16 August, 2013 (All day)
After exhausting every option available to them, the Morgan City Council approved a conditional use permit for the Alpha Counseling and Treatment center.
It was with heavy hearts that the council unanimously voted to approve the center on the condition that the proprietors of the treatment center sign an agreement limiting the rights that would otherwise be guaranteed to them under federal law.
This appeal came through the city offices after the initial request was denied by the Morgan City Planning Commission. The planning commission denied the application because it was cloudy and lacked details. The applicant clarified these issues in their appeal, which was reviewed ahead of time by City Attorney Gary Crane. A proposed agreement was later reached.
“We have gone through this a million times to see if we could tweak this somehow to even regulate them by business license, but that just wasn’t a possibility,” Crane said. Unfortunately, federal laws including the Fair Housing Act and the Americans with Disabilities Act trump any local laws, rendering our city conditional use ordinance “useless.”
“Whenever you are dealing with a ‘protected class,’ federal laws trump everything,” commented Crane. Conditions on residential units should be private arrangements between individuals, but this is not the case here. “This is one of those instances that has a lot of case law surrounding it. I will tell you straight up that your local ordinance is outdated.”
There were changes this year to the provisions for residential facilities for handicapped persons and residential facilities for the elderly on a state level. These ordinances should have been updated after the last legislative session to reflect the new law mandating this be a permitted use in every residential zone.
“There are never public hearings regarding these facilities because it gives the public a false impression that they can change the outcome,” Crane said. “We have seen examples in West Valley and Draper. Both cases cost the city dearly and the homes were ultimately allowed anyway.”
Federal officials determined that individuals have a difficult time finding adaptive housing. Because of that, federal law has expanded the Fair Housing Act to include areas such as alcohol abuse, drug abuse and sex offenders as part of the protected class. The city must, by federal law, provide reasonable accommodation for adaptive housing.
If the council decided to deny the facility reasonable accommodation, they could be held liable for penalties like lost profits, lost opportunity costs and attorney’s fees, which can amount to as much as the judgment.
Crane wearily said, “I hate to be the bearer of bad news. Generally, if you want to do something, whatever it is you want to do we try to find a way for it to happen. That’s our job. It is also our job to warn you when you are about to step into a hole, and this is a financial hole.”
Jody Burnett represented Draper and West Valley cities in almost identical cases. He advised our city attorney to sit down with the applicant and tighten the nuts and bolts as much as possible. This way you can still at least regulate what happens at this particular facility.
This agreement becomes the conditional use agreement. Signing this agreement waives certain rights the federal government would otherwise guarantee. If the treatment facility violates anything within this agreement, they could be immediately shut down.
The proposed agreement limits the number of individuals that can be cared for at one time and limits the type of individuals who may be housed at this facility.
The document states that this facility will be a residential placement facility for moderate male behavior disorders. The types of individuals who will be in the facility will be those individuals who would function just above the proctoring care level, which is similar to the foster care system.
It states that under no circumstances shall the occupants be under treatment for sexual deviance or offenses, violence, drugs, alcohol use or other similar types of criminal or deviant behavior that may present a threat to the peace or safety of residents in or around the facility.
Crane emphasized that the Alpha treatment center did not have to agree with this. Under federal law, they could have any of these deviants living there, but they are agreeing to these restrictions.
The center will be allowed to have 12 residents at a time. From 6 a.m. to 10 p.m. there will be four staff members in the home. From the hours of 10 p.m. to 6 a.m. there will be two staff members in the home. They must also abide by all parking restrictions; anything that applies to other residential units applies to them. The home must be maintained, lawns trimmed, weeds controlled, etc.
Councilwoman Shelly Betz clarified that this agreement is not transferable. Even if ownership changes, the facility must be shut down. Betz also wanted to make clear that if an individual living there damaged property or injured someone, he would be immediately removed from the facility.
Even after clarification, each council member was visibly shaken over the decision they knew they would have to make.
Councilman Tony London posed the question, “So how do we control this? You just can’t let these things go willy nilly.” Crane replied that once it is a permitted use, the only provisions are that they comply with the terms set forth by the Division of Human Services and maintain a property license.
Resolution #13-38 was ultimately passed, but will still face approval from the State of Utah before they can proceed.
As the meeting was adjourned, some residents left in tears. Others had heated words for the representatives of the Alpha Counseling and Treatment center.
Council members said it was one of the hardest decisions they have ever had to make. It was a very emotional issue for them and not one they came by lightly.