Title
Study Session On Zoning Code Amendments - Reasonable Accommodation - Study session to discuss proposed zoning code amendments to provide streamlined approval of requests for reasonable accommodations, i.e., exceptions to zoning restrictions to allow physical modifications to buildings and sites to provide access to housing for persons with disabilities. CEQA Determination: Exempt pursuant to CEQA Guidelines Section 15061(b)(3).
Body
TO: Honorable President and Members of the Planning Board
EXECUTIVE SUMMARY
Section 30-5.17 of the Alameda Municipal Code (AMC) provides a procedure to obtain exceptions to otherwise-applicable zoning code standards in order to facilitate equal access to housing opportunities by persons with disabilities. These provisions are required to comply with State and federal fair housing laws. Referred to as “reasonable accommodation,” the provisions, as applied to zoning codes, are meant to allow various physical modifications to a building or site that aren’t otherwise allowed or to allow them with administrative approval instead of requiring a public review process that could delay or complicate the approval of what is otherwise a legally mandated adaptation to ensure fair access to housing. Although fair housing law applies to discrimination of any kind, reasonable accommodation in this context is primarily aimed at facilitating housing choice for persons with disabilities through modifications to buildings and sites even if inconsistent with local zoning and development regulations. The City of Alameda’s (City) existing code is in need of revisions to simplify the procedure for obtaining these accommodations.
BACKGROUND
The City’s 2023-2031 Housing Element commits the City to review and amend the zoning code “to ensure certainty and eliminate discretionary review” for requests for reasonable accommodation. (Housing Element p. 34.)
According to the California Code of Regulations (CCR), section 12176:
(a) A reasonable accommodation is an exception, change, or adjustment in rules, policies, practices, or services when such an accommodation may be necessary to afford an individual with a disability an equal opportunity to use and enjoy a dwelling unit and public and common use areas, or an equal opportunity to obtain, use, or enjoy a housing opportunity.
(b) A reasonable modification is a change, alteration or addition to the physical premises of an existing housing accommodation, when such a modification may be necessary to afford the individual with a disability an equal opportunity to use and enjoy a dwelling unit and public and common use areas, or an equal opportunity to obtain, use, or enjoy a housing opportunity.
(c) It is a discriminatory housing practice for any person to refuse to make reasonable accommodations unless providing the requested accommodation would constitute an undue financial and administrative burden or a fundamental alteration of its program, or if allowing an accommodation would constitute a direct threat to the health and safety of others (i.e. a significant risk of bodily harm) or would cause substantial physical damage to the property of others…
Similarly, State Housing Element law provides as follows:
[A]n analysis of potential and actual government constraints upon the maintenance, improvement or development of housing… for persons with disabilities as identified in the analysis pursuant to paragraph (7), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, local processing and permit procedures…. The analysis shall also demonstrate local efforts to remove governmental constraints that hinder the locality from meeting … the need for housing for persons with disabilities….” (Government Code Section 65583(a)(5).)
Government Code Section 65583(c)(3) also requires the housing element provide a program to “[a]ddress and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of housing for persons with disabilities. The program shall remove constraints to, and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities.”
DISCUSSION
The City’s zoning code section for reasonable accommodation, like nearly every code in California, is based on a model ordinance promulgated in the late 1980s as a means of addressing civil rights and fair housing law at the federal and state level. The laws primarily apply to public and private housing providers, who have an obligation to avoid discrimination in how they design, market, maintain and adapt housing to meet the needs of all qualified tenants and buyers. In the land use context, zoning codes can have an inadvertent discriminatory effect when the physical development standards limit the ability of an existing or prospective resident with a disability to access and use a property to the same degree as someone without a disability.
A typical accommodation is a wheelchair ramp in the front yard to access a front porch, which is already addressed in AMC section 30-5.7.j and thus does not require a reasonable accommodation in many cases:
Structures for Disabled Access. Uncovered wheelchair ramps or other structures providing disabled access may encroach into any required front, side, street side, or rear yard as long as the access structure provides continuous access from the street or parking area to an entrance of the building. The encroachment shall be the minimum necessary to provide safe and adequate access.
Other situations that can arise include the location of parking and the paving of yards, elevator/lifts on the exterior of a building, the addition of a bathroom on a ground floor, and other improvements that may not fit within the zoning code setbacks, coverage limitations, or design review requirements. The recent adoption of new objective design review standards may result in additional cases of non-conformity that warrant approval of a reasonable accommodation request.
The City has received very few applications for reasonable accommodations. The zoning code currently provides that the requests can be considered individually or can be combined with other discretionary permits that are also required for a project that are not directly related to the accommodation. However, combining the processes can be confusing to the applicant, community members and decision-makers, and is in conflict with statewide advice from the California Attorney General to avoid the possibility of community opposition to what is a legal right to fair housing.
The proposed amendments (Attachment 1) add to and are more comprehensive than amendments already made during the Housing Element adoption process, when several of the prior required findings were removed. The proposed amendments address possible barriers to housing by:
1. Making the process administratively simple and cost-free to the applicant.
2. More explicitly allowing anyone to apply (whether they be a resident, representative, or development sponsor).
3. Allowing the accommodation to remain permanently even if the person with a disability does not remain in residence.
4. Explicitly requiring confidentiality of information pertaining to the applicant’s disability.
5. Shortening the review period during which the Planning Director must act from 45 days to 30 days.
6. Clarifying the necessary findings and specifically allowing the Planning Director to consider equally effective alternatives.
7. Providing that no public review is required and an appeal is allowed only by the applicant.
Other Accessibility Standards
Section 30-18 of the AMC addresses universal residential design. The requirements go beyond the California Building Code (which applies accessibility requirements to projects of at least three apartment units or four condominium units) to require visitability features for all new residential units and universal design features on at least 30 percent of all new residential units in developments of five or more units. The requirements are similar.
Visitability requires: 1. An accessible exterior access to an accessible entry; 2. An accessible interior access from the accessible entry to an accessible powder room, accessible common use room or an accessible bedroom, and adaptable internal stairs; 3. Blocking within the walls to support future installation of grab bar/hand rails in all bathrooms; and 4. If ground floor open space is provided, then an accessible path of travel to the open space shall be provided.
Universal design requirements add the following features to the visitability requirements: an accessible bathroom (instead of a powder room) and accessible kitchen, accessible common or private open space, and an accessible laundry facility.
Other Zoning Code Exceptions
The proposed amendments are intended to supplement the City’s other zoning ordinance provisions that allow exceptions to the development standards including design review, use permits, variances, and density bonus. However, those processes can require complex application materials, extensive staff analysis, and a public review process including the possibility of an appeal. Therefore, they are not an adequate means of accomplishing the needs of reasonable accommodation.
ENVIRONMENTAL REVIEW
The proposed amendments are exempt from CEQA pursuant to section 15061(b)(3), the common sense exemption where it can be seen with certainty that the proposed zoning text amendments have no possibility of having a significant effect on the environment because they relate to minor adjustments of land use regulations at legally existing uses and buildings. It would otherwise be too speculative to consider citywide impacts of the types of effects of these text amendments.
RECOMMENDATION
Conduct a study session to discuss the recommended amendments to Alameda Municipal Code, Section 30-5.17 Reasonable Accommodation and give direction to staff for edits to bring back to the Planning Board for a public hearing and recommendation to City Council at a later date.
Respectfully Submitted,
Allen Tai, Acting Director of Planning, Building and Transportation
By,
Steven Buckley, Planning Services Manager
Exhibit:
1. Draft Ordinance Amendments