(a) Purpose. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability as provided in N.C.G.S. §160D-705(d). This section provides a procedure for making requests for reasonable accommodations in land use, zoning and building regulations, policies, practices and procedures for the City of Asheville to comply fully with the intent and purpose of federal laws.
Nothing in this section requires persons with disabilities or handicaps, or operators of family care homes or group homes for persons with disabilities or handicaps acting or operating in accordance with applicable zoning, licensing or land use laws or practices, to seek reasonable accommodation under this section.
(b) Eligible applicants.
(1) This section is intended to apply to those persons who are defined as disabled or handicapped under federal law. A person recovering from substance abuse is considered a person with a disability or handicap; however, a person who is currently engaging in the illegal use of controlled substances is not.
(2) A request for a reasonable accommodation may be made by any person with a disability or handicap, his or her legal representative, or a provider of housing for persons with disabilities or handicaps in the city's land use and zoning regulations, policies, or practices when the application of such may act as a barrier to affording such person[s] equal opportunity to use and enjoy a dwelling in accordance with the law.
(c) Eligible requests.
(1) A request for a reasonable accommodation may include a modification or exception to the rules, standards and/or practices for the siting, development, and use of housing or housing-related facilities in this Unified Development Ordinance, that would eliminate regulatory barriers and provide a person with a disability or handicap an equal opportunity to a dwelling of his or her choice.
(d) Applications.
(1) The City of Asheville's Development Services Department shall provide applicants for a reasonable accommodation with an application form, eliciting the following information:
a. The applicant's name, address and telephone number;
b. Name, address, and telephone number of the property owner and the current address for which the request is being made;
c. The current actual use of the property;
d. The basis for the claim that the applicant is considered disabled or handicapped under federal law;
e. The UDO provision, regulation or policy from which reasonable accommodation is being requested;
f. Explanation of why the reasonable accommodation is necessary to make specific property available for the individual.
(2) If an individual needs assistance in making the request for reasonable accommodation, the city will provide assistance to ensure that the process is accessible.
(3) A reasonable accommodation shall not affect an individual's obligations to comply with other applicable regulations not at issue in the requested accommodation.
(4) Any information which relates to the applicant's disability or handicap and is identified by the applicant as confidential shall be retained in a manner so as to respect the privacy rights of the applicant and shall not be made available for public inspection.
(5) An application for a reasonable accommodation under this section shall be submitted to the city clerk who will forward copies of the request to the director of development services. No filing fee shall be required for such application.
(e) Application review.
(1) Review authority. A request for a reasonable accommodation shall be reviewed, and a determination shall be made, by the board of adjustment.
(2) Action and procedures of the board of adjustment.
a. Upon receiving a complete application, the board of adjustment shall hold a quasi-judicial hearing on the proposed reasonable accommodation within 60 days, unless this requirement is waived by the applicant. Notice of the hearing shall be provided in accordance with the provisions of section 7-5-20 of this chapter. The hearing shall be conducted in accordance with the rules of procedure of the board of adjustment and in accordance with the North Carolina General Statutes.
b. In considering the application, the board of adjustment shall review the application materials, the standards set forth in this section, and all testimony and evidence received by the board of adjustment at the quasi-judicial hearing.
c. After conducting the hearing, the board of adjustment may:
i. Grant the application. The concurring vote of four-fifths of the board of adjustment shall be necessary to grant a reasonable accommodation; or
ii. Deny the application. Any approval or denial of the request shall be accompanied by written findings of fact and conclusions of law determining that the request for reasonable accommodation meets or does not meet each of the standards set forth in subsection (e)(3) below. The written decision shall be signed by the chair or other duly authorized member of the board. The decision is effective upon filing the written decision with the secretary to the board.
(3) Standard of review. The board of adjustment shall grant an exception or modification to any provision of this section as a reasonable accommodation under federal law if the board finds, based on the competent, material and substantial evidence, that the proposed accommodation:
a. Will be used by an individual or individuals with a disability or handicap protected under federal law;
b. Is "reasonable." An accommodation will be determined to be reasonable if it would not undermine the legitimate purposes and effects of existing zoning regulations, and if it will not impose significant financial and administrative burdens upon the city and/or constitute a substantial or fundamental alteration of the city's ordinance provisions; and
c. Is "necessary." An accommodation will be determined to be necessary if it would provide direct or meaningful therapeutic amelioration of the effects of the particular disability or handicap, and would afford handicapped or disabled persons equal opportunity to enjoy and use housing in residential districts in the city.
(4) Decision. The board of adjustment shall issue a written decision on a request for reasonable accommodation within 60 days of the date of the quasi-judicial hearing.
(5) Appeals. Any appeal from the decision of the board of adjustment may be made by an aggrieved party and shall be made to the Superior Court of Buncombe County in the nature of certiorari in accordance with the procedures and requirements set forth in N.C.G.S. § 160D-1402.
(Ord. No. 4403, § 1c, 4-14-15; Ord. No. 4381, § 1(R)—(W), 6-8-21)