A. Residential Facilities For Elderly Persons: A residential facility for elderly persons is a permitted use in any area where residential dwellings are allowed, except an area zoned to permit exclusively single-family dwellings.
1. To operate a residential facility for elderly persons under this section, a permit must first be obtained by the owner, or operator of the facility. To obtain a permit the applicant must establish to the satisfaction of the planning commission that:
a. The facility meets all applicable building, safety, zoning, and health ordinances applicable to similar dwellings;
b. Adequate off street parking space is provided;
c. The facility is capable of use as a residential facility for elderly persons without structural or landscaping alterations that would change the structure's residential character;
d. No residential facility for elderly persons may be established within three-fourths (3/4) mile of another residential facility for elderly persons or residential facility for handicapped persons, as defined by Utah Code Annotated;
e. No person being treated for alcoholism or drug abuse will be placed in a residential facility for elderly persons; and
f. Placement in a residential facility for elderly persons will be on a strictly voluntary basis and not a part of or in lieu of, confinement, rehabilitation, or treatment in a correctional facility.
2. Upon review of an application for a permit to establish a residential facility for elderly persons in any area where residential dwellings are allowed, except an area zoned to permit exclusively single-family dwellings, if the city determines that the residential facility for elderly persons complied with the preceding conditions, it shall grant the requested permit to that facility.
3. The use granted and permitted by this section is nontransferable and terminates if the structure is devoted to a use other than a residential facility for elderly persons or if the structure fails to comply with the conditions contained herein.
4. For purposes of this section no person who is being treated for alcoholism or drug abuse may be placed in a residential facility for elderly persons; and, placement in a residential facility for elderly persons shall be on a strictly voluntary basis and may not be a part of, or in lieu of, confinement, rehabilitation, or treatment in a correctional institution.
a. Subject to the granting of a conditional use permit, a residential facility for elderly persons shall be allowed in any municipal zoning district that is zoned to permit exclusively single-family dwelling use, if that facility:
(1) Conforms to all applicable health, safety, zoning, and building codes.
(2) Is capable of use as a residential facility for elderly persons without structural or landscaping alterations that would change the structure's residential character; and
(3) Conforms to the municipality's criteria, adopted by ordinance, governing the location of residential facilities for elderly persons in area zoned to permit exclusively single-family dwellings.
b. No residential facility for elderly persons may be established within three-fourths (3/4) mile of another existing residential facility for elderly persons or residential facility for handicapped persons, as defined by Utah Code Annotated.
c. The use granted and permitted by this section is nontransferable and terminates if the structure is devoted to a use other than as a residential facility for elderly persons or if the structure fails to comply with applicable health, safety, and building codes.
5. It shall be unlawful to discriminate against elderly persons and against residential facilities for elderly persons. The decision of a municipality regarding the application for a permit by a residential facility for elderly persons must be based on legitimate land use criteria and may not be based on the age of the facility's residents.
6. The requirements of this section that a residential facility for elderly persons obtain a conditional use permit or other permit do not apply if the facility meets the requirements of existing zoning ordinances that allow a specified number of unrelated persons to live together. (Ord. 2002-05, 3-20-2002)
B. Residential Facilities For Persons With A Disability:
1. Purpose And Policy:
a. The purpose of this subsection is to:
(1) Comply with Utah Code Annotated section 10-9a-520;
(2) Provide clear direction to citizens and applicants regarding the necessary requirements and procedure for establishing residential facilities for persons with a disability; and
(3) Establish an application process for locating residential facilities for persons with a disability in a residential community that both avoids discrimination against the disabled and protects the character and nature of the city's residential communities.
b. Pursuant to Utah Code Annotated section 10-9a-520(2)(a), this subsection is intended to comply with the Utah fair housing act of title 57, chapter 21 and the federal fair housing amendments act of 1988, 42 USC, section 3601 et seq.
2. Definitions: For purposes of this regulation, the following definitions shall apply:
DISABILITY: A physical or mental impairment that substantially limits one or more of a person's major life activities, including a person having a record of such an impairment or being regarded as having such an impairment.
a. "Physical or mental impairment" includes:
(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, human immunodeficiency virus infection, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.
b. "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
Disability does not include current illegal use of, or addiction to, any federally controlled substance, as defined in section 102 of the controlled substances act, 21 USC 802.
RESIDENTIAL FACILITIES FOR PERSONS WITH A DISABILITY: A twenty four (24) hour group living environment with one or more individuals unrelated to the owner or provider that offers room or board and specialized treatment, behavior modification, rehabilitation, discipline, emotional growth, and/or habilitation services for persons with emotional, psychological, developmental, or behavioral dysfunctions, impairments, or chemical dependencies, and that is licensed or certified by the department of human services under title 62A, chapter 2, licensure of programs and facilities, or is licensed or certified by the department of health under title 26, chapter 21, health care facility licensing and inspection act. Residential treatment does not include a boarding school or foster home.
3. State Regulation Of Residential Facilities:
a. Prior to commencing operation, all applicants and operators of residential facilities for persons with a disability shall obtain a license from the department of health under title 26, chapter 21 ("health care facility licensing and inspection act") and/or the department of human services under title 62A, chapter 2 ("licensure of programs and facilities"), as is appropriate and required for the nature of the facility's operations and services.
b. All residential facilities for persons with a disability shall maintain a current license from the department of health and/or the department of human services as a condition for their continued operation.
4. Municipal Approval Process For Residential Facilities:
a. Permitted Use: A residential facility for persons with a disability is a permitted use in any zone where similar residential dwellings that are not residential facilities for persons with a disability are allowed.
b. Recommendation; Approval: Prior to commencing the maintenance or operations of a residential facility for persons with a disability, the owner/operator of such a facility must first obtain a recommendation from the planning commission and final approval from the city council. In order to obtain such approval, the owner/operator of the facility must establish that:
(1) The facility complies with existing zoning regulation for the desired location, including:
(A) Compliance with building, safety, and health regulations applicable to similar structures permitted within the zone, including obtaining permits relating thereto;
(B) Compliance with site development standards including parking, traffic, landscape, utility use, and other standards applicable to similar structures permitted within the zone without structural or landscape alterations that would fundamentally change the structure's residential character and/or nature; and
(C) Compliance with zoning requirements limiting the maximum number of unrelated occupants that are applicable to similar structures permitted within the zone.
(2) The facility has obtained and maintains appropriate state agency licensure for the facility, as provided herein;
(3) Placement of disabled individuals in the facility shall be on a strictly voluntary basis and a part of, or in lieu of, confinement, rehabilitation, or treatment in a correctional facility; (Ord. 2012-01, 2-21-2012, eff. 3-18-2012)
(4) No individual shall be admitted to the facility as a resident who is a convicted sex offender, has been convicted of selling or manufacturing illegal drugs, is currently using drugs or alcohol, and/or who is a direct threat to the health and safety of other individuals and/or of causing substantial physical damage to the property of others. In determining whether proposed residents are likely to represent a direct threat as outlined above, the planning commission and city council shall consider, on the basis of objective evidence: (Ord. 2016-07, 11-2-2016, eff. 11-27-2016)
(A) The nature, duration, and severity of the risk;
(B) The probability that potential injury will actually occur; and
(C) Whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk; and
(5) The residential facility will not fundamentally alter the character and nature of the subject residential neighborhood.
c. Granting Permit: If the city council determines that the residential facility for persons with a disability is in compliance with these requirements, the city shall grant the requested permit to that facility.
d. Use Nontransferable: The use granted and permitted by this subsection is nontransferable and terminates upon:
(1) Transfer of the ownership of the facility;
(2) Any use other than that approved by the city council in the process outlined above; and/or
(3) Failure of the structure, its management, and/or any of its residents to comply with any aspect or provision of this subsection.
e. Denial Of Permit: If the city council determines that the residential facility for persons with a disability is not in compliance with these requirements, the city shall deny the requested permit to that facility, and the city council shall provide a written explanation outlining the bases for the denial. Any decision of the city council may be appealed to the district courts within thirty (30) days of the council's written decision.
5. Reasonable Accommodation And Related Procedure:
a. Interpretation: None of the requirements in the municipal approval process outlined above shall be interpreted to limit any reasonable accommodation necessary to allow the establishment or occupancy of a residential facility for persons with a disability.
b. Written Request: Any person or entity who wishes to request a reasonable accommodation shall make a written request for the same to the planning commission for recommendations and city council for final approval. Within such a request:
(1) The applicant shall identify the ordinance or regulation the applicant seeks to have waived or modified;
(2) The applicant shall identify the nature of the disability requiring accommodation;
(3) The applicant shall describe the nature of the requested accommodation;
(4) The applicant shall describe why the accommodation is necessary to afford the disabled an equal opportunity to use and enjoy residential housing;
(5) The applicant shall describe what impact, if any, the applicant perceives that the requested accommodation shall have on the existing neighborhood and whether the requested accommodation is consistent with the character and nature of the neighborhood; and
(6) The applicant shall identify any burden or expense the accommodation would impose on the city.
c. Reasonable And Necessary Accommodation: The planning commission and city council shall make a reasonable accommodation to any aspect of the municipal approval process outlined above where it receives a written request for accommodation and the city council determines that such an accommodation is reasonable and necessary in order that a disabled individual may have an equal opportunity to use and enjoy residential housing.
(1) In considering whether a proposed accommodation is reasonable and necessary, the planning commission and city council shall:
(A) Consider the impact of the requested accommodation on the neighborhood in light of existing zoning and use, including any impact on neighborhood parking, traffic, noise, utility use, safety, and other similar concerns, and whether any such impact fundamentally alters the character and/or nature of the neighborhood and/or existing zoning regulations;
(B) Consider whether, based on objective evidence and on an individualized basis, a particular accommodation would pose a direct threat to the health or safety of other individuals and/or would result in substantial physical damage to the property of others. In determining the likelihood of direct threat or substantial damage, the planning commission shall consider:
(i) The nature, duration, and severity of the risk;
(ii) The probability that the potential injury will actually occur; and
(iii) Whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk; and
(C) Consider whether granting the accommodation would impose any significant or undue expense and/or administrative burden on the city.
(2) The city council shall draft a written opinion letter explaining its findings, indicating whether the requested accommodation is granted and detailing any related conditions that may be imposed therewith.
d. Appeals Process: Any party that requests a reasonable accommodation that is denied by the City Council may appeal to the District Courts within thirty (30) days of the Council's written decision. (Ord. 2012-01, 2-21-2012, eff. 3-18-2012)