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From the town manager

Keimach: Neighborhood concerns rise in the E. Mountain View Road neighborhood

The town, through the mayor and council and town staff, respects the rights of all, and fully understands and supports the Paradise Valley community’s desire to protect and enforce the town’s zoning especially its R-43, single-family zoning.
– Jill Keimach, Town Manager

There has been considerable concern by neighbors of a new application the town recently received for a “reasonable accommodation” pursuant to Arizona and federal fair housing laws.

The application was to operate a behavioral health group home for up to 10 persons and up to six staff in the 5000 block of East Mountain View Road for veterans who are disabled, for those recovering from substance abuse, and those aging out of foster care.

This application was withdrawn verbally late Thursday with written confirmation expected on Monday.

I would like to share the bigger picture and process since this doesn’t happen very often and is unique to Paradise Valley where neighborhood preservation is one of the highest values of the mayor and full council, community and staff.

The Town of Paradise Valley in its predominate R-43 zoning defines a single-family home as having “no more than five unrelated individuals” living together.

Applicants that want to open a care facility or ”house more than five unrelated individuals” are initially prohibited in Paradise Valley because of this requirement in the town’s zoning ordinance, unless, however, they are otherwise permitted to do so under federal law (which overrides local laws). This was precisely the issue raised by the recent application.

Applicants that want to have more than five unrelated individuals living together have historically cited federal law, and specifically the 1968 Fair Housing Act, to argue for modifications to our local zoning regulations on the number of individuals who can live in a single-family home.

If it is determined that based on the facts of a particular application the federal Fair Housing Act requires the town to modify its regulations, the Town of Paradise Valley must grant a “reasonable accommodation.”

Such federal requirements often mandate modifications to the town’s zoning and land use regulations, policies, and practices to provide an individual with a disability an equal opportunity to use and enjoy a dwelling, where such an accommodation does not cause an undue financial or administrative burden or does not result in a fundamental alteration of the town’s zoning program, as those terms are defined in federal fair housing laws and interpretive case law.

Most communities in Arizona have responded to federal law by having a checklist to mechanically allow different types of housing situations in residential neighborhoods depending on whether they can “check the box” regarding purported individual protections under federal law.

While every community in our state follows the same federal laws, the Town of Paradise Valley carefully examined the federal law and passed a resolution in 2017 that added a process where the public is advised of the application and an independent hearing officer with knowledge of the applicable federal laws can analyze the applicants’ position and determine whether any form of accommodation is necessary or required.

This process operates independently of the Town Council and the town’s appointed boards and commissions, which is consistent with the guidance provided under the applicable federal laws.

Although the mayor and council have been aware of and have been following the status of this application, they cannot legally decide these types of reasonable accommodation applications or insert themselves into the hearing process because federal law overrides local laws.

Similarly, the Board of Adjustment, Planning Commission, or Town Council also cannot hear these types of requests. The town’s elected or appointed officials and staff have no ability to influence or interfere with the process or the Fair Housing Act.

The independent judge or hearing officer process created by the town in 2012, and modified in 2017 through Resolution 2017-15, complies with the Fair Housing Act by having the review outside of the typical local government, Planning Commission, Board of Adjustment and Town Council process.

This process also includes forms to be completed by applicants, a reasonable fee, and appointed a judge/hearing officer to review the application, hear arguments and consider these types of applications.

The changes made in 2017 implemented a required notice to the residents within 1,000 feet of applicant’s proposed property to give early notice of an application so that the nearby neighborhood could provide additional data to the town staff and hearing officer.

PV residents have most recently used this new noticing to offer additional and important information to assist in the review of the recent application.

The town and the neighborhood share the same values as the town has an interest in maintaining our local zoning regulations, so ideally we work together to provide due process, respect of the federal Fair Housing Act, and preserve the quiet enjoyment of the neighborhood.

Assuming this latest application withdrawal is confirmed in writing by Monday evening, the process will cease.

Generally, for future resident information, the process begins with an application submitted to the town and then follows the process outlined below (subject to alterations consistent with the law as determined by the hearing officer):

  1. Town staff ask clarifying questions without judgment on the merits of the application.
  2. Town requests appointment of an independent hearing officer for the case.
  3. Once the application is deemed complete, within five days the applicant must inform all property owners within 1,000 feet of their plans for the property.
  4. The town hires an expert witness to argue whether a particular application falls under federal law (whether those to be housed are disabled or otherwise protected under federal law). In the Mountain View case, the town hired an expert several weeks ago who examined the application. Based on the expert’s review, the town was prepared to argue that the applicant failed to show that those intended to be served were actually disabled.
  5. The town and applicant hold a scheduling meeting with the hearing officer to outline the schedule for a decision within 30 days. This meeting occurred on Thursday, Aug. 6, 2020 at 4 p.m. At this hearing the applicant verbally stated their intention to withdraw the application since they did not want to come into a great neighborhood and disrupt it. The hearing officer gave the applicant until Monday, Aug. 10 at 4:30 p.m. to put the withdrawal in writing. If the hearing officer does not receive the withdrawal in writing, the scheduling conference will quickly resume and the public comment period that ended on Aug. 10 will be extended.
  6.  In prior cases the hearing officer did allow for some public input during the hearing process. If the current application had continued, the town staff would expect a similar process to be used.
  7. Once the briefs and arguments of the applicant, the town staff, and interested parties have been completed pursuant to a briefing schedule, the hearing officer often takes a few days to review all of the information before carefully making a decision that is consistent with the requirements of federal law.
  8. After the hearing officer makes a decision, any of the parties may challenge that decision through legal actions in federal or local courts.

The town, through the mayor and council and town staff, respects the rights of all, and fully understands and supports the Paradise Valley community’s desire to protect and enforce the town’s zoning especially its R-43, single-family zoning.

Please rest assured that the town will continue to take steps at all times to support the town’s zoning while complying with all applicable laws, including federal laws. Should you have any questions, please the Planning Department at 480-348-3693 or planning@paradisevalleyaz.gov.

Editor’s Note: Jill Keimach is the Paradise Valley Town Manager.