Re: PLNBOA2012-00420 Shawn McMillion - Appeal of decision by the CED Director denying a reasonable accommodation to allow the keeping of a horse on property at 2307 South 600 East, Salt Lake City.
This letter is the Record of Decision relative to Case PLNBOA2012-00420 regarding the variance request as referenced above.
The case was heard by the Salt Lake City Appeals Hearing Office, Craig Call, on July 31, 2012. A period of four weeks was allowed after the hearing for the submittal of additional information and comment on the issues. Both the City and Ms. McMillion submitted materials during that time, and an extensive record has been made of the issues and factors involved. My decision must be based on the law related to the issues brought before me, and I can only rule in a manner that is consistent with court cases, statutes, ordinances, and rules that apply.
After reviewing the evidence, documents, and testimony presented, I hereby deny the request for a reasonable accommodation based on the following findings:
1. This matter is heard as a matter of first impression, since involves an administrative decision by the city staff. Under such a review, the decision which is appealed is afforded no deference, and the hearing officer makes a decision based on the information provided, as if no previous decision had been made on the issue.
2. The matter as brought was described as a nonconforming use permit issue. Without objection by the City's representatives at the hearing or the appellant, this matter was heard as if it had been described as a request for a reasonable accommodation. It is not appropriately decided as a non-conforming use permit issue, a variance issue, or an appeal from the interpretation of the land use ordinances. The City had no objection in my considering the matter in this manner, as a request for a reasonable accommodation.
3. Under the City's Reasonable Accommodation Administration Policy (the "Policy"), the Department of Community and Economic Development may make a reasonable accommodations as necessary to comply with the Americans with Disabilities Act, the Federal Housing Act, and other related federal and state laws and regulations.
4. In considering a reasonable accommodation, I am to take into consideration several factors in evaluating the need and reasonableness of a requested accommodation. These factors include (1) the necessity of the proposed accommodation or living facility in order to afford a disabled person an equal opportunity to live in a particular area; (2) whether any of the accommodated or facility residents will pose a direct threat to health or safety; (3) whether the proposed accommodation or facility complies with other building, health and safety requirements; (4) whether the proposed accommodations would result in substantial physical damage to the property or others; (5) whether the proposed facility provides adequate off street parking for its residents; and (6) the financial, administrative, or other impacts or burden the accommodation or facility would have on the impacted neighborhood, program, or administrative program.
5. An application for a reasonable accommodation may be denied if it is incomplete, lacks the necessary documentation, or for any other reason provided by law, including but not limited to the fact that the requested accommodation would (1) fundamentally alter the nature of a service program or activity; (2) constitute a fundamental alteration of city ordinance; or (3) impose an undue financial or administrative burden on the City.
6. The essence of this matter is whether or not Ms. McMillion should be allowed a reasonable accommodation to the provisions of the land use ordinance at Section 8.01.1O(C), which provides that horses cannot be kept within the City limits without obtaining a permit from Salt Lake County Animal Services. Further, City Code provides that permits for horses may not be issued for a residential area and may only be issued in "areas zoned as agricultural districts under section 21A.32.050".
7. Ms. McMillion has stated that she has a disability, a fact that has not been disputed by the City or others opposing her request for a reasonable accommodation at this stage in its consideration, though the City has reserved the right to raise that issue if my decision is appealed. She has also provided statements from medical professionals indicating that her keeping a horse has a beneficial impact on her disability. She has stated that she believes that the horse can be maintained in a manner that does not unduly disrupt the enjoyment of neighboring properties and does not impose any harsh or inhumane treatment on the animal she keeps and cares for. The record also contains statements and communications from others in the neighborhood that they do not object to having the horse in the neighborhood.
8. Ms. McMillion also alleges that federal law entitles her to keep a horse because she has acquired the horse from a federal agency. I do not agree with that conclusion, based on the documentation provided.
9. The City responds that allowing a horse in the neighborhood will impose a negative impact on the neighbors in terms of smell and noise, detract from the overall residential quality and character of the neighborhood, and potentially damage the property upon which the horse is kept as well as adjacent properties. The record also includes evidence that some neighbors do object to the request and oppose allowing a horse on the property involved. I have relied on a memorandum from the City Planning Office to me, dated August 2, 2012 and included in the record of this matter, as additional information related to the unreasonableness of allowing a full-sized horse on a small residential lot in an urban setting such as Ms. McMillion's neighborhood.
10. Since the reasonable accommodation policy relies to a significant extent on federal statutes, it is relevant and helpful to consider the case law and interpretation of those statutes with regard to equine therapy and the keeping of horses for restorative and therapeutic reasons. Ms. McMillion has provided information about miniature horses and their use in therapy in a residential setting, and related to equine therapy when used in a setting that appears to be typical of those where horses are normally housed and enjoyed. She has provided no documentation that the relevant federal acts have ever been used to justify an accommodation of a horse on a relatively small residential lot where land use ordinances would otherwise prevent the keeping of horses.
11. The city, on the other hand, has provided documentation that no such accommodation has been found appropriately granted under such circumstances. In its memorandum dated August 15, 2012, the Office of the City Attorney provides an extended discussion of how miniature horses have been considered and not considered as needed for treatment of the disabled, and the limited circumstances where the availability of such animals have been deemed reasonable and needed for treatment of disabilities. I have relied upon this memorandum, which is in the record, in my decision.
12. Based on the criteria in the Reasonable Accommodation Policy, I deny the reasonable accommodation based on the fact and law stated above. I find that a denial is consistent with the Policy in that this request is not essential to allow Ms. McMillion an equal opportunity to live in a particular area; that the accommodation will pose a direct threat to health or safety; that the proposed accommodation or facility does not comply with other building, health and safety requirements such as the land use ordinance; that the proposed accommodation could result in substantial physical damage to the property or others; and the other impacts or burden the accommodation or facility would have on the impacted neighborhood, program, or administrative program.
13. I also deny the reasonable accommodation under other criteria listed in the Policy, including that allowing a full-size horse in the area would fundamentally alter the nature of the city ordinance. Since the inception of land use regulation, the separation of agricultural activities from urban neighborhoods has been a common objective of zoning ordinances. Based on my experience in the land use arena, I am aware that it is not uncommon for large animals to be allowed in areas zoned for large lots by some communities, but in those instances where residences and large animals are both allowed, the minimum distances between houses and horses far exceed what would be possible on the McMillion property in an urban neighborhood.
14. This decision is effective as of September 10, 2012 as it has been reduced to writing on this date.
Any person adversely affected by any decision of the Appeals Hearing Officer may, within thirty (30) days after the date of the written decision, file a petition for review with the Utah State Third District Court.
If you have any questions or concerns, please contact Lex Traughber at the Salt Lake City Planning Office.
Craig Call Appeals Hearing Officer