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HomeMy WebLinkAbout26. Request to Hold Public Hearing/Adult Home/Quail CourtCarl Glowcheski 2910 Quail Ct. Oshkosh, WI 54904 May 30, 2014 City of Oshkosh Common Council 215 Church Ave. P.O. Box 1130 Oshkosh, WI 54903 -1130 Dear Council Members, The purpose of this letter is to request your review under Wis. Stat. 62.23(7)(1)(9) which states: Not less than 11 months nor more than 13 months after the first licensure of an adult family home under s. 50.033 or of a community living arrangement and every year thereafter, the common council of a city in which a licensed adult family home or a community living arrangement is located may make a determination as to the effect of the adult family home or community living arrangement on the health, safety or welfare of the residents of the city. The determination shall be made according to the procedures provided under subd. 10. If the common council determines that the existence in the city of a licensed adult family home or a community living arrangement poses a threat to the health, safety or welfare of the residents of the city, the common council may order the adult family home or community living arrangement to cease operation unless special zoning permission is obtained. The order is subject to judicial review under s. 68.13, except that a free copy of the transcript may not be provided to the adult family home or community living arrangement. The adult family home or community living arrangement must cease operation within 90 days after the date of the order, or the date of final judicial review of the order, or the date of the denial of special zoning permission, whichever is later. The adult family home in question is located at 2920 Quail Ct. and was licensed on June 27, 2013. I welcome the opportunity to meet with you to address any questions you may have. Thank you and I look forward to hearing from you. Sincerely, Carl Glowcheski cc: Alfred Johnson Director, Bureau of Assisted Living Wisconsin Department of Health Services MAY 3 2014 C.1 i % CLERK's OFFICE CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, 54903 -1130 City of Oshkosh TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: June 5, 2014 RE: Request for Review of Adult Family Home located at 2920 Quail Court under Wis. Stat. 62.23(7)(i)(9) Executive Summary • The Council has received a request from Mr. Carl Glowcheski, 2910 Quail Court, Oshkosh, Wisconsin, for review of an adult family home located next door to Mr. Glowcheski's home at 2920 Quail Court in the City of Oshkosh. • Section 62.23(7)(i)(9) of the Wisconsin Statutes allows, but does not require, a common council to hold a hearing to determine whether a community living arrangement, such as an adult family home, poses a threat to the public health, safety or welfare. • State and federal law require substantial proof of a threat to the public health, safety and welfare in order to require local zoning approval for the facility. • The request raises no issues and provides no facts from which the council could make a reasonable determination that the facility located at 2920 Quail Court poses a threat to the public health, safety or welfare. • Staff recommends that the Council deny the request for hearing. Background The Council has received a request from Mr. Carl Glowcheski, 2910 Quail Court, Oshkosh, Wisconsin, for review under the provisions of sec. 62.23(7)(i)(9) Wis. Stats. of an adult family home located next door to Mr. Glowcheski's home at 2920 Quail Court in the City of Oshkosh. Section 62.23(7)(i)(9) of the Wisconsin Statutes provides that not less than 11 months nor more than 13 months after the first licensure of an adult family home and every year thereafter, the Common Council may make a determination as to the effect of an adult family home on the health, safety or welfare of the residents of the City. The request in this case indicates that the adult family home on Quail Court was first licensed on June 27, 2013. A review by the Council at this time would be timely under the statute. However, the request provides no details regarding the reasons for the request and no information raising issues as to the health, safety or welfare of the residents of the City. Prior to filing this complaint, Mr. Glowchewski raised issues with various city staff related to parking of vehicles, traffic, licensing issues and whether the operation of this adult family home in a residential neighborhood complies with city zoning ordinances. The Police Department, Fire Department and Department of Community Development have all reviewed the request and have not identified any significant issues relative to this particular property. The only issue before the Council at this time is whether to hold a hearing pursuant to the provisions of section 62.23(7)(i)(9) pertaining to the threat of the adult family home to the health, safety and welfare of the residents of the city. The Department of Community Development has reviewed the complaints relative to the appropriateness of locating this facility in relation to the requirements of the state statutes and local zoning ordinances and determined that the facility is in compliance. Previous issues raised by the requestor related to potential licensing issues have been referred to the appropriate state agency for review and are not within the authority of the City to review or take action upon. Section 62.23 Wisconsin Statutes Community and other Living Arrangements Community Living Arrangements are permitted in any Residential Zone — Hearing Procedures Wisconsin Statutes section 62.23(7)(i) regulates community and other living arrangements. Subsection(2r)(b) provides that a licensed adult family home is permitted in any residential zone without receiving special zoning permission from the local government. State statute allows local governments only limited control over these types of property uses. Local control is limited to holding a public hearing not less than 11 months, nor more than 13 months after the first licensure of the adult family home, and every year thereafter so that the local government can make a determination as to the effect of the adult family home on the health, safety, or welfare of the residents of the city. In order to make such a determination, the Council must hold a hearing and must provide at least 30 days notice to the adult family home that a hearing will be held. Notably, the statute does not require hearings to be held. The statute clearly states that a Council may hold a hearing (emphasis added). Unlike other statutes, such as the statute governing suspension or revocation of liquor licenses or the statute pertaining to hearings before the police and fire commission, this statute does not provide for the 2 initiation of a hearing by complaint of an individual. The statute is completely permissive, allowing a council to determine whether and in what circumstances it may choose to hear or initiate a hearing. The statute sets forth some basic requirements pertaining to a hearing under this subsection which are detailed in the following paragraphs, however, the statute is also notably vague with regard to specific details and procedure. In areas not addressed by the statute, the Council is free to establish reasonable rules for the conduct of a hearing to be held before it. If a hearing is held, the Common Council may call witnesses and subpoena persons to testify before it. The adult family home may be represented by counsel and may present evidence and call and examine witnesses and cross - examine other witnesses called. The council is required to take notes of testimony and mark and preserve exhibits. The council may, and shall upon the request of the adult family home, cause the proceedings to be recorded by a stenographer or recording device. Within 20 days after the hearing, the council is required to mail or deliver to the licensed adult family home a written determination including the reasons for its final determination. Determinations are then subject to judicial review. If a common council determines that a licensed adult family home poses a threat to the health, safety and welfare of the residents of the city, the council may order the adult family home to cease operation unless special zoning permission is obtained. If such an order is issued, then adult family home must cease operation within 90 days. Background pertaining to State and Federal Laws and Regulations relating to Disabled Persons State and Federal Legislation — Section 62.23(7)(i) Wis. Stats; FHAA and ADA It may be helpful first to review some general background related to state and federal legislation and policies pertaining to treatment of disabled persons. In 1977, the State of Wisconsin enacted section 62.23(7)(i) limiting the power of municipalities to regulate through zoning these types of facilities and providing that municipalities must allow small groups of unrelated, disabled persons to live together in single family homes in residential neighborhoods without requiring them to seek special zoning permission unless the proposed home is within 2500 feet of a similar already existing home. The legislature when passing this legislation specifically found that these housing arrangements resemble families in all senses of the word except for the fact that the residents may not be related. The 2500 foot rule appears to have been intended to preserve the residential character of the neighborhoods for the benefit of the disabled, to ensure that they are given the same opportunities as others to live in residential areas as opposed to institutional types of settings, and not for the benefit of the surrounding neighbors. C In 1988, the federal government enacted the Fair Housing Act Amendments (FHAA) to prohibit discrimination in the sale, rental or otherwise making available dwellings for individuals because of a handicap, including a prohibition on the refusal to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford such persons equal opportunity to enjoy a dwelling. Congress was explicit in its intention that the FHAA apply to zoning ordinances and other local land use and health and safety laws, regulations, practices and decisions which may discriminate against individuals with handicaps. In 1990, the federal government enacted the Americans with Disabilities Act (ADA) which prohibited a public entity from discriminating against an individual on the basis of a disability or from excluding an individual from public services, programs or activities on the basis of a disability. The ADA, similar to the FHAA, also includes requirements to make reasonable accommodations for individuals with disabilities to allow those persons to enjoy the same opportunities, services and benefits as those who are not disabled. In the 1990's, the State of Wisconsin developed a plan to transfer disabled persons who could live within the community out of larger institutions and into single family homes. The State requires that individuals be placed within the least restrictive environment suitable for their particular needs. Court Decisions Reviewing Determinations of Local Governing Bodies Preemption / the Duty to Reasonably Accommodate / Licensing Matter to be addressed to the Licensing Authority More specifically in relation to regulation of group homes by municipalities, in 1998, the Eastern District Court for Wisconsin, ruled on a case challenging the 2500 foot rule contained within the Wisconsin Statute. The Court found the rule was preempted by both the FHAA and the ADA on the basis that the rule classified persons on the basis of a disability and substantially limited meaningful access to housing for the disabled. The court found that the FHAA and ADA required reasonable accommodations to be made and that the plaintiffs had met their burden of showing the accommodations that they requested were reasonable, necessary and that without the accommodations they would be denied the equal opportunity to live in single family neighborhoods in their community. Balancing the interests of the disabled persons to have an equal opportunity to live within a residential neighborhood with the detriment to the community, the court found that the worries raised related to traffic congestion and increased police calls in that case were largely speculative and found no substantial 4 detriment to the community. The court also noted that many of the issues raised in that case related to licensing matters which should be addressed to the licensing authority. The Duty to Reasonably Accommodate In 2002, the United States Court of Appeals for the 7th Circuit, which includes the State of Wisconsin, took up issues related to a facility for those with brain injuries in Milwaukee in the case of ORP v. Milwaukee. The City argued that the ORP facility violated the 2500 foot rule set forth in section 62.23(7)(i) of the Wisconsin Statutes, that there were flooding concerns related to the facility which may place the inhabitants at risk, that the location of the facility in this residential neighborhood would increase traffic volumes and present danger to the inhabitants and the public at large from the lack of sidewalks in the neighborhood and the anticipated increased pedestrian traffic. Neighbors expressed concerns that the brain injured patients might become violent and threaten the safety of the neighborhood and also cited concerns related to traffic, parking, a lack of sidewalks and flooding. The neighbors also cited various licensing issues related to the operator of the facility. The Court in this case did not address the issue of whether the ADA and FHAA preempted the Wisconsin Statute, but decided the case on reasonable accommodation grounds. The Court noted that the ADA and FHAA required accommodation if the accommodation requested is reasonable and necessary to afford a handicapped person the equal opportunity to enjoy and use a dwelling. The Court concluded that an accommodation is reasonable if it is both efficacious and proportional to the costs to implement it. An accommodation is unreasonable if it imposes an undue financial or administrative burden or requires a fundamental alteration in the nature of a program. With regard to zoning, the Court noted that a zoning waiver would be unreasonable if it is so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change. The Court found that whether a requested accommodation is necessary requires a showing that the desired accommodation will affirmatively enhance a disabled persons quality of life by ameliorating the effects of the disability. In other words, the Court found that an accommodation is necessary if the plaintiff is able to show that without the required accommodation they would be denied the equal opportunity to live in a residential neighborhood. The Court concluded that the FHAA prohibits local governments from applying their land use regulations in such a manner that disabled persons are given less opportunity to live in certain neighborhoods than people without disabilities. The court determined that when a local government refuses to reasonably accommodate these small group living arrangements, the local government denies disabled persons an equal opportunity to live in the community of their choice. 5 Licensing Issues not within Local Authority As to the claims of abuse and licensing issues related to the operator, the 7t" Circuit Court in ORP found that while claims of this nature are troubling, the state licensing authority has the burden of assuring the safety and security of group home residents through its licensing authority and inquiries pertaining to issues of this type are properly directed to that entity. Stereotypes and Unfounded Speculation are Prohibited Finally as to issues of traffic and police calls, the court found no evidence to support the issues raised within the record before it. The Court found that a denial of a variance due to public safety concerns or concerns for the safety of resident of the facility themselves cannot be based upon blanket stereotypes about disabled persons. Concerns must be particularized concerns about individual residents. The Court in strong terms noted that the FHAA repudiates the use of stereotypes and ignorance and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculation about threats to safety were specifically rejected as grounds to justify exclusion of the facility from the neighborhood. The mere fact that the residents of the proposed home may at times require the assistance of local police or other emergency services was not found to rise to the level of imposing a cognizable administrative and financial burden on the community. Analysis As noted above, the statute governing the type of hearing requested is entirely discretionary. The Council must initially determine whether to hold a hearing. If a hearing is held, the Council must also determine the basic format and rules for such a hearing. Should the Council determine to hold a hearing in this matter, the issue before the Council will be whether the adult family home poses a threat to the health, safety or welfare of the residents of the city. The requestor has to date failed to provide any information in support of his request for a hearing to the Council and more specifically has not raised any issues tending to show a threat to the public health, safety or welfare. City staff has not identified any issues raising concerns related to a threat to the public health, safety or welfare. As the background information provided above indicates, when reviewing municipal regulation or zoning determinations pertaining to these types of facilities for the disabled, courts require substantial proof of specific threats to the public health, safety, or welfare in these situations and the City is required to consider whether reasonable R accommodations are necessary or appropriate in these types of situations. In this case, Mr. Glowcheski fails to specifically identify any facts in his request for a review of this adult family facility and city staff has not identified any issues or concerns upon which the Council may reasonably find a threat to the public health, safety or welfare. It appears highly unlikely that the Council would find sufficient grounds to meet the substantial burden to find a threat to the public health, safety or welfare in this particular circumstance and a hearing on this matter would appear to be unnecessary. Recommendation Because there are no substantial issues indicating any reasonable basis upon which to make a finding of a potential threat to the public's health, safety and welfare, staff recommends that the Council deny the request for hearing. Respectfully Submitted, 7 Approved: Mark A. Rohloff City Manager