Ordinance 3668

ORDINANCE NO. 3668
ORDINANCE OF THE MARIN COUNTY BOARD OF SUPERVISORS
AMENDING A PROCEDURE FOR REASONABLE ACCOMMODATION IN THE COUNTY’S LAND USE AND ZONING AND BUILDING REGULATIONS PURSUANT TO FAIR HOUSING LAWS

THE MARIN COUNTY BOARD OF SUPERVISORS HEREBY ORDAINS AS FOLLOWS:

SECTION I: PURPOSE AND FINDINGS

I. WHEREAS, it is the policy of the County of Marin, pursuant to the Federal Fair Housing Amendments Act of 1988 and the California Fair Employment and Housing Act (hereafter “fair housing laws”) to provide individuals with disabilities reasonable accommodation in rules, practices and procedures to ensure equal access to housing and to facilitate the development of housing for individuals with disabilities; and

II. WHEREAS, on December 3, 2013, the Marin County Board of Supervisors adopted Ordinance 3609 and established a procedure for making requests for reasonable accommodation in land use, zoning and building regulations, policies, practices and procedures of the County of Marin to comply fully with the intent and purpose of fair housing laws; and

III. WHEREAS,the proposed amendment would clarify specific provisions of the ordinance and modify the procedures for appeals; and

IV. WHEREAS, fair housing laws impose an affirmative duty on local governments to make reasonable accommodation in their land use, zoning and building regulations, policies, practices and procedures when such accommodation may be necessary to afford individuals with disabilities an equal opportunity to housing; and

V. WHEREAS, the Housing Element of the County of Marin must identify and develop a plan for removing governmental constraints to housing for individuals with disabilities including local land use, zoning and building regulation constraints for providing reasonable accommodation; and

VI. WHEREAS, the Attorney General of the State of California has recommended that cities, towns and counties implement fair housing reasonable accommodation procedures for making land use, zoning and building determinations concerning individuals with disabilities to further the development of housing for individuals with disabilities; and

VII. WHEREAS, a fair housing reasonable accommodation procedure for individuals with disabilities and developers of housing for individuals with disabilities to seek relief in the application of land use, zoning and building regulations, policies, practices and procedures will further the jurisdiction’s compliance with Federal and State fair housing laws and provide greater opportunities for the development of critically needed housing for individuals with disabilities; and

VIII. WHEREAS, the Marin County Board of Supervisors certified a Final Environmental Impact Report (EIR) for the Marin Countywide Plan prior to the adoption of the 2007 Marin Countywide Plan, and a Supplemental Environmental Impact Report (SEIR) Addendum for the 2015-2023 Marin County Housing Element; and

IX. WHEREAS, the following findings can be made to approve the proposed ordinance:

• The proposed Ordinance would implement a program contained in the Housing Element of the Countywide Plan; and
• The actions of this Ordinance are encompassed within the scope of the SEIR Addendum for the 2015-2023 Marin County Housing Element; and
• The proposed amendments would not be detrimental to the public interest, health, safety, convenience, or welfare of the County.

SECTION II: APPLICABILITY

I. WHEREAS, reasonable accommodation in the land use and zoning context means providing individuals with disabilities or developers of housing for people with disabilities, flexibility in the application of land use, zoning and building regulations, policies, practices and procedures, or even waiving certain requirements, when it is necessary to eliminate barriers to housing opportunities; and

II. WHEREAS, an individual with a disability is someone who has a physical or mental impairment that limits one or more major life activities; anyone who is regarded as having such impairment; or anyone with a record of such impairment; and

III. WHEREAS, a request for reasonable accommodation may be made by any individual with a disability, their representative, or a developer or provider of housing for individuals with disabilities, when the application of a land use, zoning or building regulation, policy, practice or procedure acts as a barrier to fair housing opportunities.

SECTION III: NOTICE TO THE PUBLIC OF AVAILABILITY OF REASONABLE ACCOMODATION PROCESS

I. WHEREAS, notice of the availability of reasonable accommodation advising the public of the availability of the procedure for eligible individuals shall be prominently displayed at public service counters in the Community Development Agency’s (“CDA”) Planning, Building and Safety, and Environmental Health Services divisions. Forms for requesting reasonable accommodation shall be available to the public in the Planning, Building and Safety, and Environmental Health Services divisions.

SECTION IV: REQUESTING REASONABLE ACCOMODATION

I. WHEREAS, in order to make housing available to an individual with a disability, any eligible person as defined in Section II may request a reasonable accommodation in land use, zoning and building regulations, policies, practices and procedures; and

II. WHEREAS, requests for reasonable accommodation shall be submitted to CDA; and

III. WHEREAS, requests for reasonable accommodation shall be in writing and provide the following information:

1. Name and address of the individual(s) requesting reasonable accommodation;
2. Name and address of the property owner(s) (if different);
3. Address and assessor's parcel number of the property for which accommodation is requested;
4. Evidence that the request is for an individual with a disability under fair housing laws;
5. Description of the requested accommodation and the regulations, policies, practices, or procedures for which accommodation is sought;
6. Reason that the requested accommodation may be necessary for the individual(s) with the disability to use and enjoy the dwelling; and
7. What alternative accommodations, if any, have been considered and rejected by the applicant.

IV. WHEREAS, any information identified by an applicant as confidential shall be retained in a manner so as to respect the privacy rights of the applicant and shall not be made available for public inspection; and

V. WHEREAS, a request for reasonable accommodation in regulations, policies, practices and procedures may be filed at any time that the accommodation may be necessary to ensure equal access to housing. A reasonable accommodation does not affect an individual’s obligations to comply with other applicable regulations not at issue in the requested accommodation; and

VI. WHEREAS, if an individual needs assistance in making the request for reasonable accommodation, the County will provide assistance to ensure that the process is accessible.

SECTION V: REVIEW AUTHORITY

I. WHEREAS, requests for reasonable accommodation shall be reviewed by the Director of CDA or their designee (“Review Authority”), who may consult with the Office of Disability Access of the County of Marin Department of Public Works, using the criteria set forth in Section VI; and

II. WHEREAS, the Review Authority shall issue a written decision on a request for reasonable accommodation within thirty (30) business days of the date of the application being deemed complete and may grant, grant with modifications, or deny a request for reasonable accommodation in accordance with the required findings set forth in Section VI; and

III. WHEREAS, if necessary to reach a determination on the request for reasonable accommodation, the Review Authority may request further information from the Applicant consistent with fair housing laws, specifying in detail the information that is required. In the event that a request for additional information is made, the thirty (30) business day period to issue a decision is stayed until the Applicant completely responds to the request.

SECTION VI: REQUIRED FINDINGS FOR APPROVING A REASONABLE ACCOMMODATION REQUEST

I. WHEREAS, the written decision to grant, grant with modifications, or deny a request for reasonable accommodation shall be consistent with fair housing laws and based on the following factors:

1. Whether the housing, which is the subject of the request for reasonable accommodation, will be used by an individual with disabilities protected under fair housing laws;
2. Whether the requested accommodation is necessary to make use or enjoyment of housing available to an individual with disabilities protected under fair housing laws;
3. Whether the requested accommodation would impose an undue financial or administrative burden on the County;
4. Whether the requested accommodation would require a fundamental alteration in the nature of the County's land use and zoning or building program; and
5. Whether there is an alternative accommodation which may provide an equivalent level of benefit to the Applicant.

SECTION VII: WRITTEN DECISION ON THE REQUEST FOR REASONABLE ACCOMODATION

I. WHEREAS, the written decision on the request for reasonable accommodation shall explain in detail the basis of the decision, including the Review Authority’s findings on the criteria set forth in Section VI. All written decisions shall give notice of the Applicant’s right to appeal and to request reasonable accommodation in the appeals process as set forth below. The notice of decision shall be sent to the Applicant by mail; and

II. WHEREAS, the written decision of the Review Authority shall be final unless the Applicant appeals it to the State of California Office of Administrative Hearings (“OAH”); and

III. WHEREAS, while a request for reasonable accommodation is pending, all laws and regulations otherwise applicable to the property that is the subject of the request shall remain in full force and effect.

SECTION VIII: APPEALS

I. WHEREAS, within ten (10) business days of the date of the Review Authority’s written decision, the Applicant may appeal a decision by submitting an appeal request to the Review Authority. Appeals from the adverse decision shall be made in writing; and

II. WHEREAS, if an individual needs assistance in filing an appeal on an adverse decision, the County will provide assistance to ensure that the appeals process is accessible; and

III. WHEREAS, all appeals shall contain a statement of the grounds for the appeal, the written decision issued by the Review Authority, and any additional relevant evidence submitted by CDA or the Applicant. Any information identified by the Applicant as confidential shall be retained in a manner so as to respect the privacy rights of the Applicant and shall not be made available for public inspection; and

IV. WHEREAS, The Review Authority shall forward all appeals and other necessary documents to OAH within fifteen (15) business days of the receipt of a complete appeal request. CDA may be represented at the hearing by an employee of CDA who is not an attorney, or by an attorney. The Applicant may represent themself at the hearing, or may be represented by an attorney at the Applicant’s expense. OAH shall conduct a hearing within forty-five (45) business days following the date on which an appeal was filed with OAH. The parties may stipulate to a later hearing. The scope of the hearing shall be the criteria set forth in Section VI. OAH shall issue a written determination of the appeal within ten (10) business days of the conclusion of the hearing or close of the record, whichever is later. The parties may stipulate to a longer time for issuance of a written determination; and

V. WHEREAS, OAH may grant a continuance for good cause as necessary and as required by due process. In the event of a continuance, the herein established timeline for appellate proceedings shall be prolonged only to the extent necessary to accommodate the precipitating circumstances; and

VI. WHEREAS, the decision of the OAH Hearing Officer shall be subject to judicial review pursuant to the provisions of §53069.4(b)(1) of the Government Code only if a notice of appeal pursuant to that section is filed in the superior court of Marin County within twenty (20) business days after service of the final administrative order or decision of the Hearing Officer; and

VII. WHEREAS, nothing in this procedure shall preclude an aggrieved individual from seeking any other state or federal remedy available.

SECTION IX: SEVERABILITY

I. WHEREAS, if any section, phrase sentence or other portion of this ordinance for any reason is held or found to be invalid, unenforceable, or unconstitutional by a court of competent jurisdiction, that portion shall be deemed a separate, distinct and independent provision, and the holding shall not affect the validity of the remaining portions of this ordinance.

SECTION X: ACTION

NOW, THEREFORE, BE IT RESOLVED that the Marin County Board of Supervisors adopts the provisions contained in this Ordinance.

SECTION XI: EFFECTIVE DATE AND PUBLICATION

This Ordinance shall be and is hereby declared to be in full force and effect as of thirty (30) days from and after the date of its passage and shall be published once before the expiration of fifteen (15) days after its passage, with the names of the Supervisors voting for and against the same, in the Marin Independent Journal, a newspaper of general circulation published in the County of Marin.

SECTION XII: VOTE

PASSED AND ADOPTED at a regular meeting of the Board of Supervisors of the County of Marin held on this 11th day of April 2017, by the following vote: