Zoning 1,000 separation for Board feet establishments serving liquor pursuant to sec. 110-50(E) city 10 days Standard Ad Within Yes 5 days Commission 1,000 feet Reasonable Special 14 days Standard Ad Within Yes 5 dgys Accommodation Ma2istrate I I I I 1,000 eet L- I I -j 1 Re -quest Section 5. That Chapter 2 of the City Code of Ordinances, which Chapter is entitled "Administration;" Article IV, Entitled "Code Enforcement;" at Section 2-84, entitled "Powers Of Special Magistrate," is amended to read as follows: CHAPTER2 ADMINISTRATION ARTICLE IV - CODE ENFORCEMENT See. 2-84. - Powers of special magistrate. The special magistrate shall have the power to: (1) Adopt rules for the conduct of hearings; (2) Subpoena alleged violators and witnesses to hearings. Subpoenas may be served by the police department of the municipality; (3) Subpoena evidence; 9 ORDINANCE #2022-007 (4) Take testimony under oath; and (5) Issue orders having the force of law commanding whatever steps are necessary to bring a violation into compliance-.� (6) Hear requests for abatement or mitigation of fines associated with code compliance liens and may grant, reduce, abate or mitigate accrued fines subject to a lien-.�. and (7) Conduct a reasonable accommodation gppeal hearing pursuant to Section 105-250, of the Land Development Code. Section 6. That if any section, clause, sentence or phrase of this Ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this Ordinance. Section 7. That all ordinances or parts of ordinances in conflict with the provisions of this Ordinance are repealed to the extent of such conflict. Section 8. That this Ordinance shall be effective immediately upon its passage and adoption on second reading. PASSED on first reading on January 11, 2022. PASSED AND ADOPTED on second reading on January 25, 2022. ATTEST: THOMAS SCHNEIDER, CMC CITY CLERK A APPROVED AS TO FORM AND CORRECTNESS: EVCA. BOUISIS CITY ATTOINEY 10 ORDINANCE #2022-007