Current through Vol. 42, No. 1, September 16, 2024
(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.
Added at 28 Ok Reg
2216, eff 7-25-11; Amended at 29 Ok Reg 1697, eff
7-26-12
