It is the city's policy to provide individuals with disabilities reasonable accommodation in regulations and procedures to provide equal access to housing, and to facilitate the development of housing. The purpose of this chapter is to provide a procedure under which a disabled person may request a reasonable accommodation in the application of zoning requirements.
This chapter is based on requirements of the federal and state Fair Housing Laws, and implements the housing element of the city's General Plan. It is distinct from the requirements for a variance set forth in Government Code Section 65906 and Chapter 17.64 of this code ("Variances").
(O2010 17, 10/19/10)
In this chapter:
"Applicant"
means a "disabled person" as defined herein who seeks approval of a reasonable accommodation under the provisions of this chapter.
"Director"
means the Community Development Director, or a designee of the Community Development Director or City Manager.
"Disabled person"
means a person who has a medical, physical or mental condition that limits a major life activity, as those terms are defined in California Government Code Section 12926, anyone who is regarded as having such a condition or anyone who has a record of having such a condition. It includes a person or persons, or an authorized representative of a disabled person. The term "disabled person" does not include a person who is currently using illegal substances, unless he or she has a separate disability. (42 U.S.C. Section 3602(h).)
"Fair Housing Laws"
mean: (1) the Federal Fair Housing Act (42 U.S.C. Section 3601 and following); and (2) the California Fair Employment and Housing Act (Govt. Code Section 12955 and following), including amendments to them.
"Reasonable accommodation"
means providing disabled persons flexibility in the application of land use and zoning regulations and procedures, or even waiving certain requirements, when necessary to eliminate barriers to housing opportunities. It may include such things as yard area modifications for ramps, handrails or other such accessibility improvements; hardscape additions, such as widened driveways, parking area or walkways; building additions for accessibility; tree removal; interior modifications such as the inclusion of shower facilities in an accessory structure; or reduced off-street parking where the disability clearly limits the number of people operating vehicles. Reasonable accommodation does not include an accommodation which would: (1) impose an undue financial or administrative burden on the city; or (2) require a fundamental alteration in the nature of the city's land use and zoning program. (Govt. Code Sections 12927(c)(1), (l) and 12955(l); 42 U.S.C. Section 3604(f)(3)(B); 28 C.F.R. Section 35.150(a)(3).)
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A. 
Request. A disabled person may request a reasonable accommodation in the application of the city's land use, zoning and building regulations. Such a request may include a modification or exception to the requirements for the siting, development and use of housing or housing-related facilities to the extent necessary to eliminate regulatory barriers.
B. 
Availability of Information. Information regarding this reasonable accommodation procedure shall be prominently displayed at the public information counters in the Planning Division, advising the public of the availability of the procedure for eligible applicants, and be made available in any other manner as determined by the Director.
C. 
Assistance. If an applicant needs assistance in making the request, the Planning Division will endeavor to provide the assistance necessary to ensure that the process is available to the applicant.
D. 
Balancing Rights and Requirements. The city will endeavor to balance: (1) the privacy rights and reasonable request of an applicant for confidentiality; with (2) the land use requirements for notice and factual findings, in the city's requests for information, considering an application, preparing written findings and maintaining records for a request for reasonable accommodation.
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A. 
Application—General. The applicant shall submit a request for reasonable accommodation on a form provided by the Planning Division. To the extent that the applicant desires to provide information to the city in a confidential manner (particularly regarding the applicant's medical, physical or mental condition), the applicant shall provide the information in a separate envelope clearly marked "CONFIDENTIAL INFORMATION IN SUPPORT OF REQUEST FOR REASONABLE ACCOMMODATION." By signing the application, the applicant consents to the city's communication to neighboring property owners, and to the general public upon request, information deemed by the Director to be necessary to describe the physical changes to the subject property that are requested by the applicant, or approved by the city.
B. 
Application—Contents. The application shall include the following information:
1. 
The applicant's name, address and telephone number;
2. 
Address of the property for which the request is being made;
3. 
The name and address of the property owner, and the owner's written consent to the application;
4. 
The current actual use of the property;
5. 
The basis for the claim that the individual is considered disabled under the Fair Housing Laws: identification and description of the disability which is the basis for the request for accommodation, including current, written medical certification and description of disability and its effects on the person's medical, physical or mental limitations from an appropriate health care or rehabilitation professional;
6. 
The rule, policy, practice and/or procedure of the city for which the request for accommodation is being made, including the zoning code regulation from which reasonable accommodation is being requested;
7. 
The type of accommodation sought;
8. 
The reason(s) why the accommodation is reasonable and necessary for the needs of the disabled person(s). Where appropriate, include a summary of any potential means and alternatives considered in evaluating the need for the accommodation;
9. 
Copies of memoranda, correspondence, pictures, plans or background information reasonably necessary to reach a decision regarding the need for the accommodation;
10. 
If, as a direct result of his or her disability, the applicant cannot afford to pay otherwise applicable building, permitting, inspection, planning or any other city fees associated with the application, a brief description of the financial circumstances that prevent the payment of such fees, and a written request for fee waiver; and
11. 
Other supportive information deemed necessary by the Planning Division to facilitate proper consideration of the request, consistent with Fair Housing Laws.
C. 
Review with Other Land Use Applications. If the project for which the reasonable accommodation is being requested also requires some other discretionary approval (such as conditional use permit, design review permit, General Plan amendment, zoning amendment, subdivision map), then the applicant shall submit the reasonable accommodation application first for a determination by the Director, before proceeding with the other applications.
D. 
Fee. A fee for an application for reasonable accommodation may be established by resolution of the City Council.
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A. 
Approval Authority. The Director has the authority to review and decide upon requests for reasonable accommodation, including whether the applicant is a disabled person within the meaning of this chapter.
B. 
Notice. Once the application is complete, the Director shall provide written notice to residents and property owners abutting the property, providing basic information about the requested accommodation. The notice shall provide the opportunity for submitting written comments to the Director by a date certain. No public hearing is required for consideration of reasonable accommodation requests by the Director.
C. 
Decision. The Director shall render a decision promptly after the application is complete, and shall approve, approve with conditions or deny the application, based on the findings set forth in Section 17.65.060. If the Director does not render a decision within 45 days after the application is complete, the application shall be deemed denied unless the Director and the applicant mutually agree in writing to extend the time for processing the application. The decision shall be in writing and mailed to the applicant and to all residents and property owners abutting the project site. (An abbreviated form of the decision may be sent to residents and property owners to protect the privacy of the applicant.)
D. 
Appeal. Any person aggrieved by a determination of the Director pursuant to this section may appeal in accordance with the provisions of Chapter 1.26. Failure to timely request an administrative hearing, and/or to fully state all factual and legal grounds for the appeal, in the manner required by Chapter 1.26, shall constitute a waiver of the hearing and a failure to exhaust administrative remedies, and shall preclude any and all relief and claims arising in connection with the determination by the Director.
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A. 
Findings. The Director is authorized to decide to approve the application, with or without conditions, only to the extent the Director makes the following findings, based on substantial evidence:
1. 
The subject property will be used by a disabled person;
2. 
The requested accommodation is necessary to make the subject property available to a disabled person;
3. 
The requested accommodation would not impose an undue financial or administrative burden on the city; and
4. 
The requested accommodation would not require a fundamental alteration in the nature of a city program or law, including land use and zoning.
B. 
Other Requirements.
1. 
An approved request for reasonable accommodation is subject to the applicant's compliance with all other applicable zoning regulations.
2. 
A modification approved under this chapter is considered a personal accommodation for the individual applicant and does not run with the land.
3. 
Where appropriate, the Director may condition his or her approval on any or all of the following:
a. 
Inspection of the property periodically, as specified, to verify compliance with this section and any conditions of approval;
b. 
Removal of the improvements when the need for which the accommodation was granted no longer exists;
c. 
Time limits and/or expiration of the approval when the need for which the accommodation was granted no longer exists;
d. 
Recordation of a deed restriction requiring removal of the accommodating feature once the need for it no longer exists;
e. 
Measures to reduce the impact on surrounding uses;
f. 
Measures in consideration of the physical attributes of the property and structures;
g. 
Other reasonable accommodations that may provide an equivalent level of benefit and/or that will not result in an encroachment into required setbacks, exceedance of maximum height, lot coverage or floor area ratio requirements specified for the zone district; and
h. 
Other conditions necessary to protect the public health, safety and welfare.
(O2010 17, 10/19/10)