Agenda - Council Work Session - 02/27/2018

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primary residence of the day care provider. This creates a loophole for providers to use a single-family home as a commercial daycare facility, which might not otherwise be allowable under a city zoning ordinance. Response: The Legislature should amend Minn. Stat. § 462.357, subd. 7, to clarify that a licensed day care facility serving 12 or fewer persons is considered a permitted single-family use only if the license holder owns or rents and resides in the home. LE-12. Residential Programs Issue: Minnesota's deinstitutionalization policy seeks to ensure that all people can live in housing that maximizes community integration. Minn. Stat. § 462.357, subd. 6a. states that "persons with disabilities should not be excluded by municipal zoning ordinance or other land use regulations from the benefits of normal residential surroundings." Minnesota cities support inclusion of people with and without disabilities in their communities, but these policies are best implemented with minimal encroachments on municipal zoning authority and positive working relationships between cities, care providers, and the state. On one hand, treating persons with disabilities differently generally raises questionable issues of disparate treatment with the Federal Fair Housing Act. On the other hand, without some regulation, cities are powerless to protect individuals with disabilities from a clustering of residential programs within one neighborhood. As the Department of Justice has stated, while density regulations are generally suspect, "if a neighborhood came to be composed largely of group homes, that could adversely affect individuals with disabilities and would be inconsistent with the objective of integrating persons with disabilities into the community." (Joint Statement of the Department of Justice and the Department of Housing and Urban Development.) To this end, and in upholding a state and local dispersal requirement, the Eighth Circuit Court of Appeals stated that the requirement was designed to ensure that people with disabilities "needing residential treatment will not be forced into enclaves of treatment facilities that would replicate and thus perpetuate the isolation resulting from institutionalization." Familystyle of St. Paul, Inc. v. St. Paul, 923 F.2d 91, 95 (8th Cir. 1991). City authority to regulate the locations of residential programs is limited by state statute and the federal Fair Housing Act (FHA), although Minn. Stat. § 245A.11, subd. 4, prohibits the Commissioner of Human Services from granting an initial license to a residential program of six or fewer people within 1,320 feet of an existing residential program in cities of the first class. In 2015, Minn. Stat. § 245A.11, subd. 4, was amended to clarify that the Commissioner of Human Services is required to approve licenses for "community residential settings" within 1,320 feet of existing residential programs. A "community residential setting" is commonly known as adult foster care. While this was the original intent of the legislature, statutory terms changed over the years; this amendment was to make various statutory references consistent. Sufficient funding and oversight is needed to ensure that residents living in residential programs have appropriate care and supervision, and that neighborhoods and residents of residential programs are not negatively impacted by high concentrations of these types of programs. As it stands now, there is nothing preventing clustering of League of Minnesota Cities 2018 City Policies Page 59