BOA-961 Staff SummaryZBA-961
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REASONABLE ACCOMMODATION REQUEST
BOARD OF ADJUSTMENT
April 27, 2021
CASE: BOA-961
PETITIONER: Oxford House Showman, applicant, on behalf of Javarah and Mary Joseph, property
owners.
REQUEST: Reasonable accommodation request under the Federal Fair Housing Act per Section 10.3.13
of the Unified Development Ordinance to allow up to 8 disabled persons residing together
in a group home.
LOCATION: 314 Silva Terra Drive
PID: R07020-010-011-000
ZONING: R-15, Residential District
BACKGROUND AND ORDINANCE CONSIDERATIONS:
The applicant intends to permit a group home run by the Oxford House at the subject property. The New
Hanover County UDO allows up to six disabled persons to reside in a group home by-right in the R-15
zoning district per the Principal Use Table in Section 4.2.1:
Table 4.2.1: Principal Use Table
Key: P = Permitted by Right S = Special Use Permit Required * = Specific Use Standards Apply in District
blank cell = not allowed
Use
Zoning District Use Standards RA AR R-20S R-20 R-15 R-10 R-7 R-5 RMF-L RMF-M RMF-MH RMF-H PD UMXZ B-1 CB B-2 O&I SC CS AC I-1 I-2 Group Living
Group Home P
*
P
*
P
*
P
*
P
*
P
*
P
*
P
*
P
*
P
*
P
*
P
*
P
*
P
*
S
*
S
*
4.3.2
.2
Group Homes fall under the “Group Living” classification in the Principal Use Table and are defined in the
UDO as follows:
Group Home – A home in which more than three unrelated persons with a disability, as defined in the
U.S. Fair Housing Act, 42 U.S.C. 3601 et seq., live together as a self-supporting and self-sufficient
household unit.
The Fair Housing Act defines persons with a disability to mean those individuals with mental or physical
impairments that substantially limit one or more major life activities. The term mental or physical impairment
may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental
retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness.
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Additional standards for group homes are detailed in Section 4.3.2.B.3 of the UDO and generally address
the number of occupants, required approvals and certifications, parking requirements, and separation from
other group homes:
4.3.2. RESIDENTIAL USES
B. Group Living
3. Group Home
Group homes shall comply with the following standards:
a. Group homes shall be limited to six disabled persons living together as a self-supporting and
self-sufficient household unit.
b. No group home shall be occupied or operated without zoning approval.
1. Group homes that are exempt from licensure pursuant to NCGS §122C-22 must
recertify their exemption status annually; and
2. Group homes for special needs persons must recertify qualification of all residents as
special needs persons annually.
c. Parking shall be provided in accordance with Section 5.1: Parking and Loading.
d. Group homes shall not be located closer than 2,000 feet to any other existing group home,
measured by a straight line from the nearest property lines, irrespective of jurisdictional
boundaries. The distance shall be reduced by the right-of-way of a major thoroughfare
exceeding 100 feet, major topographical features such as a major watercourse, or by major
nonresidential or public uses such as a park, school, or religious institution.
e. Reasonable accommodations shall be provided in accordance with Section 10.3.13, Reasonable
Accommodation.
This section also references a process located in Section 10.3.13 by which a group home provider may
petition for a reasonable accommodation under the Federal Fair Housing Act to vary any of the provisions
outlined in Section 4.3.2 B. Section 10.3.13 outlines the eligibility requirements for residents in a group
home as well as the application and review standards for a reasonable accommodation request. The
Board of Adjustment is authorized to grant such a request after holding a quasi-judicial hearing and finding
that the request meets the criteria below, particularly if it is found to be both “reasonable” and “necessary:”
10.3.13. REASONABLE ACCOMMODATION
A. Applicability
1. General
This section provides a procedure for reasonable accommodation of eligible persons in
cases where the strict application of the standards of this Ordinance would deprive
them of their right to equal opportunity to use a dwelling under the federal Fair Housing
Act.
2. Eligible Persons
a. An eligible person is a person who meets the definition of a disabled
or handicapped person under federal law.
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b. A person recovering from substance abuse is considered a person with
a disability or handicap provided they are not currently engaging in
the illegal use of controlled substances.
(section B discusses the Reasonable Accommodation application and review procedures)
C. Reasonable Accommodation Review Standards
1. A reasonable accommodation application shall be approved on a finding the
proposed accommodation:
a. Will be used by an individual or individuals with a disability or handicap
protected under federal law;
b. Is the minimum needed to provide accommodation; and
c. Is reasonable and necessary.
2. For the purposes of this section, an accommodation is reasonable if it would
not undermine the legitimate purposes of this Ordinance, it does not constitute
a substantial alteration of this Ordinance or other County standard, and it will
not impose significant financial and administrative burdens upon the County.
3. For the purposes of this section, an accommodation is necessary if it would
provide direct or meaningful therapeutic amelioration of the effects of the
particular disability or handicap, and would afford handicapped or disabled
persons equal opportunity to use housing in residential districts in the County.
The specific request is to allow up to 8 disabled persons instead of up to 6 disabled persons to reside in a
proposed group home at 314 Silva Terra Drive. According to New Hanover County tax records, the home
lies on a 0.36-acre parcel and contains 1,915 square feet of living area. A copy of the property record
card is included as an addendum to this staff report.
Included with the petitioner’s application is a statement of justification for the special exception request, as
well as the Oxford House Manual.
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BOARD OF ADJUSTMENT POWER AND DUTY:
The Board of Adjustment is authorized to grant reasonable accommodations for the special circumstances
as set forth in 10.3.13 of the New Hanover County Unified Development Ordinance to allow for reasonable
accommodation under the Federal Fair Housing Act. The Board of Adjustment shall grant a request for
reasonable accommodation under the Federal Fair Housing Act if the Board finds by the greater weight of
the evidence that the proposed special exception will be used by an individual or individuals with a
disability or handicap protected under federal law, is the minimum needed to provide accommodation,
and is both “reasonable” and “necessary.”
1. "Reasonable" - An accommodation will be determined to be reasonable if it would not undermine
the legitimate purposes of this Ordinance, it does not constitute a substantial alteration of this
Ordinance or other County standard, and it will not impose significant financial and administrative
burdens upon the County; and
2. "Necessary" - An accommodation will be determined to be necessary if it would provide direct or
meaningful therapeutic amelioration of the effects of the particular disability or handicap, and
would afford handicapped or disabled persons equal opportunity to use housing in residential
districts in the County.
ACTION NEEDED (Choose one):
1. Motion to approve the special exception request based on the findings of fact (with or
without recommended conditions)
2. Motion to table the item in order to receive additional information or documentation
(Specify).
3. Motion to deny the special exception request based on specific negative findings in either
of the two categories above.