Okla. Admin. Code § 120:10-5-25

Current through Vol. 42, No. 4, November 1, 2024

Section 120:10-5-25 - Reasonable accommodation permit

(a)Purpose. The purpose of this section is to provide a process to allow a conditional use, through a reasonable accommodation permit (" RAP" ), by which a halfway house owner or operator may seek from the Commission an accommodation; or, exception to the Commission's rules, policies, practices, or services when such accommodation may be necessary to afford disabled persons an equal opportunity to use and enjoy a dwelling. A reasonable accommodation may be approved only for the benefit of one or more individuals with a disability as defined in The Americans with Disabilities Act. Any person who owns, manages, or operates a halfway house for disabled persons and seeks to operate such a facility in a residential district or in an area where residential uses are provided for in specific Master Plan districts, shall obtain a RAP from the Commission. No person shall operate a halfway house without first having obtained such a permit.

(b)Application contents. An application for a RAP in a residential district or in an area where residential uses are provided for in specific plan districts shall be in writing on forms provided by the Commission. The applicant shall show the location and intended use of the site, the names of all property owners, the existing land uses within 300 feet, and any other materials pertinent to the request the Commission may require.

(c)Notice and public hearing. The Commission shall hold one or more public hearings on the application. The Commission shall mail written notice to the applicant and affected property owners at least 10 days prior to the hearing. The contents of the written notice of public hearing shall contain:

(1) a description of the location of the project site and the purpose of the hearing;

(2) a statement of the time, place and purpose of the public hearing; and,

(3) a statement that any interested person or authorized agent may appear and be heard.

(d)Public hearing. The Commission shall hear testimony of Commission staff and the applicant, if present. At a public hearing, the testimony of any other interested person shall also be heard. A public hearing may be continued without additional notice.

(e)Criteria. The Commission shall consider the following criteria before approving or conditionally approving an application for a RAP in a residential district or in an area where residential uses are provided for in specific Master Plan districts. The Commission shall determine:

(1) if the requested accommodation would require a fundamental alteration in the nature of the Commission's zoning program;

(2) if the use will be compatible with the character of the surrounding neighborhood; and,

(3) if the addition or continued maintenance of the use will not contribute to changing the residential character of the neighborhood, such as creating an over-concentration of halfway houses in the vicinity of the proposed use.

(f)Alternative accommodations. Upon review of the criteria required in (e) of this section, the Commission may approve alternative reasonable accommodations which provide an equivalent level of benefit to the applicant, when:

(1) The requested accommodation is requested by or on behalf of one or more individuals with a disability protected under the fair housing laws.

(2) The requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling.

(3) The absence of the accommodation may deny the individual or individuals with a disability an equal opportunity to enjoy the housing type of their choice.

(4) The requested accommodation will not result in a fundamental alteration in the nature of the Commission's zoning program, as "fundamental alteration" is defined in fair housing laws and interpretive case law.

(5) The requested accommodation will not, under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others.

(6) In the case of a halfway house, whether the existing supply of facilities of a similar nature and operation in the community is sufficient to provide individuals with a disability an equal opportunity to live in a residential setting.

(g)Fundamental alteration of zoning program. The Commission shall have forty-five (45) days from receipt of an application for a RAP to conduct its investigation to assist the Commission in making the determination whether the requested RAP would require a fundamental alteration in the nature of the Commission's zoning program. The Commission may consider, but is not limited to, the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the Commission's zoning program:

(1) Whether granting the requested accommodation would substantially undermine any express purpose of the Commission's Master Plan.

(2) Whether the use conforms to all applicable provisions of the Commission's statutes, rules, and regulations.

(3) Whether the property and existing structures are physically suited to accommodate the use.

(4) Whether the requested accommodation would fundamentally alter the character of the neighborhood.

(5) Whether the use will be compatible with the character of the surrounding neighborhood, and the addition or continued maintenance of the use will not contribute to changing the residential character of the neighborhood, such as creating an overconcentration of halfway houses in the vicinity of the proposed use.

(6) The existence of substandard physical characteristics of the area in which the use is located such as lot widths, setbacks, narrow streets, limited available parking, short blocks, and other substandard characteristics which may occur within the District.

(7) Whether arrangements for delivery of goods are made within the hours that are compatible with and will not adversely affect the peace and quiet of neighboring properties.

(8) Whether arrangements for commercial trash collection in excess of usual residential collection are made within hours that are compatible with and will not adversely affect the peace and quiet of neighboring properties.

(9) Whether the accommodation would result in a substantial increase in traffic or insufficient parking.

(10) Whether the facility includes sufficient on-site parking for the use, and traffic and transportation impacts have been mitigated to a level of insignificance.

(11) Whether the operation of buses and vans to transport residents to and from off-site activities does not generate vehicular traffic substantially greater than that normally generated by residential activities in the surrounding area.

(12) The proximity of the use location to schools, child care facilities, parks, other halfway houses, outlets for alcoholic beverages and any other uses which could be affected by or affect the operation of the subject use;

(13) In the case of a halfway house, whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation.

(h)Operational Standards.

(1) The property shall be operated in compliance with the Commission's rules and regulations and all applicable state and local laws, in addition to the management and operating plan and rules of conduct submitted as part of the RAP application or, as set forth in the conditions of approval for the RAP. All buildings shall be maintained in compliance with building maintenance and safety codes for residential property. Each plan shall provide a phone number where the operator can be contacted at all times.

(2) The following standards apply to uses granted a RAP pursuant to these rules:

(A) Halfway houses shall not be located within 1,000 feet measured from the property line, in the direction of any other existing halfway houses; however, the Commission shall retain the discretion to apply any degree of separation of uses which it deems appropriate in any given case.

(B) There shall be no more than two residents per bedroom, Any residence manager residing on the premises shall be provided with a separate bedroom or living quarters. the Commission has discretion to set occupancy limits based upon the evidence provided by the applicant that additional occupancy is appropriate at the site. In determining whether to set a different occupancy limit, the Commission shall consider the characteristics of the structure, whether there will be an impact on traffic and parking and whether the public health, safety, peace, comfort, or welfare of persons residing in the facility or adjacent to the facility will be affected.

(C) Any halfway house use shall only be carried out in the main dwelling. No servant's quarters, garage apartment or accessory living unit shall be used for housing residents in the program. However, accessory living units may be used to provide living quarters for a residence manager. The Commission shall retain the discretion to grant exceptions to this subparagraph upon application by a halfway house owner or operator.

(D) Only rooms designed and intended for use as sleeping quarter may be used to house residents in the halfway house. No room in the main dwelling shall be converted to increase occupancy for this use. Any room used for the purposes of sleeping quarters must meet HUD standards.

(i)Expiration, violation, discontinuance, and revocation of RAPs.

(1)Expiration. Any RAP approved in accordance with these rules shall expire within 24 months from the effective date of approval or at an alternative time specified as a condition of approval unless:

(A) A building permit has been issued and construction has commenced;

(B) A certificate of occupancy has been issued;

(C) The use is established; or,

(D) A time extension has been granted.

(2)Violation of Terms. Any RAP approved in accordance with these rules may be revoked if any of the conditions or terms of the reasonable accommodation are violated, or if any law or rule or regulation is violated in connection herewith.

(3)Discontinuance. A reasonable accommodation shall lapse if the exercise of rights granted by it is discontinued for 180 consecutive days.

(A) If the persons initially occupying a residence vacate, the reasonable accommodation shall remain in effect only if the Commission determines that:

(i) the modification is physically integrated into the residential structure and cannot easily be removed or altered to comply with the Zoning Code, and

(ii) the accommodation is necessary to give other disabled individuals an equal opportunity to enjoy the dwelling.

(B) The Commission may request the applicant or his or her successor-in-interest to the property to provide documentation that subsequent occupants are persons with disabilities. Failure to provide such documentation within 10 days of the date of the Commission's request shall constitute grounds for discontinuance by the Commission of a previously approved RAP.

(j)Revocation of RAPs.

(1)Duties of the Commission. Upon determination by the Commission that there are reasonable grounds for revocation of a RAP, a revocation hearing shall be set by the Commission.

(2)Notice and public hearing. Notice shall be given in the same manner required for a public hearing to consider approval. Notice shall be mailed to the applicant at least 10 days prior to the hearing.

(3)Contents of Notice. The notice of public hearing shall contain:

(A) A description of the location of the project site and the purpose of the hearing;

(B) A statement of the time, place, and purpose of the public hearing;

(C) A statement that any interested person or authorized agent may appear and be heard.

(4)Hearing. The Commission shall hear testimony of Commission staff and the applicant, if present. At a public hearing, the testimony of any other interested person shall also be heard. A public hearing may be continued without additional notice.

(5)Required findings. The Commission shall revoke the permit upon making one or more of the following findings:

(A) That the permit was issued on the basis of erroneous or misleading information or misrepresentation;

(B) That the applicant has made a false or misleading statement of a material fact or an omission of a material fact in the application for the permit.

(C) That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated;

(D) That there has been a discontinuance of the exercise or the entitlement granted by the permit for 180 consecutive days.

(6)Decision and notice. Within 10 days of the conclusion of the hearing, the Commission shall render a decision and shall mail notice of the decision to the applicant.

(7)Effective date. The decision to revoke a RAP shall become final 10 days after the date of the decision, unless appealed to the district court.

(8)Rights of appeal. Appeals to the district court shall be as prescribed by 73 O.S. § 83.9.

Okla. Admin. Code § 120:10-5-25

Added at 28 Ok Reg 2216, eff 7-25-11; Amended at 29 Ok Reg 1697, eff 7-26-12