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City Council Work Session
Meeting Date: 04/09/2019  
Subject:    Reasonable Accommodation Process under the Fair Housing Act
From: David Brodie, City Attorney

Council is asked to provide input in developing a process for reasonable accommodation requests as it relates to the Fair Housing Act.
The City has received a request for a reasonable accommodation from the property owner at 12339 Gladiola Street NW.  The City has previously issued a rental license to that property.  Current code allows up to six unrelated persons to reside together as a single housekeeping unit. The rental license holder has indicated that they are operating a sober house at this property and are requesting the City make a reasonable accommodation and allow 10 unrelated persons to live in the home. 

The Fair Housing Act (FHA) determines that reasonable accommodations in housing must be made to those with qualifying disabilities.  The FHA protects those who are recovering from substance abuse, are not actively using, and are working to achieve long term sobriety.  These persons are considered to have a disability under the FHA and are a protected class.  The FHA applies to cities and its land use and zoning laws or practices. In some cases a locality must make a reasonable accommodation to those who are classified as having a disability, thus allowing equal opportunity to housing under the FHA.  The FHA views the strict application of some zoning laws, such as the restriction on the number of unrelated persons who may live in a single family dwelling, as a violation when applied to those with disabilities unless the locality can provide that a waiver (reasonable accommodation) would impose either an undue financial burden on the local government or fundamentally alters the essential nature of the locality’s zoning scheme.   A joint memorandum from HUD and Department of Justice regarding the FHA and local land use law is attached for your reference. 

The City does not have an ordinance or policy that outlines a procedure for reviewing accommodation requests.  Staff is recommending that the City move forward to put a process in place for when the City receives these types of requests.  One option would be to develop a policy for City staff to review any request and render a decision.  City staff would provide the requester with the right to appeal the decision to the City Council.  A second option preferred by the City Attorney’s office and that other cities have followed is to adopt by ordinance that would outline the process for making a reasonable accommodation request and the required standards to grant the accommodation.  For example, in St. Paul and Minneapolis, the decision is made by a Zoning Administrator with a right to appeal the decision to the City Council.  The City of Anoka recently adopted an ordinance that requires accommodation requests to be heard by the City Council.  Standards that would be included in any policy or ordinance to determine whether to grant an accommodation could include:
  1. Whether there is a qualifying disability.
  2. Whether the request is needed to allow a disabled person equal opportunity to use and enjoy a dwelling or to live in a particular neighborhood as persons without disabilities.
  3. Whether the request is reasonable, considering the potential impact on the surrounding uses, to the extent to which the accommodation meets the stated need, and other alternatives that may meet that need.
  4. The number nature and extent of the requested accommodation in relation to the physical limitations of the building and site.
  5. Whether the request would constitute a fundamental alteration of the City’s regulations, policies and procedures.
  6. Whether the request would impose an undue financial or administrative burden on the city.
  7. Any other fact that may have a bearing on the request as determined by the City.
As an aside, the City currently treats sober housing under the rental license code and does not have a separate licensing process for sober housing. 

Given that the City has received a request, time is of the essence and City staff would bring an ordinance for introduction at the first Council meeting in May.  In discussing this topic, the discussion should center on determining a process to review requests for accommodations and not on the specific request.     
No formal action required at this time. Staff requests that the City Council discuss and provide feedback on how staff should move forward on this matter.

FHA/Land use memo

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