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Thread: Power to the BOA!

  1. #1
    Cyburbian
    Registered
    Apr 2004
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    Utah
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    137

    Power to the BOA!

    Our town has adopted an ordinance dealing with group homes, which has a whole section of rules for granting 'reasonable accommodation' in the event someone wants to build a home for the disabled which qualifies for special FHAA/ADA protections. It has been pointed out to me (as the writer of the section in question, unfortunately!) that the procedure chapter includes a questionable step, and I'm afraid it's true. The request for accommodation must begin with a recommendation from the planning commission, and then go before the council for a vote. However, the ordinance also says, "If a request for reasonable accommodation is denied, [it] may be appealed to the Board of Adjustment in the manner provided for appeals of administrative decisions applying this title" This is wrong; I know it is! Where the heck did that come from, and why did I never notice it? The BOA cannot reverse the judgement of our elected council. The applicant would have to take it to district court, and we don't want that. How can we provide another step if we want the council to make the 'final' decisions on these requests, but still want applicants to have another chance to negotiate? Can we say something like that in the event of denial, applicant may request a variance before the BOA (during which request applicant may negotiate the accommodation to be more palatable to town interests)? Then it would be a new decision altogether, yes? Or am I way off track?
    If you got all the way through this question, thanks!

  2. #2
    Cyburbian
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    Max,

    The courts have said that use variances are illegal. A variance would be the wrong way to go, because you open the doors for a lawsuit. Are you sure that the clause in question is not referring to the planning commission decision? I believe that any appeal of a city council decision would be through a lawsuit filed in district court(?).

  3. #3
    Cyburbian
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    Utah
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    Quote Originally posted by cololi
    Max,

    The courts have said that use variances are illegal. A variance would be the wrong way to go, because you open the doors for a lawsuit. Are you sure that the clause in question is not referring to the planning commission decision? I believe that any appeal of a city council decision would be through a lawsuit filed in district court(?).

    Oh, oops! It's confusing because a lot of the case law about "reasonable accommodation" suggests that variances are one way to provide it. I'll have to go back and look at some of the particular variances that were given in those cases. Maybe we will just have to state that the P&Z decision can be appealed to BOA, and forget about another step. Thank you, Cololi!

  4. #4
    Cyburbian
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    ...case law about "reasonable accommodation" suggests that variances are one way to provide it. I'll have to go back and look at some of the particular variances that were given in those cases.
    Found this quote from Oxford House v. City of Virginia Beach (July 2, 1993): "Requests to grant conditional use permits, or variances from [**28] occupancy restrictions, might be reasonable or unreasonable depending on numerous factors, including the number of proposed occupants and their proposed use of the premises in relation to the surrounding community…")

    ??

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