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HomeMy WebLinkAbout4.a. Regulation of Group HomeAGENDA ITEM: Regulation of Group Homes AGENDA SECTION: Response to Public Comment PREPARED BY: City Attorney LeFevere AGENDA NO. ATTACHMENTS: Memo APPROVED BY:fW) RECOMMENDED ACTION: Informational Only 4 ROSEMOUNT City Council Regular Meeting: September 20, 2005 ISSUE Responding to pubhc comment regarding regulation of group homes. BACKGROUND Residents voiced concerns of traffic, parking, and safety with regard to a group home in their neighborhood at the September 6, 2005, City Council meeting. Staff and City Attorney LeFevere explained the legislature enacted law allowing group homes to operate as single family dwellings when six or fewer residents reside there. City Attorney LeFevere was asked to review the covenants connected with the properties on Cormorant Way. The attached memorandum addresses this issue. SUMMARY The residents are advised to contact: CITY COUNCIL Adult Forster Care Licensing Mr. Mike Seiwert, Supervisor 1 Mendota Road West, Suite 300 Mendota Heights, MN 55118 651 -554 -6033 EXECUTIVE SUMMARY Date: September 14, 2005 CHARTERED From: Charles LeFevere CU268157v] RS215-4 Charles L LeFevere 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 (612) 337 -9215 telephone (612) 337 -9310 fax clefev ere kennedy- graven corn http' /www kennedy graven com Re: Regulation of Group Homes MEMORANDUM To: Mayor and the City Council for the City of Rosemount Jamie Verbrugge Jean Grover Lori Manley Gary Leean Mike Seiwert At the last Rosemount City Council meeting, I was requested to describe the limitations on the authority of the City to exclude group homes from single family residential districts. For many years, Minnesota law has provided that certain group homes are permitted uses in single family residential districts. In 1975, Minnesota legislature adopted laws 1975, Chapter 60, Section 2, which added new Subdivision 7 to Minnesota Statutes, Section 462.357. Subdivision 7 then provided: In order to implement the policy of this State that mentally retarded and physically handicapped persons should not be excluded by municipal zoning ordinances from the benefits of normal residential surroundings, a State licensed group home or foster home serving six or fewer mentally retarded or physically handicapped persons, shall be considered a permitted single family residential use of property for the purposes of zoning. That section has been amended several times over the years and currently provides: A state licensed residential facility or a housing with services establishment registered under Chapter 144D serving six or fewer persons, a licensed day care facility serving 12 or fewer persons, and a group family day care facility licensed under Minnesota Rules, Parts 9502.0315 to 9502.0445 to serve 14 or fewer children shall be considered a permitted single family residential use of property for the purposes of zoning, except that a residential facility whose primary purpose is to treat juveniles who have violated criminal statutes relating to sex offenses or have been adjudicated delinquent on the basis of conduct in violation of criminal statutes relating to sex offenses shall not be considered a permitted use. Similar language is found at Minnesota Statutes, Section 245A.11, Subdivision 2, which provides, in part, that: Residential programs with a licensed capacity of six or fewer persons shall be considered a permitted single family residential use of property for the purposes of zoning and other land use regulations, The authority of cities to regulate land use is granted by the State Legislature. The Legislature has withheld from cities the authority to prohibit the described kinds of group homes from single family residential districts. Therefore, even if the City Council wished to exclude these kinds of group homes from single family residential districts, it would not have the legal power to do so under current State law. Several residents in the Shannon Hills neighborhood presented a restrictive covenant that has been recorded against properties in Shannon Hills. The question was raised whether these covenants, dated January 16, 1990, prohibit group homes on the properties covered by the covenants. It should first be noted that it is questionable whether these protective covenants are enforceable by the City. The covenant does not say that it is enforceable by the City or that it is imposed on the property for the benefit of the City. Rather, as stated on the first page, the intent of the covenants is to "establish a uniform plan for the benefit of all lot owners in said development As a private covenant, enforceable by the owners of properties benefited by the covenant, the City would not take the side of either landowner against the other. However, even if the City had the authority to enforce these covenants, it does not appear to me that the covenants are violated by using a structure that meets all of the requirements of the covenants as a group home. Several of the paragraphs use terms like "residential single family lots" and "single family dwelling However, as noted above, qualifying group homes are deemed to be permitted single family residential uses of property under the law. Finally, even if these protective covenants were imposed by requirement by the City, were enforceable by the City, and had the intent of prohibiting group homes, they would not have been legally authorized. In 1990, the City did not have the legal authority to prohibit group homes as permitted uses in single family residential districts. The City could not do indirectly (by requiring covenants) that which it could not do directly in its zoning code. The legislature made this explicit under Minnesota Statutes, Section 245A.11, Subdivision 2, which provides in part. CLL-268157v) RS215-4 Page 2 In conclusion, the City does not have the legal authority to prohibit group homes of the types specified in Minnesota Statutes, Section 462.357, Subdivision 7. Any suggestions that State law should be changed would have to be addressed to the State Legislature. If the license activity is not meeting the requirements of its licensure, concerns could be addressed to the licensing authority. I understand that the person to contact is Mike Seiwert, Supervisor of Adult foster Care Licensing, 1 Mendota Road West, Suite 300, Dakota County, MN 55118 (651) 554 -6033. Finally, if the conduct of operators or occupants of a group home violate provisions of law, those matters can be reported to the appropriate enforcement authority at the City just as such activities could be reported to the City in the case of any other user or occupant of single- family residential property. Please let me know if you have any further questions. CLL:peb CLL- 268157v] RS215 -4 Programs otherwise allowed under this Subdivision shall not be prohibited by operation of restrictive covenants or similar restrictions, regardless of when entered into, which cannot be met because of the nature of the licensed program, including provisions which require the home's occupants be related, and that the home must be occupied by the owner, or similar provisions. Page 3