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Ordinance 22098-03-2016 ORDINANCE NO.22098-03-2016 AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF FORT WORTH, BEING ORDINANCE NO. 21653, AS AMENDED, BY AMENDING CHAPTER 17 "HUMAN RELATIONS," ARTICLE III, "DISCRIMINATION" TO ADD DIVISION V "REASONABLE ACCOMMODATION OR MODIFICATION FOR RESIDENTIAL USES" FOR PERSONS WITH DISABILITIES TO PROVIDE A PROCESS TO REQUEST AND APPROVE SUCH ACCOMMODATION; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE WHEREAS, housing that is accessible to people with disabilities has been identified as a special housing need in the 2013 City of Fort Worth Analysis of Impediments to Fair Housing Choice report; and WHEREAS, the 2013 City of Fort Worth Analysis of Impediments to Fair Housing Choice report calls for a reasonable accommodation ordinance that streamlines and formalizes City procedures related to accommodations; and WHEREAS, Title VIII of the Civil Rights Act of 1968, as amended by the Federal Fair Housing Amendments Act of 1988 ("FHA"), and the Americans with Disabilities Act ("ADA") impose an affirmative duty on local governments to make reasonable accommodations (modifications or exceptions) in their rules, policies, practices, or services related to zoning and land use regulation when such accommodation may be necessary to afford an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, the City of Fort Worth has historically provided for accommodations through the use of existing regulatory procedures not specifically designed for people with disabilities; and WHEREAS, codification of a formal procedure for individuals with disabilities seeking equal access to housing to request reasonable accommodation in the application of the City's land use and zoning standards, regulations, policies, and procedures and establishment of relevant criteria to be used when considering such requests will ensure prompt, fair and efficient handling of such requests in accordance with the statutory mandates, including the reasonable accommodation mandates of the FHA and ADA. NOW, THEREFORE,BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS AS FOLLOWS: Chapter 17,Art. 3 Div. V: Reasonable Accommodation Ordinance No.22098-03-2016 Page 1 of 8 SECTION 1. Chapter 17 "Human Relations," Article III, "Discrimination" of the Code of the City of Fort Worth is hereby amended to add Division V "Reasonable Accommodation or Modification for Residential Uses" for persons with disabilities to be and read as follows: 17-107 Purpose It is the policy of the City of Fort Worth, pursuant to the Fair Housing Amendments Act of 1988, the Americans with Disabilities Act and applicable state laws, to provide individuals with disabilities reasonable accommodations (including modifications or exceptions) in the City's zoning, land use and other regulations, rules, policies and practices, to ensure equal access to housing and to facilitate the development of housing for individuals with disabilities, or developers of housing for people with disabilities, flexibility in the application of land use, zoning, building and other regulations, policies, practices and procedures, including waiving certain requirements, when it is necessary to eliminate barriers to housing opportunities to ensure a person with a disability has an equal opportunity to use and enjoy a dwelling. This Division provides a procedure for making requests for accommodations in land use, zoning, building regulations and other regulations, policies, practices, and procedures of the jurisdiction to comply fully with the intent and purpose of applicable laws, including federal laws, in making a reasonable accommodation. Nothing in this Division shall require persons with disabilities or operators of homes for persons with disabilities acting or operating in accordance with applicable zoning or land use laws or practices to seek a reasonable accommodation under this Division. Nothing in this Division shall require the City of Fort Worth to agree to requested accommodations that are unreasonable. 17-108 Applicability a. The provisions of this Division apply to residential uses that will be used by persons with disabilities. b. The accommodation granted shall be considered personal to the individual(s) and shall not run with the land. If the structure is sold, or otherwise changes ownership, an accommodation granted to the previous owner is not transferable to the new owner. Notwithstanding, the accommodation shall be in force and effect as long as the person(s) or group of persons with disabilities for whom the accommodation was sought resides on the property that is the subject of the accommodation. It is the duty of the owner to notify the Director of this event. The city shall allow the new owner an opportunity to renew and/or modify a granted reasonable accommodation in accordance with this Division. In the event that the reasonable accommodation is not renewed or modified within sixty (60) days from the date of change in ownership, the accommodation will lapse and the structure will have to comply with all requirements of this Division. c. Nothing in this Division will require the City to expend any funds to achieve a reasonable accommodation except and to the extent required by state or federal law. Page 2 of 8 Chapter 17,Art. 3 Div.V: Reasonable Accommodation Ordinance No.22098-03-2016 d. Nothing in this Division will alter a person with disabilities' obligation to comply with other applicable federal, state and City regulations. e. The City shall prominently display a notice at the counter in the Planning and Development Department advising those with disabilities or their representatives that they may request a reasonable accommodation in accordance with the procedures established in this Division. A copy of the notice shall be available upon request. 17-109 Definitions a. Person with disabilities for the purposes of this Division, has the meaning set forth in the federal Fair Housing Act and the American with Disabilities Act and is an individual who has a physical or mental impairment that limits one or more of the major life activities of such individual, is regarded as having such impairment, or has a record of such impairment. While a person recovering from substance abuse is considered a person with a disability under 42 U.S.C. § 3602(h), a person who is currently engaged in illegal use of controlled substances is not. b. Reasonable accommodation (inclusive of modification) means the act of making a dwelling unit or housing facility(ies) readily accessible to and usable by a person with disabilities, through the removal of constraints in the City's land use, zoning, permit and processing procedures. All accommodations may be not reasonable, and the reasonableness of a request will be determined by the Director or City Manager's designee upon appeal. c. Director means the Planning and Development Department head or City official with authority to administer, implement, or enforce a requirement that is the basis of the request for reasonable accommodation. d. Requirement means a provision of the City Code or an administrative policy, program or procedure. 17-110 Effect A reasonable accommodation controls over a conflicting City regulation or requirement. 17-111 Requests for Accommodation; Application a. An application for an accommodation may be made by any person(s) with a disability, his or her representative, or a developer or provider of housing for persons with disabilities. b. A request for accommodation may be submitted at any time the accommodation may be necessary to afford the person with a disability equal opportunity to use and enjoy the dwelling. A written acknowledgement of the request shall be sent to the applicant within' ten (10) days of receipt by the Director. Page 3 of 8 Chapter 17,Art. 3 Div.V: Reasonable Accommodation Ordinance No.22098-03-2016 c. Requests for an accommodation may include a modification or exception to the rules, standards and practices for the siting, development, and use of housing or housing-related facilities that would eliminate regulatory barriers and provide a person with a disability equal opportunity to a dwelling of his or her choice. d. An individual requesting an accommodation shall direct the request to the Director of the Planning and Development Department, orally, which shall be transcribed by the City into writing if requested by the applicant or if it is apparent to a City employee or staff that assistance is needed in filling out the application form (e.g., if the individual is unable to write), or in writing. The individual shall submit an application for a reasonable accommodation using the appropriate City form, to be provided by the Director. The City shall assist the applicant with furnishing all information maintained by the City with respect to an accommodation. The applicant shall provide the following: 1. Name and address of the person or entity requesting accommodation. If the applicant is applying on behalf of a person with a disability, the name and address of the person with a disability shall also be provided. 2. Address of the property for which the accommodation is requested. 3. Indication of whether that the applicant is (a) a person with a disability, (b) applying on behalf of a person with a disability, or (c) a developer or provider of housing for one or more person(s)with a disability. 4. Description of the disability at issue, the requested accommodation, and the specific regulation(s), policy, practice or procedure for which the accommodation is sought. In the event that the specific individuals who are expected to reside at the property are not known to a provider in advance of making the application, the provider shall not be precluded from filing the application, but shall submit details describing the range of disabilities that prospective residents are expected to have to qualify for the housing. 5. Description of whether the specific accommodation requested by the applicant is necessary for the person(s) with the disability to use and enjoy the dwelling, or is necessary to make the provision of housing for persons with disabilities financially or practically feasible. 6. Any other information the Director concludes is necessary in order to make the findings required by Section 17-113 to the extent permissible under applicable local, state and federal laws. In most cases, an individual's medical records or detailed information about the nature of a person's disability is not necessary for this inquiry. (See Joint Statement of The Department of Housing & Urban Development & The Department of Justice: Reasonable Accommodations Under the Fair Housing Act#18.) e. Any personal information regarding disability status identified by an applicant as confidential shall be retained in a manner so as to respect the privacy rights of the applicant and/or person with a disability and shall not be made available for public Page 4 of 8 Chapter 17,Art. 3 Div.V: Reasonable Accommodation Ordinance No.22098-03-2016 inspection unless required by the Texas Public Information Act. Any information received regarding the disability status identified, including but not limited to medical records, will be returned to the applicant within ten (10) days of the decision of the City Manager's designee. The Applicant need provide only the information necessary for the City to evaluate the reasonable accommodation request. f. If the person with the disability needs assistance to make a request for accommodation, the Director will provide assistance, including transcribing a verbal request into a written request. g. A fee shall not be required for an application for an accommodation. 17-112 Review Authority a. A request for accommodation shall be reviewed, and a determination made, by the Director, using the criteria set forth in Section 17-113. b. The Director shall issue a written decision on a request for accommodation within thirty (30) calendar days of the date of the application, and may either grant, grant with alterations or conditions, or deny a request for an accommodation in accordance with the required findings set forth in Section 17-113. c. If necessary to reach a determination on the request for accommodation, the Director may request further information from the applicant consistent with applicable laws, specifying in detail the additional information that is required. Any personal information related to the disability status identified by the applicant as confidential shall be retained in a manner so as to protect the privacy rights of the applicant and shall not be made available for public inspection unless required by the Texas Public Information Act. Any information received regarding the disability status identified, including but not limited to medical records, will be returned to the applicant within ten (10) days of the decision of the City Manager's designee. If a request for additional information is made, the running of the thirty (30) calendar day period to issue a decision is stayed until the applicant responds to the request. 17-113 Required Findings a. The written decision to grant, grant with alterations or conditions, or deny a request for accommodation shall be based on the following factors to the extent they are consistent with applicable laws: 1. Whether the housing that is the subject of the request for accommodation will be used by a person with a disability protected under the applicable laws. 2. Whether the requested accommodation is necessary to make a dwelling available to a person with disabilities protected under the applicable laws. 3. Whether the requested accommodation would pose an undue financial or administrative burden on the City. The determination of undue financial and administrative burden will be done on a case-by-case basis. 4. Whether the requested accommodation would require a fundamental alteration in the nature of a City program or law, including but not limited to zoning and land use. Page 5 of 8 Chapter 17,Art. 3 Div.V:Reasonable Accommodation Ordinance No.22098-03-2016 b. In making findings, the Director may grant with alterations or conditions, reasonable accommodations, if the Director determines that the applicant's initial request would impose an undue financial or administrative burden on the City, or fundamentally alter a City program or law. The alterations or conditions shall provide an equivalent level of benefit to the applicant with respect to (a) enabling the person(s) with a disability to use and enjoy the dwelling, and (b) making the provision of housing for person(s) with a disability financially or practically feasible. 17-114 Written Decision a. The written decision of the Director on an application for an accommodation shall explain in detail the basis of the decision, including the Director's findings on the criteria set forth in Section 17-113. All written decisions shall give notice of the applicant's right to appeal and to request assistance in the appeal process as set forth in Section 17-115. The notice of the decision shall be sent to the applicant by certified mail and electronic mail, if the applicant's electronic mail address is known to the City. b. The written decision of the Director shall be final unless the applicant files an appeal to the City Manager's designee in accordance with Section 17-115. Nothing herein shall prohibit the applicant, or persons on whose behalf a specific application was filed, from reapplying for an accommodation based on additional grounds or changed circumstances. Nor shall this provision be construed to affect in any way the rights of a person to challenge the denial of a request for reasonable accommodation as violating the Fair Housing Act,the ADA or any other applicable state, federal or local law. c. If the Director fails to render a written decision on the request for accommodation within the thirty (30) calendar day period established in Section 17-112, the accommodation request shall be deemed granted. d. A request for accommodation stays all proceedings in furtherance of the enforcement of any requirement that is the subject of the request. An accommodation request does not affect an applicant's obligation to comply with other applicable regulations not at issue in the requested accommodation. e. The Director shall retain, for the duration of the accommodation and at least five (5) years thereafter, written records of each request and all related records, including the City's responses and decisions. 17-115 Appeals a. An applicant, or a person on whose behalf an application was filed, may appeal the written decision to deny or grant an accommodation with alterations or conditions or a denial of the accommodation no later than thirty (30) calendar days from the date the decision is mailed. Page 6 of 8 Chapter 17,Art. 3 Div.V:Reasonable Accommodation Ordinance No.22098-03-2016 b. An appeal must be in writing (or reduced to writing as provided by subsection c, below) and include grounds for appeal. Any personal information related to the disability status identified by the applicant as confidential shall be retained in a manner so as to protect the privacy rights of the applicant and shall not be made available for public inspection unless required by the Texas Public Information Act. Any information received regarding the disability status identified, including but not limited to medical records, will be returned to the applicant within ten (10) days of the decision of the City Manager's designee. c. If an applicant needs assistance appealing a written decision, the City will provide assistance transcribing a verbal request into a written appeal to ensure that the appeals process is accessible. d. An applicant shall not be required to pay a fee to appeal a written decision. e. An appeal will be decided by the City Manager's designee. In considering an appeal of a decision of the Director, the City Manager's designee shall consider (a) the application requesting the accommodation, (b) the Director's decision, (c) the applicant's written statement of the grounds of the appeal, and (d) the provisions of this Division, in order to determine whether the Director's decision was consistent with applicable fair housing laws and the required findings in section 17-113. f. If a written decision on the appeal is not rendered within thirty (30) calendar days from the date the appeal is received, the requested accommodation shall be deemed granted. g. The decision of the City Manager's designee is final. SECTION 2. This ordinance shall be cumulative of the Code of the City of Fort Worth (2015), as amended, except where provisions of this ordinance are in direct conflict with the provisions of this ordinance and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 3 All rights or remedies of the City of Fort Worth, Texas, are expressly saved as to any and all violations of the Code of the City of Fort Worth, or any other ordinances of the City, that have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil or criminal, whether pending in court or not under such ordinances, Page 7 of 8 Chapter 17,Art. 3 Div.V: Reasonable Accommodation Ordinance No.22098-03-2016 same shall not be affected by this ordinance, but may be prosecuted until final disposition by the courts, unless the City enters into a written agreement to cease prosecution. SECTION 4. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining sections, paragraphs, sentences, clauses or phrases of this ordinance, since the same would have been enacted by the City Council without the incorporation herein of any such unconstitutional phrase, clause, sentence,paragraph or section. SECTION 5. That this ordinance shall take effect upon adoption. APPROVED AS TO FORM AND LEGALITY: Mel ni da Ramos, ary J. Kay r Sr. Assistant City Attorney City Secretary ADOPTED &EFFECTIVE: March 1, 2016 Page 8 of 8 Chapter 17,Art.3 Div.V:Reasonable Accommodation Ordinance No.22098-03-2016 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 3/1/2016 - Ordinance No. 22098-03-2016 DATE: Tuesday, March 01, 2016 REFERENCE NO.: **G-18676 LOG NAME: 12EBBYS SETTLEMENT SUBJECT: Adopt Ordinance Amending Chapter 17, Human Relations, Article 3, Discrimination, to Add Division 5, Reasonable Accommodation or Modification for Residential Uses and Authorize Settlement of All Claims Related to the Lawsuit Entitled United States of America, Plaintiff, and Ebby's Place, LLC, and Ben Patterson, Plaintiff-Intervenors v. City of Fort Worth, Texas, Civil Action No. 4:15-CV-00304-0, in the United States District Court for the Northern District of Texas, Fort Worth Division and Authorize Execution of a Consent Decree and All Agreements Necessary to Complete the Settlement (COUNCIL DISTRICT 2) RECOMMENDATION: It is recommended that the City Council: 1. Adopt Ordinance Amending Chapter 17, Human Relations, Article 3, Discrimination to Add Division 5, Reasonable Accommodation or Modification for Residential Uses 2. Approve the below-described settlement of all claims related to the referenced lawsuit and authorize payment of$135,000.00 to Ben Patterson and Ebby's Place, LLC, (Complainant) and $10,000.00 to the United States; and 3. Authorize execution of a consent decree and any Agreements necessary to complete the settlement. DISCUSSION: This litigation involves the Plaintiffs' allegations that the City violated the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) when it denied the Complainant his requested accommodation to operate a sober house known as Ebby's Place at 6245 Granite Creek Drive with eight residents. The City's settlement with the Plaintiffs will be in the form of a consent decree that will be effective for three years and provides: the City shall not violate federal law related to housing for the disabled, allows the Complainant to have six residents and a manager at the sober house, compensates the Complainant $135,000.00 and the United States $10,000.00, provides for the dismissal and expungement of records related to citations issued to the Complainant for alleged zoning violations at the sober house, requires the City to establish a process for citizens to request accommodations when necessary because of disability, establishes training, reporting and records retention requirements and establishes a compliance officer. Additionally, there will be parking restrictions at the sober house and contact information for the manager must be provided to the City. The City denies the Plaintiffs allegations, does not admit wrong-doing and the Agreement does not constitute a finding against the City that it violated the FHA or ADA or discriminated on the basis of disability. The proposed ordinance establishes a formal procedure for individuals with disabilities seeking equal access to housing to request reasonable accommodation in the application of the City's land use and LoRname: 12EBBYS SETTLEMENT Page 1 of 2 zoning standards, regulations, policies and procedures and establishment of relevant criteria to be used when considering such requests to ensure prompt, fair and efficient handling of such request in accordance with statutory mandates, including the reasonable accommodation mandate of the FHA and ADA. The proposed ordinance provides for: an application process, applicability and effect of an accommodation, definitions, review authority of the Planning and Development Director, required findings to grant an accommodation, a written decision and an appeal to the City Manager's designee. This M&C does not request approval of a contract with a business entity. FISCAL INFORMATION/ CERTIFICATION: The Risk Management Fiscal Year 2016 Budget includes appropriations of$1,059,059.00 in the Lawsuit Payments/Settlement Account. As of February 11, 2016, $84,981.00 of those appropriations have been expended. Upon approval of these recommendations, the Director of Finance certifies that funds are available in the current operating budget of the Risk Management Fund, as appropriated. FUND IDENTIFIERS (FIDs): TO Fund Department Accoun Project Program ctivity Budget Reference # moun ID ID Year Chartfield 2 FROM Fund Department ccount Project Program ctivity Budget Reference # Amount ID ID Year Chartfield 2 11)601111 0147120 15520104 1 1 2016 $145,000.00 CERTIFICATIONS: Submitted for City Manager's Office by_ Fernando Costa (6122) Originating Department Head: Sarah J. Fullenwider (7606) Additional Information Contact: Christopher B. Mosley (7603) Logname: 12EBBYS SETTLEMENT Paae 2 of 2