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ZBA-943 ApplicationNEW HANOVER COTINTY PLANNING & INSPECTIONS Application for SPECIAL EXCEPTION 230 Govemment Center Drive Suite I l0 Wilmington, NC 28403 910-79E-7165 phone 910-798-7053 fax www,nhcgov.com Petitioner Information Property Owner(s) If different than Appellant Subject Property Name 1-uc1+"&t Owner Name h<-l'wrrl 'fu.,^loviK fuA kr|ntnv't Sriro Address Company' 6roa /4Lar-r<Wwr pA Owner Narrb 2 Asr"g+ Pa.ulov,E Parcel ID tskt''lDeed &Lbrt,re- ladr/ss 2a{ t ) o r&,n Po',,+<- Bt,t d Address Area q(q.q(,1.3gDo City, Stste, zip ++iu Phone 1tQ'8tr.zoszPhone \L 219.e tsle, ZipCitv. Sde. qsl<ofuvr) &)Go,/+h . nzt- Email llrlail zPoulovkd {qr*:o . co rvr zBA- qql Case Numbcr I ltz lrr []: o' 1""' Date/Time receivcdi Received by: rSlall ()[lr ) APPLICATION OYERYIEW In order to assist petitioners through the process for requesting a special exception, petitioners are highly encouraged to attend a pre-application conference prior to application submittal. Petitioners are requested to review the Section 63.1 I of the Zoning Ordinance prior to submission, and advised to contact Planning Staff with any questions. Requests for special exceptions to any of the provisions of Section 63.1I of the Zoning Ordinance may be taken to the Board of Adjustment. The Board of Adjustment will hear and decide on the special exception in a quasi-judicial proceeding. The Board of Adjustment shall grant a special exception to any provision of this ordinance as a reasonable accommodation under the Federal Fair Housing Act ifthe Board finds by the greater weight ofthe evidence that the proposed special exception is: L "Reasonable." An accommodation will be determined to be reasonable if it would not undermine the legitimate purposes and effects of existing zoning regulations, and if it will not impose significant financial and administrative burdens upon the County and/or constitute a substantial of fundamental alteration of the County's ordinance provisions; and 2. "Necessary." An accommodation will be determined to be necessary if it would provide direct or meaningful therapeutic amelioration ofthe effects of the particular disability or handicap, and would afford handicapped or disabled persons equal opportunity to enjoy and use housing in residential districts in the County. A concurring vote of four-fifths (4/5) of members ofthe Board is necessary to grant a special exception. Unless otherwise published or announced, Zoning Board of Adjustment meetings are held on the 4s Tuesday of each month at 5:30PM in the Lucie F. Harrell Conference Room at 230 Government Center Drive. All meeting dates and application deadlines are published on the New Hanover County Planning website. Page I of2 tzit5 Sqmoary of Specid Exceptiotr Requestcd: Attor.,-, I perso"rs 1g live- at {oU Ric*wdsr,^ hri,J(- .\ppli(?rtiolr'l'ril(ki|lg ft rltrrrlrirtiolr FV PRE.APPL:rC+rrON C9NE9RENCE EIn order ro ^"irr p"titio@uest for special exceptiohighly. encouraged to auend a pre-application conference-prior to application submittar.special exceptions mtst be filed no later than 5:00pM onthe apprication deadrire d;,Board of Adjustmenl meeting. ns, petitioners are Applications flor prior to a Zoning ln the space below, please describe the request for the special exception, including what provision(s) ofSection 63' l 1 -from which the special exception is being requested. Applicants are advised to demonstratehow the special exception rcquest is reasonable *a -n"""st ry as aiscriuea on page t. ptease attachadditional sheets if necessary. of Applicant and/or ()wner I s Date Iit bel ief. helorr I rhthatIS tionICa conllssignaturem.'certif)rt dltEppl oftll thc informati (Jnplete tlprcscnted t5rh th1o of llt kno*and.v kdge PsSc 2 of2 l?il5 REOUEST FOR SPECIAL EXCEPTION that in form a ti<xr , Agent Information lo lb:istqA }aL b.;,u. .St8re, Zip +t it UC z.]' n.{-p .3\oo tzd,-o. oA"Usoan.rlEt Cei. Numb"r Relerefti: zIA - rt{ This docurnent was w,illl'ully executed on the day of A n]3se n91g that for quasi-judicial proceedings, either the landat the public hearing. 'lr6r' err.sr urs ranq owner or an attomey must be prcsent for the case The undersigned owner does hereby- appoint an authorized the agent described herein as their exclusive agentfor the purpose of petirioning N"* ir-o*i co;ili;;;;;;ce. speciar use permit, rezoning reques, and/orffi:ffii::Hltjj;:'ffil'J,:H;J-*:.p'p"'t'' o"JLo in t:h" "nactrei;;;;1;" Agenr is hereby 1' Submit a proper petition and the required supplementar information antr mareriarsl' Appeal at public meerings to gir" ."pr.r"nr"ii", *il"n'rirrents on beharf of r'e properry owner ffil#,,fi.,["fiH jff"j-l flali'without rlriiurio,' *irr, regard to uny -,r irr i.,ings directly or Ordinance. r iinslng out uf any_ petition applicabli to the N.* H*",,", Lountv Zoning .,1: ffi, 230 Govemment Center Drive Suite I l0 Wilrningron, NC 28403 91 0-79t-71 65 phone 910-798-7053 fa-r www.nhcgov.com ^91-,20 7I s)Owner{Properfy Subject Property TtuJau,:ls 0wncr Namc .{ddrtssg,+ At ,.t amc ()V i-(C Cily, Sirt., zlp tr-:itn; t5 ddrtnsAZ der\I $a q+z 6 vd Paftel lD Cjry, sr[r.. AptIe *: *fitl 15toZtlc phonc .81-)ZOS orrf:d yAhog .Co'?r Emril 2 { lrtIr1 D6t /Tintc re(civtdl \t: o- Rc<tlvcd by: Yv Ouner 2 04/14 I nlllt rur rr Email NEW HANOVERCOUNTY PLANNING & INSPECTIONS AATHORITY FOR APPOINTMENT OF AGENT I rSlitll () h ltpplicatiorr I t u(litl( lllftrrtnatiou Oxford House, Inc. requests a Special Exception from Section 63.11:l of the County Zoning Ordinance, which section limits the number of disabled persons that may live in a group home to six. Specifically, Oxford House requests that eight disabled persons be allowed to live at the Oxford House located at 5014 Richardson Drive in Wilmington. This Oxford House is known as Oxford House Smithcreek. It is home to 8 men. It is a single family detached, 4 bedroom, 3 bath, approximately 2000 square foot home, with a garage and sufficient additional driveway parking. As of the date of this application, Oxford House Smithcreek is located at t 131 N. Ken Ave. in the City of Wilmington. It has been in operation at I 131 N. Kerr Ave. for over 19 years. It is the longest operating Oxford House in the City of Wilmington and in New Hanover County. It is compliant with all City of Wilmington zoning ordinances. It is forced to move because the property is being taken by the Department of Transportation to widen Kerr Ave. New Hanover County's zoning ordinance defines Oxford Houses as a "group homes" pursu lt to the definition of same in the ordinance. Further, the residents of Oxford House are defined as "disabled persons" pursuant to the definition of same in the ordinance. WHAT IS AI\ OXFORD HOUSE Oxford Houses are homes for persons recovering from alcoholism and or drug addiction, who are no longer using alcohol or drugs. Oxford House is a self-run, seltsupported recovery home concept and standardized system of operation that served as the model for the self-run, self- supported group recovery homes authorized for start-up loans under $2036 of the Federal Anti- Drug Abuse Act of 1988, PL I 00-690. This legislation required each state to set aside $ I 00,000 in I STATEMENT OF JUSTIFICATION a revolving loan fund to make loans to recovering addicts and alcoholics to assist in the establishment of housing that is financially self-supported, democratically run, and immediately expels anyone who relapses. Many of over two thousand five hundred Oxford Houses in the United States were started with loans purswmt to this Act through contracts v/ith state govemments. Most of the over two- hundred and fifty Oxford Houses in North Carolina were started with loans pursuant to this Act through an ongoing contract with the State of North Carolina. Since 1990, the State of North Carolin4 through the Departrnent of Health and Human Services, has entered into annual contracts with Oxford House, Inc., the umbrella organization of the national network of Oxford Houses, to help establish and assist in the maintenance ofa statewide network of Oxford Houses. Each Oxford House is chartered by Oxford House, lnc., a 501(c)(3) nonprofit umbrella organization. Three basic conditions are required to obtain a charter: l). The house must be democratically self-run following the standard system of operation set forth in the Oxford House Manual; 2). The house must be financially self-supporting by the individual residents paying equal shares of household expenses in a timely manner, and; 3). The house must immediately expel any resident who returns to using alcohol or drugs inside or outside of the house. Oxford House, Inc.'s by-laws preclude it or its chartered houses from owning residential property, thus all Oxford Houses are rented. A group wanting to start an Oxford House behaves in the household rental market just like an ordinary family. It finds an available, suitable house and rents it by paying the first month's rent and security deposit to a willing landlord. Usually, these funds come from the above referenced start-up loans. Oxford House residents are encouraged to rent single family dwellings in good neighborhoods. 2 The houses operate autonomously, but must follow the procedures in the Oxford House Manual and adhere to the conditions of its charter. Each Oxford House has its own bank account. There are no dues or fees to Oxford House, Inc. by individual houses, but having a charter gives the houses technical assistance and support by Oxford House, Inc., including defense ofthe civil rights of every Oxford House. Oxford Houses are not substance abuse centers or halfuay houses. No treatment, counseling, therapy, or any kind of health care is provided. There is no house manager, paid staff, or other type of institutional personnel involved in the supervision or management of the house. Al[ decisions relating to the functioning of the house are made democratically. Each house manages its own finances. There is no required random testing for alcohol or drug use, nor are there any required rules relating to curfews. In an Oxford House residents live there by choice. Oxford House residents are considered to be the functional equivalent of a family for several reasons. First, all the residents have access to the entire house. Second, all the residents participate equally in the housekeeping functions ofthe house, such as chores and finances. Each resident, however, is responsible for his own food and cooking. Third, the quality of the relationship among the residents is one of emotional and mutual support and bonding giving each resident support in their recovery from alcoholism and providing an ameliorative therapeutic benefit toward recovery to each resident. Fourth, the living arrangement is not based upon a profit motive. Finally, there are no limits as to how long a resident can stay in Oxford House. The average length of stay, nationally, is about thirteen months. For more detailed information about Oxford House and its recovery program and the benefits thereof, see the Oxford House Manual enclosed herewith and incorporated herein by reference, and the Oxford House website at www,oxfordhouse.org. 3 4 The residents of Oxford House are considered "disabled persons" pursuant to the definition of same in the County's ordinance. Oxford House residents are a protected class under the Federal Fair Housing Act, and the American with Disabilities Act. See the Fair Housing Act (FHA), 42 U.S.C.3600 et. seq. Recovering addicts and alcoholics are specifically included within the definition of "handicapped" or "disabled" individuals under these Acts. See 42 U.S.C. 3602(h), and City of Edmonds, WA v. Oxford House, Inc. 514U.5.725 (1995): Oxford Howe v. City of St. Louis,77 F.3d 249 (8th Cir. 1996); United States (on behalf of Oxford House) v. Village of Palatine,3T F.3d 1230 (7th Cir. 1994); United States (on behalf of Oxford House) v. Village of Audubon,797F. Supp.353,affdwithoutopinion,968F.2d l4(3dCir. 1992); OxfordHouse, Inc. v. Town of Babylo4 819 F. Supp. 1179 (E.D.N.Y. 1993); (hford House v. Township of Cherry Hil|,799F. Supp.450@.N.1.1992); OxfordHouse-Evergreenv.CityofPlainJield,T69F.Supp. I 197 (D.N.J. 1991), and; Tsombanidis, and Oxford House, Inc. v. City of West Haven, Connecticut, 180 F. Supp. 262 (Ct. 2001). As members of a protected class under the FHA, Oxford Houses are protected against discriminatory zoning practices. As such, the issue of whether an Oxford House is in violation of local zoning ordinances is not relevant to the question of federal law. See United States (on behalf of @ford House) v. Village of AuduDon, supra. The FHA prohibis discriminatory land use decisions by local govemments, even when such decisions are "ostensibly authorized by local ordinance." Sen Oxford House Evergreen v. City of Plainjield, supra; also42 U.S.C. Section3615 ("any law ofa State, a political subdivision, or other j urisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid under the Fair Housing Act"). The aforementioned prohibition under the FIIA against zoning discrimination by local govemments includes the requirement that local govemments make reasonable accommodations in their mning ordinances to allow the operation of Oxford Houses. Specifically, 42 U.S.C. 3604(0(3XB), defines discrimination to include a "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such handicapped penon equal opportunity to use and enjoy a dwelling." See Oxford House v. City of St. Louis, slorpra; Oxford House v. City of Plainfield, srpra; Oxford House v. Township of Cherry Hill, srurpr4 and; Oxford House, Inc. v. Town of Babylor2, supra. The County's zoning ordinance is ostensibly a means for the County, through its BOA, to provide the required reasonable accommodation. The Section 63 of the County Zoning Ordinance follows federal law by requiring a reasonable accommodation when the request is both reasonable and necessary as each is defined in the law and set forth in Section 63.1 of the ordinance. Specifically, the ordinance defines reasonable and necessary as follows: l. "Reasonable". An accommodation will be determined reasonable if it would not undermine the legitimate purposes and effects of the existing zoning regulations, and if it would not impose significant financial and administrative burdens upon the County and/or constitute a substantial or fundamental alteration ofthe County's ordinance provisions; and 2. "Necessary". An accommodation will be determined necessary if it would provide direct or meaningfirl therapeutic amelioration of the effects of the particular disability or handicap, and would afford handicapped or disabled persons equal opporhrnity to enjoy and use housing in residential districts ofthe County. 5 Under Section 63. I of the ordinance, upon the finding that the request by Oxford House is reasonable and necessary as defined above, the BOA shall grant the requested exception to allow 8 persons to live at 5014 Richardson Drive. The reasonableness and necessity as to Oxford House Smithcreek at 5014 fuchardson Drive are set forth below. REQUEST IS REASONABLE No Burden There is no evidence of any financial or administrative burden on the County by the existence ofthe Oxford House. In fact, the Oxford House provides a free benefit to the County by providing housing and aiding in the recovery of those recovering from alcoholism and drug addiction. Zoning Scheme Not Undermined or Fundamentally Altered The Oxford House does not undermine the purposes of the County's zoning ordinance. The ordinance expressly allows for this type of housing. The ordinance also allows for this type of housing at this particular location. Further, the ordinance was recently amended to provide for an exception or reasonable accommodation for the request made herein. The ordinance itself is proofthat the Oxford House does not undermine the County's ordinance or firndamentally alter its zoning scheme. There are other Oxford Houses in the County in similar zoning districts, and none have undermined or fundamentally altered the County's zoning scheme. REQUEST IS NECESSARY Therapeutically Benelicial By its very nature the Oxford House model's therapeutic benefit is derived solely from its residents. As described above, in an Oxford House there are no counselors, managers, care providers or outside personnel that provide any therapeutic services. Oxford Houses are not like 6 traditional group homes, halfiray houses, or family care homes - all of which have managers and provide some services to their residents. In such traditional homes a lesser number of residents will not have any therapeutic impact. Not so in an Oxford House. The quality ofthe relationship among the residents in an Oxford House is one of mutual support and bonding, providing an ameliorative therapeutic benefit which aids each resident in their recovery from alcoholism or drug addiction. As a result ofthis therapeutic benefit, those living in an Oxford House are more likely to remain clean and sober than those living on their own.l The average number of residents in an Oxford House in North Carolina is eight (8). The average vacancy rate for Oxford Houses in North Carolina is one (l), meaning that with an allowed maximum capacity of 8, Oxford House Smithcreek will usually have just 7 residents. Ifthe house is not granted the requested exception, then it would be limited to 6 residents. With the average vacancy rate, a6 person Oxford House would usually have only 5 residents. As set forth above the oxford House model requires a minimum of 6 residents at all time to hold all required offices (president, vice presiden! secretary, treasurer, comptroller, and coordinator). A house that falls below six residents on a regular basis can lose it charter from Oxford House, Inc. Without the requested accommodation/exception, Oxford House Smithcreek would be put in jeopardy of failing for lack ofenough residents. Failure ofthe house means it would close, causing its residents to lose their home and support in their recovery. Invariably some would relapse. Relapse could be I DePaul University study that followed 897 residents in 219 Oxford Houses across the country for 27 months found that only 13% relapsed. A peer-reviewed published report of that study in Addictive Behaviors 32 (2007) can be downloaded at the Oxford House, Inc. website under "PublicationVEvaluations/DePaul." In another study 150 individuals getting out ofprimary treatment were divided into two groups of75 each with one group going to Oxford Houses and the other group going to normal living situations, each group was followed for two yeam after treatment and the Oxford House group did substantially better in staying clean and sober - 660/o v.33oh. American Joumal ofPublic Health, Oct 2006; Vol. 96, ppl727 -1729. 7 permanent and fatal. The ameliorative therapeutic benefit of the requested exception here is a threshold, make or break degree of amelioration. An Equal Opportunity to Use and Enjoy Housing of Their Choice Finally, the Oxford House Smithcreek is home to its residents. The requested accommodation/exception provides the residents an equal opporhurity to use and enjoy housing of their choice2. Without the requested accommodation the house would close as noted above. Closing of the house cause some residents to relapse, with potentially fatal consequences as noted above. Additionally, finding another house to rent to potentially relocate the Oxford House would be extremely difficult. Finding landlords willing to rent to Oxford House is difficult because ofthe stigma of alcoholism and drug addiction, the fear of zoning problems, neighbor ignorance and opposition, and finally because Oxford House requires long-term leases into which many landlords simply will not often enter. 2 The County's new ordinance falls short ofwhat federal law requires as to equal opporhrnity. The Iaw requires notjust an equal opportunity to enjoy and use housing "in residential districts in the County", but requires equal opportunity for disabled person to enjoy and using housing of lheir choice. Several courts have held the FHA protects the rights ofdisabled persons to use and enjoy the oarticular dwellins of their choice. See, e.g., Hovson's, Inc.v. Township of Brick,89F.3d 1096, I103-06 (3rd,Cir.1996); United States v. City of Jackson,3lE F.Supp.2d 395, 416 (S.D. Miss. 2002) (FIIA "guarantee[s] that the disabled be afforded equal opportunity to live, not in Eq49 residence in the community, but rather in the residence of their choice"); ARC of New Jersey, Inc. v. State of New Jersey, 950 F. Supp. 637, 645 (D. N.J. 1996) ("Such ceiling quotas [imposed via group home spacing rules] improperly limit the ability ofhandicapped persons 'to live in the residence oftheir choice in the community,' House Report at 24, even if imposed in the name of integration or 'declustering"'); @ord House, lnc. v. Town of Babylon, 819 F. Supp. I I 79, I lE5 n.l0 (E.D. N.Y. 1993) (FHA "dictates that a handicapped individual must be allowed to enjoy a particular dwelling, not just some dwelling somewhere in the town"); Oxford House-Evergreen v. City of Plainfield,769 F. Supp. 1329, 1344 (D. 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