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HomeMy WebLinkAbout6.h. Temporary Family Health Care Dwelling Opt-Out Text Amendment EXECUTIVE SUMMARY City Council Regular Meeting: September 6, 2016 AGENDA ITEM: Temporary Family Health Care Dwelling Opt-Out Text Amendment AGENDA SECTION: Consent PREPARED BY: Anthony Nemcek, Planner AGENDA NO. 6.h. ATTACHMENTS: Draft Ordinance, Excerpt Planning Commission Minutes August 23, 2016, News Article Dated August 11, 2016, League of Minnesota Cities FAQ APPROVED BY: ddj RECOMMENDED ACTION: Motion to approve an ordinance to opt-out of the requirements of Minnesota Statute §462.3593. SUMMARY In May of 2016, Governor Dayton signed into law, a bill that allows property owners to place a temporary residential dwelling on their property for the purpose of providing care and housing for an individual with physical or mental impairments. The new law alters the City’s level of zoning authority for these types of structures. Unless cities opt-out of the statute, they must begin accepting and processing permit applications for this type of dwelling on September 1, 2016. The new law includes an expedited permit process that shortens the time frame within which a local government unit can make a decision on the permit to 15 days. Public hearings are not required, and the law specifically prohibits cities from extending the time for making a decision on the permit application. Cities do retain the right to inspect, enforce, and ultimately revoke the permit, but only if the permit holder violates the state law. The permit is available for a 6-month time period with the ability to renew for another 6 months. There are many requirements that a structure must comply with to qualify under the new Statute. Primarily, the structures must be pre-assembled and cannot exceed 300 gross square feet. Other requirements have to do with building materials and standards. Pop-up trailers and structures with their own foundations are precluded by state law from being used as temporary health care dwellings. The new law also states that the dwellings are not regulated by City ordinances that relate to accessory uses and recreational vehicle storage. However, setbacks and other ordinances still apply. PLANNING COMMISSION ACTION The Planning Commission held a public hearing to review the ordinance to opt out of the requirements of Minnesota Statute §462.3593. Commissioners asked about being able to opt-in if a need arises in the future. Staff responded that a zoning text amendment can be adopted that makes this type of use permitted or conditional in certain zoning districts. The Commissioners also wondered about the abbreviated permitting process found in the Statute and if 2 the City would have the ability to institute an abbreviated review period in any future ordinances. Staff advised that while there hasn’t been a demonstrated need for a new ordinance allowing temporary healthcare dwellings the City could implement an abbreviated review period if desired. The Commission felt comfortable waiting to see what other cities are doing first and what issues could arise. No public comments were received by the commission, and the motion to recommend approval of the ordinance amendment passed unanimously. OPT-OUT In order to gain more time to better understand the issue and assess whether there is a community- identified need for such dwellings within Rosemount, staff is recommending that the City opt-out from the state law. If such a need is determined to exist, the City Code can be amended to allow the dwellings as a permitted or conditional use in certain districts, and perhaps with more regulations than that found in the state law. Opting-out will allow Staff, if directed, to develop an ordinance that is tailored to Rosemount as opposed to a blanket statute that applies to all cities equally. Staff does not recall any time where the City has been approached to install a temporary facility for this purpose. We have received requests for accessory apartments, or a separate accessory dwelling unit, particularly in the rural residential areas, but it was unclear if there were healthcare relate reasons. Staff does not support adopting in total the state legislation and therefore is recommended to opt-out. As the attached FAQ indicates, even if the City was interested in some portion of the regulations, it is advised to opt-out and then separately adopt what regulations and criteria the City would want in the ordinance. RECOMMENDATION Based on the information reviewed above, Staff recommends opting-out of Minnesota Statute §462.3593 by approving the attached ordinance. City of Rosemount Ordinance No. B- 2XX AN ORDINANCE OPTING-OUT OF THE REQUIREMENTS OF MINNESOTA STATUTES, SECTION 462.3593 FOR TEMPORARY FAMILY HEALTH CARE DWELLINGS WHEREAS, on May 12, 2016, Governor Dayton signed into law the creation and regulation of temporary family health care dwellings, codified at Minn. Stat. § 462.3593, which permit and regulate temporary family health care dwellings; WHEREAS, subdivision 9 of Minn. Stat. §462.3593 allows cities to “opt out” of those regulations; THE CITY COUNCIL OF THE CITY OF ROSEMOUNT, MINNESOTA, ORDAINS that Ordinance B, adopted September 19, 1989, entitled “City of Rosemount Zoning Ordinance,” is hereby amended as follows: Section 1. Pursuant to authority granted by Minnesota Statutes, Section 462.3593, subdivision 9, the City of Rosemount opts-out of the requirements of Minn. Stat. §462.3593, which defines and regulates Temporary Family Health Care Dwellings. Section 2. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after its passage and publication according to law. [Underlined material is new. Stricken material is deleted.] ENACTED AND ORDAINED into an Ordinance this 6th day of September, 2016. CITY OF ROSEMOUNT ________ William H. Droste, Mayor ATTEST: Clarissa Handler, City Clerk EXCERPT OF DRAFT MINUTES PLANNING COMMISSION REGULAR MEETING AUGUST 23, 2016 6.c. Request by City of Rosemount for a Zoning Ordinance Text Amendment to opt out of Temporary Family Health Care Dwelling amending Section 11-2-14: Temporary Dwellings. (16-32-TA) Planner Nemcek gave a brief summary of the staff report. Chair Kenninger inquired if we can opt in in the future and if we need to renew the opt out status in the future. Nemcek stated nothing needs to be done unless we want to change the ord inance to opt in. Commissioner Forester inquired if staff has discussed what ordinance could look like. Nemcek stated that staff is waiting to see if there is a demand before we do anything. Commissioner VanderWiel inquired about the abbreviated permit process, if the city opts out now does it have ability to have an abbreviated review if needed. Lindquist stated there hasn’t been any request for something like this, but if needed the city could have an abbreviated review if needed. The City wants to proc eed with caution instead of just allowing it. The city has more responsibility to verify the medical need if these are allowed. Commissioner Mele felt comfortable with waiting to see what other cities are doing first and what issues arise. Public Comment opened at 7:03 Public comments: None MOTION by Clements to close the public hearing. Second by Forester. Ayes: 5. Nays: 0. Motion Passes. The public hearing was closed at 7:03 pm. Additional Comments: Motion by Clements to recommend Council to approve an ordinance to opt-out of the requirements of Minnesota Statute §462.3593. Second by Mele. Ayes: 5. Nays: 0. Granny pods find lukewarm reception in Minnesota cities Business Martin Moylan · Aug 11, 2016 NextDoor Housing's granny pods are designed to meet or exceed the construction standards for recreational vehicles and withstand Minnesota winters. They typically sell for about $45,000. Martin Moylan | MPR News Two twenty-something University of Minnesota graduates see a business opportunity in the housing shortage for the elderly. Jesse Lammi and John Louiselle are making portable housing units that are a cross between a tiny home and an RV. They created the so-called granny pods because the pair felt the need for a certain type of housing. "We saw our grandparents moving onto housing situations that were not ideal or affordable for them at that time," Louiselle said in a recent interview at the Big Lake offices of NextDoor Housing. "So, we recognized the need for a more affordable way to keep loved ones next door." Come Sept. 1, granny pods will be legal in Minnesota on residential property to provide short-term housing to a relative requiring personal care or supervision. That is, unless a city acts to ban them. Many cities — including St. Cloud, Minneapolis, St. Paul and a number of metro-area suburbs — have banned the structures or are likely to. Despite the granny pod bans in some cities, there's still plenty of opportunity remaining in rural Minnesota, Louiselle said. "North of St. Cloud and up, you know, those Iron Range communities, a granny pod can really benefit a family," he said. A 2014 study projected the demand for affordable senior housing in Minnesota would jump by more than 50 percent over five years, but that the need is unlikely to be met. John Louiselle and Jesse Lammi founded NextDoor Housing , which sells small mobile housing units that people can put on their property to provide short-term care to a relative. Martin Moylan | MPR News Lammi and Louiselle designed the homes, consulting with experts to make the units accessible. They found a Minnesota manufactured home company, Homark Homes of Red Lake Falls, to build the homes and mount them on steel trailers that can be hauled by a pickup truck. The units can get water and electricity from a nearby house. On-board tanks store waste water for up to four weeks until it's pumped away by a septic waste company. The mini-houses are designed to meet or exceed the construction standards for recreational vehicles and withstand Minnesota winters, and Louiselle said units typically sell for about $45,000. By law, these small portable homes can be no bigger than 300 square feet and must be on property where a caregiver or relative resides. A medical professional also has to vouch that the granny pod's occupant needs help with two or more daily activities. This past February, Anita Burke of Apple Valley considered getting a NextDoor Housing home for her ill, elderly mother, who was in an assisted living facility. Burke did not have a spare room in her home for her mother, never mind an accessible bathroom. "It's hard when you're in the sandwich generation and you're taking care of elderly parents, as well raising your kids," she said. "I thought that if I could move her into my backyard I would be closer to her. It would be cheaper with me being able to provide most of her care." But Burke doubted her home town of Apple Valley would allow her to put a pod on her property. Her mom passed away in July so she no longer needs one. But she thinks the tiny dwellings should be an option for families needing to care for a loved one. "You might be in an accident and need to have some care," she said. "And it's costly in long-term and rehab care centers." In Minnesota, the average cost of care for a year in an assisted living facility is about $40,000. Nursing home care averages $62,000. Louiselle says his firm's mini-homes can be hitched to a pickup truck and moved as needed. Martin Moylan | MPR News Many communities choosing not to allow granny pods want more time to study how to deal with this new type of housing. "They don't have time to spend much time discussing this right now to meet the September 1 deadline," says Craig Johnson of the League of Minnesota Cities. "So, people are opting out and may look at it further in the future as something they want to be part of." Johnson believes communities recognize they need to help residents find housing for aging or impaired family members. "There is a huge fear and demand for how are we going to deal with preventing people ending up alone that need to have some sort of support," he said. DFL state Sen. John Hoffman was a sponsor of the legislation intended to encourage the spread of granny pods. He says some colleagues wanted to permit larger housing units and let them stay in place longer. "Some communities are saying, 'We really, really, really want this,'" he said. "Other communities are saying, 'Not in my backyard.'" The Minnesota Department of Human Services gave NextDoor Housing a grant of several hundred thousand dollars to get the company started. Minnesota Board on Aging executive director Kari Benson said money invested in developing granny pods is well spent. "We do see it fitting into the mix of housing options for older adults," she said. "As we're looking towards an aging population with the aging of the baby boomers, we need all of the options at least considered and on the table." Whether communities decide to welcome granny pods or not, discussion about the mini homes at least raises awareness of the need to address the elderly housing issue, Benson said. NextDoor Housing appears to be the sole company selling such granny pods in Minnesota. So far the company will say only that sales total three to five units. Temporary Family Health Care Dwellings of 2016 Allowing Temporary Structures – What it means for Cities Introduction: On May 12, 2016, Gov. Dayton signed, into law, a bill creating a new process for landowners to place mobile residential dwellings on their property to serve as a temporary family health care dwelling.1 Community desire to provide transitional housing for those with mental or physical impairments and the increased need for short term care for aging family members served as the catalysts behind the legislature taking on this initiative. The resulting legislation sets forth a short term care alternative for a “mentally or physically impaired person”, by allowing them to stay in a “temporary dwelling” on a relative’s or caregiver’s property.2 Where can I read the new law? Until the state statutes are revised to include bills passed this session, cities can find this new bill at 2016 Laws, Chapter 111. Does the law require cities to follow and implement the new temporary family health care dwelling law? Yes, unless a city opts out of the new law or currently allows temporary family health care dwellings as a permitted use. Considerations for cities regarding the opt-out? These new temporary dwellings address an emerging community need to provide more convenient temporary care. When analyzing whether or not to opt out, cities may want to consider that: • The new law alters a city’s level of zoning authority for these types of structures. • While the city’s zoning ordinances for accessories or recreational vehicles do not apply, these structures still must comply with setback requirements. • A city’s zoning and other ordinances, other than its accessory use or recreational vehicle ordinances, still apply to these structures. Because conflicts may arise between the statute and a city’s local ordinances, cities should confer with their city attorneys to analyze their current ordinances in light of the new law. 1 2016 Laws, Chapter 111. 2 Some cities asked if other states have adopted this type of law. The only states that have a somewhat similar statute at the time of publication of this FAQ are North Carolina and Virginia. It is worth noting that some states have adopted Accessory Dwelling Unit (ADU) statutes to allow granny flats, however, these ADU statutes differ from Minnesota’s Temporary Health Care Dwelling law. Temporary Family HealthCare Dwellings June 27, 2016 Page 2 • Although not necessarily a legal issue for the city, it seems worth mentioning that the permit process does not have the individual with the physical or mental impairment or that individual’s power of attorney sign the permit application or a consent to release his or her data. • The application’s data requirements may result in the city possessing and maintaining nonpublic data governed by the Minnesota Government Data Practices Act. • The new law sets forth a permitting system for both cities and counties 3. Cities should consider whether there is an interplay between these two statutes. Do cities need to do anything to have the new law apply in their city? No, the law goes into effect Sept. 1, 2016 and automatically applies to all cities that do not opt out or don’t already allow temporary family health care dwellings as a permitted use under their local ordinances. Do cities lose the option to opt out after the Sept. 1, 2016 effective date? No, the law does not set a deadline for opting out, so cities can opt out after Sept. 1, 2016. However, if the city has not opted out by Sept. 1, 2016, then the city must not only have determined a permit fee amount 4 before that date (if the city wants to have an amount different than the law’s default amount), but also must be ready on that date to accept applications and process the permits in accordance with the short timeline required by the law. Cities should consult their city attorney to analyze how to handle applications submitted after Sept. 1, 2016, but still pending at the time of a later opt out. What if a city already allows a temporary family health care dwelling as a permitted use? If the city already has designated temporary family health care dwellings as a permitted use, then the law does not apply and the city follows its own ordinance. The city should consult its city attorney for any uncertainty about whether structures currently permitted under existing ordinances qualify as temporary family health care dwellings. What process should the city follow if it chooses to opt out of this statute? Cities that wish to opt out of this law must pass an ordinance to do so. The statute does not provide clear guidance on how to treat this opt-out ordinance. However, since the new law adds section 462.3593 to the land use planning act (Minn. Stat. ch. 462), arguably, it may represent the adoption or an amendment of a zoning ordinance, triggering the requirements of Minn. Stat. § 462.357, subd. 2-4, including a public hearing with 10-day published notice. Therefore, cities may want to err on the side of caution and treat the opt-out ordinance as a zoning provision.5 3 See Minn. Stat. §394.307 4 Cities do have flexibility as to amounts of the permit fee. The law sets, as a default, a fee of $100 for the initial permit with a $50 renewal fee, but authorizes a city to provide otherwise by ordinance. 5 For smaller communities without zoning at all, those cities still need to adopt an opt-out ordinance. In those instances, it seems less likely that the opt-out ordinance would equate to zoning. Because of the ambiguity of the Temporary Family HealthCare Dwellings June 27, 2016 Page 3 Does the League have a model ordinance for opting out of this program? Yes. Link to opt out ordinance here: Temporary Family Health Care Dwellings Ordinance Can cities partially opt out of the temporary family health care dwelling law? Not likely. The opt-out language of the statute allows a city, by ordinance, to opt out of the requirements of the law but makes no reference to opting out of parts of the law. If a city wanted a program different from the one specified in statute, the most conservative approach would be to opt out of the statute, then adopt an ordinance structured in the manner best suited to the city. Since the law does not explicitly provide for a partial opt out, cites wanting to just partially opt out from the statute should consult their city attorney. Can a city adopt pieces of this program or change the requirements listed in the statute? Similar to the answer about partially opting out, the law does not specifically authorize a city to alter the statutory requirements or adopt only just pieces of the statute. Several cities have asked if they could add additional criteria, like regulating placement on driveways, specific lot size limits, or anchoring requirements. As mentioned above, if a city wants a program different from the one specified in the statute, the most conservative approach would involve opting out of the statute in its entirety and then adopting an ordinance structured in the manner best suited to the city. Again, a city should consult its city attorney when considering adopting an altered version of the state law. What is required in an application for a temporary family health care dwelling permit? The mandatory application requests very specific information including, but not limited to:6 • Name, address, and telephone number of the property owner, the resident of the property (if different than the owner), and the primary care giver; • Name of the mentally or physically impaired person; • Proof of care from a provider network, including respite care, primary care or remote monitoring; • Written certification signed by a Minnesota licensed physician, physician assistant or advanced practice registered nurse that the individual with the mental or physical impairment needs assistance performing two or more “instrumental activities of daily life;”7 statute, cities should consult their city attorneys on how best to approach adoption of the opt-out ordinance for their communities. 6 New Minn. Stat. § 462.3593, subd. 3 sets forth all the application criteria. 7 This is a term defined in law at Minn. Stat. § 256B.0659, subd. 1(i) as “activities to include meal planning and preparation; basic assistance with paying bills; shopping for food, clothing, and other essential items; performing household tasks integral to the personal care assistance services; communication by telephone and other media; and traveling, including to medical appointments and to participate in the community.” Temporary Family HealthCare Dwellings June 27, 2016 Page 4 • An executed contract for septic sewer management or other proof of adequate septic sewer management; • An affidavit that the applicant provided notice to adjacent property owners and residents; • A general site map showing the location of the temporary dwelling and the other structures on the lot; and • Compliance with setbacks and maximum floor area requirements of primary structure. The law requires all of the following to sign the application: the primary caregiver, the owner of the property (on which the temporary dwelling will be located) and the resident of the property (if not the same as the property owner). However, neither the physically disabled or mentally impaired individual nor his or her power of attorney signs the application. Who can host a temporary family health care dwelling? Placement of a temporary family health care dwelling can only be on the property where a “caregiver” or “relative” resides. The statute defines caregiver as “an individual, 18 years of age or older, who: (1) provides care for a mentally or physically impaired person; and (2) is a relative, legal guardian, or health care agent of the mentally or physically impaired person for whom the individual is caring.” The definition of “relative” includes “a spouse, parent, grandparent, child, grandchild, sibling, uncle, aunt, nephew or niece of the mentally or physically impaired person. Relative also includes half, step and in-law relationships.” Is this program just for the elderly? No. The legislature did not include an age requirement for the mentally or physically impaired dweller. 8 Who can live in a temporary family health care dwelling and for how long? The permit for a temporary health care dwelling must name the person eligible to reside in the unit. The law requires the person residing in the dwelling to qualify as “mentally or physically impaired,” defined as “a person who is a resident of this state and who requires assistance with two or more instrumental activities of daily living as certified by a physician, a physician assistant, or an advanced practice registered nurse, licenses to practice in this state.” The law specifically limits the time frame for these temporary dwellings permits to 6 months, with a one-time 6 month renewal option. Further, there can be only one dwelling per lot and only one dweller who resides within the temporary dwelling 8 The law expressly exempts a temporary family health care dwelling from being considered “housing with services establishment”, which, in turn, results in the 55 or older age restriction set forth for “housing with services establishment” not applying. Temporary Family HealthCare Dwellings June 27, 2016 Page 5 What structures qualify as temporary family health care dwellings under the new law? The specific structural requirements set forth in the law preclude using pop up campers on the driveway or the “granny flat” with its own foundation as a temporary structure. Qualifying temporary structures must: • Primarily be pre-assembled; • Cannot exceed 300 gross square feet; • Cannot attach to a permanent foundation; • Must be universally designed and meet state accessibility standards; • Must provide access to water and electrical utilities (by connecting to principal dwelling or by other comparable means 9); • Must have compatible standard residential construction exterior materials; • Must have minimum insulation of R-15; • Must be portable (as defined by statute); • Must comply with Minnesota Rules chapter 1360 (prefabricated buildings) or 1361 (industrialized/modular buildings), “and contain an Industrialized Buildings Commission seal and data plate or to American National Standards Institute Code 119.2”10; and • Must contain a backflow check valve.11 Does the State Building Code apply to the construction of a temporary family health care dwelling? Mostly, no. These structures must meet accessibility standards (which are in the State Building Code). The primary types of dwellings proposed fall within the classification of recreational vehicles, to which the State Building Code does not apply. Two other options exist, however, for these types of dwellings. If these structures represent a pre-fabricated home, the federal building code requirements for manufactured homes apply (as stated in Minnesota Rules, Chapter 1360). If these structures are modular homes, on the other hand, they must be constructed consistent with the State Building Code (as stated in Minnesota Rules, Chapter 1361). What health, safety and welfare requirements does this new law include? Aside from the construction requirements of the unit, the temporary family health care dwelling must be located in an area on the property where “septic services and emergency vehicles can gain access to the temporary family health care dwelling in a safe and timely manner.” What local ordinances and zoning apply to a temporary health care dwelling? The new law states that ordinances related to accessory uses and recreational vehicle storage and parking do not apply to these temporary family health care dwellings. 9 The Legislature did not provide guidance on what represents “other comparable means”. 10 ANSI Code 119.2 has been superseded by NFPA 1192. For more information, the American National Standards Institute website is located at https://www.ansi.org/. 11 New Minn. Stat. § 462.3593, subd. 2 sets forth all the structure criteria. Temporary Family HealthCare Dwellings June 27, 2016 Page 6 However, unless otherwise provided, setbacks and other local ordinances, charter provisions, and applicable state laws still apply. Because conflicts may arise between the statute and one or more of the city’s other local ordinances, cities should confer with their city attorneys to analyze their current ordinances in light of the new law. What permit process should cities follow for these permits? The law creates a new type of expedited permit process. The permit approval process found in Minn. Stat. § 15.99 generally applies; however, the new law shortens the time frame within which the local governmental unit can make a decision on the permit. Due to the time sensitive nature of issuing a temporary dwelling permit, the city does not have to hold a public hearing on the application and has only 15 days (rather than 60 days) to either issue or deny a permit. For those councils that regularly meet only once a month, the law provides for a 30-day decision. The law specifically prohibits cities from extending the time for making a decision on the permit application. The new law allows the clock to restart if a city deems an application incomplete, but the city must provide the applicant written notice within five business days of receipt of the application identifying the missing information. Can cities collect fees for these permits? Cities have flexibility as to amounts of the permit fee. The law sets the fee at $100 for the initial permit with a $50 renewal fee, unless a city provides otherwise by ordinance Can cities inspect, enforce and ultimately revoke these permits? Yes, but only if the permit holder violates the requirements of the law. The statute allows for the city to require the permit holder to provide evidence of compliance and also authorizes the city to inspect the temporary dwelling at times convenient to the caregiver to determine compliance. The permit holder then has sixty (60) days from the date of revocation to remove the temporary family health care dwelling. The law does not address appeals of a revocation. How should cities handle data it acquires from these permits? The application data may result in the city possessing and maintaining nonpublic data governed by the Minnesota Government Data Practices Act. To minimize collection of protected heath data or other nonpublic data, the city could, for example, request that the required certification of need simply state “that the person who will reside in the temporary family health care dwelling needs assistance with two or more instrumental activities of daily living”, without including in that certification data or information about the specific reasons for the assistance, the types of assistance, the medical conditions or the treatment plans of the person with the mental illness or physical disability. Because of the complexities surrounding nonpublic data, cities should consult their city attorneys when drafting a permit application. Should the city consult its city attorney? Yes. As with any new law, to determine the potential impact on cities, the League recommends consulting with your city attorney. Temporary Family HealthCare Dwellings June 27, 2016 Page 7 Where can cities get additional information or ask other questions. For more information, contact Staff Attorney Pamela Whitmore at pwhitmore@lmc.org or LMC General Counsel Tom Grundhoefer at tgrundho@lmc.org. If you prefer calling, you can reach Pamela at 651.281.1224 or Tom at 651.281.1266.