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HomeMy WebLinkAboutMattick memo to CC RE centers ATTORNEY PRIVELIDGE 2-15-16MEMORANDUM To: City of Orono From: Campbell Knutson, P.A. Date: 2/15/2016 Re: Regulating Treatment-related facilities Issue The City requested an opinion on whether, and to what extent, they could regulate things like detox, rehab, and chemical dependency treatment facilities, sex offender treatment and residency programs, and halfway houses. Analysis The City’s inquiry can be broken up into three separate subjects: residency assistance programs, outpatient assistance programs, and sex offender residency. I. Residency Assistance Programs The term “residency assistance program” is being used broadly here to refer to any type of treatment or life assistance program which operates by allowing an individual to live for a period of time at the assistance facility, rather than providing the treatment or assistance on an out-patient basis or at the individuals own home. The Minnesota Statutes explicitly govern the treatment of residency assistance programs under residential zoning code provisions. Under Minnesota Statutes §§ 462.357, Subd. 8 & 245A.11, Subd. 3, a state licensed residential facility and a licensed residential program with 7-16 residents must be considered a permitted multi-family residential use for purposes of zoning codes and other land use regulations. The statutes also state (somewhat contradictorily) that a city may require conditional or special use permits for such uses, but “no conditions shall be imposed on the facility which are more restrictive than those imposed on other conditional uses or special uses of residential property in the same zones, unless the additional conditions are necessary to protect the health and safety of the residents of the residential facility.” Under Minnesota Statutes §§ 462.357, Subd. 7 & 245A.11, Subd. 2, a state licensed residential facility, a housing with services establishment, or a licensed residential program serving six or fewer people must be considered a permitted single-family residential use for purposes of zoning codes and other land use regulations. There are no conditional or special use alternatives for facilities with six or fewer residents. A housing with services establishment includes assisted living homes and houses for the homeless. Based on the legislative history of Minnesota Statutes §§ 462.357 & 245A.11, a “state licensed residential facility” and a “residential program,” are likely the same thing. Under Minnesota Statutes § 245A.02, Subd. 14, a “residential program” is “a program that provides 24-hour-a-day care, supervision, food, lodging, rehabilitation, training, education, habilitation, or treatment outside a person's own home.” The State licenses a wide variety of residential programs, including chemical dependency treatment programs, detox programs, supported living facilities for people with developmental disabilities, residential treatment mental health programs for adults, and the Minnesota sex offender programs. Thus, it is likely that all of these programs fall under the provisions of Minnesota Statutes §§ 462.357 & 245A.11 and must be treated as a permitted use in a single-family and multi-family residential districts. Further, pursuant to Minn. Stat. 245A.11, Subd 4., the legislature mandates that the Commissioner of Human Services consider factors like “the population, size, land use plan, availability of community services, and the number and size of existing licensed residential programs” when considering whether to grant a license, and is restricted from granting a license “to any residential program if the residential program will be within 1,320 feet of an existing residential program,” unless the City approves or the program serves six or fewer people. Therefore, it appears that the legislature has preempted cities from imposing zoning-related restrictions related to the specific use of a property for a residency assistance program. Cities would still be free to pass zoning restrictions that apply equally to all uses within a specific district, including residency assistance programs. As part of our review, the City asked us to identify any provisions of the City’s zoning code that might currently allow for a residency assistance program. Currently, three provisions of the City Code could arguably allow for these types of programs: Under § 78-624(2), an “assisted living facility” is a conditional use in a Residential Planned Unit Development District. Although the section refers to an assisted living facility “as defined in this chapter,” the Zoning Code does not define the term. Under § 78-734, “Nursing homes, hospitals, rest homes or retirement homes,” are a conditional use in an Office and Professional Business District (B-4). None of these terms are defined in the Zoning Code. Under § 78-763, “Clinics” are a permitted use in a Limited Neighborhood Business District (B-5). One generally thinks ‘outpatient,’ when they hear the term ‘clinic.’ However, in the Definitions section of the Zoning Code, “Clinic for human care on an outpatient basis only” is defined as “a place where a group of licensed medical practitioners provide medical treatment or advice on an outpatient only basis.” By not using the full term “clinic for human care on an outpatient basis only” in § 78-763, the argument can be made that the Code is opening up permitted uses to impatient clinics as well. II. Outpatient Assistance Programs Unlike residency assistance programs, there are no state statutes requiring a City to allow outpatient assistance programs in the City. A City is arguably free to ban such programs altogether, provided it has a rational basis for doing so that is related to public health, safety, morals, or welfare. As part of our review, the City asked us to identify any provisions of the City’s zoning code that might currently allow for an outpatient assistance program. Currently, several provisions of the City Code could arguably allow for these types of programs: Under § 78-624(2), an “assisted living facility” is a conditional use in a Residential Planned Unit Development District. Although the section refers to an assisted living facility “as defined in this chapter,” the Zoning Code does not define the term. Under § 78-644, a “professional office and offices of a general nature,” and “clinics for human care on an out-patient basis only” are conditional uses in a Retail Sales Business District (B-1). “Clinic for human care on an outpatient basis only” is defined as “a place where a group of licensed medical practitioners provide medical treatment or advice on an outpatient only basis.” Under § 78-704, “clinics for human care on an out-patient basis only” are conditional uses in a Shopping Center Business District (B-3). Under § 78-734, “Nursing homes, hospitals, rest homes or retirement homes,” are a permitted use in an Office and Professional Business District (B-4). None of these terms are defined in the Zoning Code. Under § 78-734, a “professional office and offices of a general nature,” are a conditional use in an Office and Professional Business District (B-4). Under § 78-763, “Offices” and “Clinics” are a permitted use in a Limited Neighborhood Business District (B-5). Under § 78-793, “Offices (business and professional)” are a permitted use in a Highway Commercial District (B-6). Under § 78-822, an “Office” is a permitted use in an Industrial District (I-1). Additionally, Orono has a “Home Occupation” Ordinance, which allows a resident to run certain types of businesses out of their home, so long as the home is the primary use of the property. Although this Ordinance prohibits “medical clinics” from being conducted as home occupations, as discussed above, the term “clinic” is not defined in the Code. Thus, there is room to argue that outpatient assistance programs are not clinics and would be permitted as a home occupation. III. Sex Offender Residency The constitutionality of a law limiting the residency of convicted sex offenders has been a topic of debate in state and federal courts. In 2015, California’s Supreme Court and a Federal District Court in Michigan both struck down such legislation. However, in 2005 the United States Court of Appeals for the 8th Circuit upheld an Iowa law imposing residency restrictions for sex offenders who committed crimes against children. Doe v. Miller, 405 F.3d 700 (8th Cir. 2005). Thus, it is possible that a court in this jurisdiction considering a challenge to such a law would uphold such a law if the law is rationally related to a legitimate government purpose. A number of Minnesota cities have adopted residency restrictions for sex offenders, including the City of Duluth. Duluth’s Ordinance prohibits a predatory offender from living within 2,000 feet of any school, licensed childcare center, or public playground. However, Duluth’s law, unlike the Iowa Statute, is not limited to sex offenders who committed crimes against children, but instead applies to all sex offenders. Thus, there is an argument to be made that the law is not rationally related to the purpose of protecting children. Additionally, the constitutionality of a broader law banning all sex offenders from much/all of a city has not been considered by our courts.