Sec. 3.23. Reasonable Accommodation

3.23.1. Purpose

This section provides a procedure for making requests for reasonable accommodation to land use and zoning regulations, policies, practices, and procedures of the City and County of Durham to comply fully with the intent and purpose of Federal laws.

3.23.2. Applicability

A. This section shall apply to those personsClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. who are defined as disabled or handicapped under Federal law. A personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. recovering from substance abuse is considered a personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. with a disability or handicap; however, a personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. who is currently engaging in the illegal use of controlled substances is not.

B. A request for a reasonable accommodation may be made by any personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. with a disability or handicap, his or her legal representative, or a provider of housing for personsClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. with disabilities or handicaps in the city’s and county’s land use and zoning regulations, when the application of such may act as a barrier to affording such personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity.(s) equal opportunity to use and enjoy a dwelling in accordance with the law.

C. A request for a reasonable accommodation may include a modification or exception to the rules, standards, and/or practices for the siting, developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land., and use of housing or housing-related facilities in this ordinance, that would eliminate regulatory barriers and provide a personClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. with a disability or handicap an equal opportunity to a dwelling of his or her choice.

D. Nothing in this section requires personsClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. with disabilities or handicaps, or operators of family care homesClosed A residential facility as defined in NCGS § 160D-907., or group homesClosed A dwelling that provides room and board for more than six, but less than 13 individuals who as a result of age, illness, handicap or some specialized program, require personalized services or a supervised living arrangement in order to assure their safety and comfort. Additional requirements may be imposed by the North Carolina Building Code. for personsClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. with disabilities, or handicaps acting or operating in accordance with applicable zoning, licensing or land use laws or practices, to seek reasonable accommodation under this section.

3.23.3. Other Regulatory Obligations

A reasonable accommodation shall not affect an individual’s obligations to comply with other applicable regulations not at issue in the requested accommodation.

3.23.4. Pre-Application Conference

If an individual needs assistance in making the request for reasonable accommodation, the Planning Department will provide assistance to ensure that the process is accessible. Applicants seeking reasonable accommodation may request a pre-application conference with the Planning Director or designee to discuss the procedures, standards, and regulations applicable for submittal of an application. Such requests shall be made at least 10 days prior to the date of submittal.

3.23.5. Application Requirements

A. An application for reasonable accommodation shall be submitted in accordance with paragraph 3.2.4, Application Requirementss. In addition, the following information shall be provided by the applicant:

1. The current actual use of the property;

2. The basis for the claim that the applicant is considered disabled or handicapped under Federal law;

3. The UDO provision(s) or regulation(s) from which reasonable accommodation is being requested; and

4. An explanation of why the reasonable accommodation is necessary to make the specific property available for the individual.

B. An application for a reasonable accommodation under this section shall be submitted to the Planning Director or designee.

3.23.6. Notice and Public Hearings

Once the application has been determined complete, the Planning Director or designee shall schedule a public hearing and give notice as set forth in paragraph 3.2.5, Notice and Public Hearings.

3.23.7. Burden of Proof

The applicant seeking reasonable accommodation shall have the burden of presenting evidence sufficient to allow the Board of Adjustment to make the findings set forth below, as well as the burden of persuasion on those issues.

3.23.8. Action by the Planning Director

The Planning Director or designee shall provide the Board of Adjustment with a copy of the application and all relevant materials pertaining to the request prior to the public hearing.

3.23.9. Action by the Board of Adjustment

A. Each decision shall be accompanied by a written finding of facts by the Board of Adjustment which specifies the reasons for the decision; and

B. The Board of Adjustment may prescribe whether the reasonable accommodation is granted to the applicant or shall be allowed to pass with transfer of property.

C. The Board of Adjustment may approve the request, deny the request, or continue the request. In approving the request, the Board of Adjustment may prescribe reasonable and appropriate conditions provided that the conditions are reasonably related to the request.

3.23.10. Findings

A. In granting a reasonable accommodation request, the Board of Adjustment shall find based on competent, material, and substantial evidence, that the proposed accommodation:

1. Will be used by an individual or individuals with a disability or handicap protected under Federal law;

2. Is "reasonable." An accommodation is reasonable if it will not undermine the legitimate purposes and effects of existing zoning regulations, and if it will not impose significant financial and administrative burdens upon the city or county and/or constitute a substantial or fundamental alteration of the ordinance provisions; and

3. Is "necessary." An accommodation is necessary if it will provide direct or meaningful therapeutic amelioration of the effects of the particular disability or handicap, and it will afford handicapped or disabled personsClosed Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. equal opportunity to enjoy and use housing in residential districtsClosed Any zoning district with the "R" designation, (RR, RS-20, etc.), including the PDR District. in the city or county.

B. The Board of Adjustment shall issue a written order on a request for reasonable accommodation within 60 days of the date of the quasi-judicial decision.

3.23.11. Appeal

AppealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from final action by the Board of Adjustment on a reasonable accommodation request can be taken by filing a petition in the nature of certiorari with the Durham County Superior Court.