To: Honorable Mayor and Members of Town Council
From: Mary Shaw, Zoning Manager
Title
Discussion/Direction: Residential Care Facilities (Group Homes/Assisted Living Facilities in Residential Zoned Areas)
Body
_____________________________________________________________________
Purpose
To engage in discussion and to seek direction from Council related to residential care facilities (including group homes and assisted living facilities) within the Town’s residential zoned areas.
The issue for consideration is whether Council is desirous of adopting provisions in the Town’s Municipal Code that would more closely align with Colorado statute-related to spacing and occupancy of group homes in residential zoned areas designed for members of the population with mental and/or physical disabilities, or handicaps, and the elderly. The Town’s current Code references the necessity that such facilities adhere to state licensing and occupancy requirements. However, it is difficult to determine whether the State is enforcing its occupancy requirements, and to the extent applicable, licensing requirements, particularly related to spacing requirements.
Overview
For much of the twentieth century, people with disabilities were typically relegated to large publically operated institutions. More recently, differing points of view have arisen related to what could be characterized as a tension between efforts to maintain residential “community character,” as well as, alleged concerns related to decreases in property values, worries based on personal concerns, and the protection of property counterbalanced with arguments based on equal access to housing and that persons with disabilities/handicaps (generally mental, physical and the elderly) should be afforded equal opportunities for housing. Within the context of this discussion, this would include midsize to small group homes, including individualized living arrangements located in residential neighborhoods.
Key Issue
Town residents have voiced concerns about the potential negative impact to residential neighborhoods, and what they perceive to be the lack of oversight/regulations associated with residential care facilities whether “assisted living facilities” or “group homes.” (Attachment A, is a recent letter from Town residents). Citizens have asked for consideration of increased regulations including requiring:
• Residential care facilities to be the primary residence of the property owner and/or caregiver;
• Specific distancing or separation between group homes/assisted living facilities in residential neighborhoods;
• Written notice to property owners and residents within 300 feet for new proposed group home or assisted living facilities (and possibility of a hearing); and/or
• A public hearing with the Planning Commission and Town Council as a use by special review for all group home/assisted living facilities in residential zones within the Town.
Review Undertaken
Development Services staff worked closely with the Town Attorney’s office. Staff reviewed ordinances and codes from other municipalities. Staff also met with citizens, including two members of the Homeowners Association for Crystal Valley. Additionally, staff worked with the Town’s Finance department, and through the State of Colorado, to identify these types of facilities within the Town and to determine whether such facilities are properly licensed with the Town and the State. Finally, staff from the Police department completed a comprehensive review of calls for service (medical and criminal) within each block and greater radiuses around all such facilities known to the Town. (Attachment B, are portions of the data distilled by the Police department).
History of Past Town Council Boards & Commissions or Other Discussions
Before the Amendments were made in 2006, the Town Code:
• Required homes for physically and mentally handicapped individuals (including elderly assisted living facilities) to apply for a Use By Special Review; and
• Allowed an unlimited number of related individuals and up to five unrelated individuals to live together in a single-family dwelling-thereby treating non-protected classes differently than protected classes.
In 2006, Council approved and adopted amendments to the zoning code regarding the regulation of group homes. The amendments included:
• Revising the definition of family to include groups of disabled or handicapped individuals and foster children;
• Eliminating all definitions pertaining to protected classes; elderly assisted living facilities, limited group homes, and foster family care;
• Revising the definition of group home to eliminate physically and handicapped individuals; and
• Revising permitted uses within the R-1 zone district to eliminate references to foster family care, limited group homes, and elderly assisted living facilities.
Additionally, and more specifically, in 2006, the definition of family was broadened to include:
• A group of persons with a disability or handicap and associated resident staff, subject to the occupancy and licensing requirements of the State.
The 2006 amendment was intended to define disabled persons in terms more commonly accepted in federal law. The new definition also superseded the State mandated spacing requirements. The Code was also amended to define more intensive types of treatment for disabled persons who might constitute a direct threat to the health and safety of others as a Group Home.
Also considered in 2006 was an anti-clustering provision that would have limited the size of the facility if it was located within 300 feet of an existing licensed facility. At that time, the Planning Commission and Council declined to adopt an anti-clustering mechanism.
Although the intent for the new definition of family was to “encourage” the location of assisted living facilities in traditional residential settings, Town Code currently restricts assisted living/memory care as a use by special review in residential zoned areas (R-1, R-1A, R-2 and R-3 zones). (It is possible that staff overlooked amending/repealing this part of the Code when the definition of family was amended). Planned Development (PD) zoning regulations for residential planning areas throughout the Town are also inconsistent.
Current Relevant Code Provisions
17.14 - Definitions
Family is defined as one of the following:
a. One or more persons who are related by blood, marriage or adoption, including any foster children;
b. A group of not more than five unrelated persons living together as a single housekeeping unit by joint agreement on a nonprofit cost-sharing basis;
c. A combination of persons related by blood, marriage or adoption, including any foster children and unrelated adults, not to exceed five persons living together and occupying a single dwelling unit; or
d. A group of persons with a disability or handicap and associated resident staff, subject to the occupancy and licensing requirements of the State.
For the purpose of this definition, persons with a disability or handicap are defined as the commonly accepted definitions as defined in federal law. The terms handicapped and disabled shall not include current illegal use of or addiction to a controlled substance, nor shall it include any person whose residency in the home would constitute a direct threat to the health and safety of other individuals. This definition is also meant to supersede any State mandated spacing requirements for licensed homes for disabled or handicapped persons as allowed by state law.
Group home is defined as:
A residence operated as a single dwelling, licensed or approved by a governmental agency for the purpose of providing special care or rehabilitation due to homelessness, social, behavioral or disciplinary problems; provided that authorized supervisory personnel are present on the premises. This category would include, but not be limited to, the following types of facilities: juvenile group homes and halfway houses and alcohol and drug dependency residential facilities.
17.28.020 - Definitions
Institutional/Public:
Assisted living/memory care means facilities designed to provide residents with assistance for activities of daily living and medication assistance for individuals with a level of cognitive impairment.
Currently, assisted living/memory care (as noted above) is allowed as a use by special review in all residential zones, as well as the B, I-1 and the I-2, and the Front Street Overlay District.
17.18.030 - Use by Special Review
Assisted Living/Memory Care facilities are subject to the licensing requirements of the State.
Group Homes are subject to the licensing requirements of the State and cannot be located within 1,500 feet of another group home.
Preliminary Analysis Conducted by Staff
In anticipation of the issues that might arise during our discussion, staff has determined that there are sixteen (16) active assisted living facilities in the Town-three (3) are commercial, and thirteen (13) are located in residential zones. (Attachment C, is a listing (with addresses and map) of all facilities (commercial and those in residential zones)). Three of the facilities: 864 Barranca Drive; 1855 Low Meadow Blvd; and 255 Valley Dr. South are commercial facilities and they comprise the only “assisted living” residence on the same block. The Town has two such facilities in one block (797 Tarpan Pl. and 815 Tarpan Pl). Of the sixteen (16) active facilities, fourteen (14) have been issued a Business and Tax license with Castle Rock. And, fifteen (15) appear to hold a current State license.
Data was also gathered and analyzed by the Police department regarding medical and criminal calls for service between January 1, 2012 and August 17, 2015 for each facility, and within the block as a whole. Focusing on the data from the remaining twelve (12) residential facilities located in residential zoned areas (the residential care facility at 572 Eveningsong or (Renaissance Memory Care 2) has not been included in Police department analysis below), the information that follows relates to medical and criminal calls for service. (Please note that traffic accidents would trigger calls for medical service that could impact the figures discussed below).
|
Address |
Residences on Block |
Medical Calls for Service on Block |
Medical Calls to Address |
Criminal Calls for Service on Block |
Criminal Calls to Address |
|
*221 Cantril Street |
10 |
25 |
21 |
7 |
3 |
|
1687 Paonia Ct. |
49 |
71 |
28 |
8 |
0 |
|
1768 Rose Petal Lane |
58 |
25 |
25 |
28 |
1 |
|
1861 Sapling Ct. |
21 |
17 |
15 |
4 |
0 |
|
**797 Tarpan Pl. |
27 |
34 |
16 |
5 |
0 |
|
**815 Tarpan Pl. |
27 |
34 |
14 |
5 |
4 |
|
1671 Thatch Cir. |
15 |
19 |
15 |
3 |
2 |
|
1605 Whitetail Dr. |
51 |
33 |
19 |
13 |
2 |
|
1640 Wild Rye Ct. |
87 |
73 |
23 |
17 |
0 |
|
1746 Wild Star Way |
30 |
32 |
28 |
16 |
7 |
|
3501 Wonder Dr. |
43 |
4 |
0 |
4 |
0 |
|
2473 Woodhouse Ln. |
9 |
10 |
9 |
1 |
0 |
* Although the Cantril facility is located in a residential zone, it has been there for some time and has more of a commercial feel.
**The numbers above overlap relative to the Tarpan addresses insofar as those facilities are on the same block.
Discussion
Efforts to restrict or otherwise regulate residential living facilities (those designed to house mentally or physically handicapped and the elderly) can face a number of legal challenges-primarily based on alleged violations of the Fair Housing Act as amended (FHAA) and the Americans with Disabilities Act (ADA). Courts have recognized that elderly individuals, living in group homes and assisted living facilities, may fall under the protection of the FHAA because of their physical or mental handicaps or disabilities. And, the FHAA affords protection to handicapped persons-defined as those with a physical or mental impairment which substantially limits one or more major life activity; a record of having such an impairment; and/or being regarded as having such an impairment.
Congress articulated concerns about zoning laws and other land use decisions that exclude, or have the unintended effect of excluding, handicapped persons (mental, physical and the elderly) from housing opportunities. Consistent with its stated goals, to increase housing opportunities for handicapped individuals and to integrate them into the mainstream, the FHAA prohibits the use of zoning ordinances and land use to discriminate against people with disabilities. Additionally, in an attempt to increase housing opportunities and to remove traditional discriminatory rules or practices that tend to inhibit people with disabilities (including those that are elderly) from living in housing of their choosing, congress adopted “the reasonable accommodation clause.”
Review of the legislative history of the FHAA, suggests that Congress intended to extend the protections of the FHAA to those actions not only undertaken with discriminatory intent, but also those acts resulting in a discriminatory effect on handicapped individuals especially in the area of zoning and land use decisions.
Since the passage of the FHAA, courts have issued decisions on cases in an attempt to balance and resolve conflicts that have arisen between local municipalities exercising the power to zone (to meet such goals as health, safety and welfare) and prohibiting illegal housing discrimination.
Additional Considerations for Staff
Currently, the Town’s zoning code defines family and allows a “group of persons” (with disabilities or handicaps) to reside in residential zones-subject to state licensing and occupancy requirements.
However, the zoning code and Planned Development regulations for residential zones may conflict with the intent of the family definition. And, the current Code may be subject to differing interpretations.
Under the Town’s current Code, there is some measure of uncertainty associated with the application and enforcement of the State licensing and occupancy requirements. However, attempts to regulate these types of residential care facilities can be fraught with a variety of legal complexities.
Options
1) Make no amendments to the Town’s Municipal Code. (At this time, the Town’s Code defers to State statute with regard to licensing and occupancy).
Pros: Under the current Town Code there are broad opportunities for these types of facilities and the likelihood of legal challenges are remote.
Cons: Deferring to the State (as to licensing and occupancy) enhances the likelihood that there will be misunderstandings and confusion for the Town, its residents, and owners of these types of facilities. Additionally, differing to the State may also create questions regarding the nature, if any, of local enforcement powers.
2) Make minor amendments to the Town’s Code to change the definition for family and assisted living/memory care to more precisely define and clarify those uses.
Pros: It would reduce some of the ambiguity that might currently exist in the Town’s Code.
Cons: It is unlikely that minor amendments to the Code will go far enough in reducing the likelihood of misunderstandings and confusion that might currently exist related to understanding where such uses are permitted and the extent, if any, of the Town’s ability to ensure that these uses are in compliance with State occupancy and licensing requirements-again, in large part, because the Town’s Code defers to the State related to licensing and occupancy.
3) Make extensive amendments to the Town Code that would require modifying the Town’s definitions of family, group homes and assisted living/memory care and specifying concomitant zoning regulations.
If Council is in favor of further exploring the possibility of establishing regulations for residential care facilities (group homes and assisted living facilities in residential zones), then staff can further explore various options, including but not limited to, distance/spacing requirements and limiting the number of occupants. Staff could also more fully explore the possibility of implementing a Use By Special Review in circumstances where distance or occupancy numbers exceed those mandated by any Code amendments that the Town may adopt.
Pros: Significant amendments to the Town Code would reduce the ambiguity that might currently exist and it would give better clarity to the Town’s staff, its residents, and owners of these types of facilities. The Code could be amended to more closely mirror State statute which strives to balance municipal powers to zone and license (related to health, safety and welfare considerations) while ensuring compliance with federal law.
Cons: The law is somewhat unsettled, and review of the legal authority suggests that the cases often turn on specific factual nuances. Any efforts to regulate or otherwise impose restrictions on the types of residential care facilities discussed herein could result in legal challenges.
Recommendations
Staff recommends that further consideration be given to making significant amendments to the Town Code that would more closely mirror State statute.
Attachments
Attachment A: Resident Letter
Attachment B: Police department data
Attachment C: Facility listing