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VII.1. First Reading: Temporary Family Health Care Dwellings; Elverum (CR2016-075) August 1, 2016 City Council Report 2016-075 Temporary Family Health Care Dwellings Proposed Action: Staff recommends the following motion: Move to adopt Resolution 2016- 52, approving an Ordinance 2016-1113 opting-out of the requirements of Minnesota Statute, Section 462.3593, related to temporary family health care dwellings. Overview This application was initiated by staff in response to a new state law related to temporary family health care dwelling units. Minnesota Statute, Section 462.3593, requires local governments to allow temporary family health care dwellings in residentially-zoned areas unless they approve an ordinance opting out of this statute before September 1, 2016. Currently, Hopkins zoning regulations prohibit these uses. Under the new law, any existing local zoning standards related to accessory use or recreational vehicles storage and parking are preempted and do not apply to the dwellings allowed by the new state law. Given the broad and uncertain nature of the law, both the City Attorney and Planning staff recommend opting out of this legislation. This memo provides background information, standards from the new law, responses of other cities and outlines staff concerns. Primary Issues to Consider • State Standards for Temporary Family Health Care Dwellings • Responses from Other Communities • Local Zoning Concerns Supporting Documents • Resolution 2016-52 • Ordinance 2016-1113 • Community Survey Regarding Temporary Family Health Care Dwelling Units • Memo from City Attorney regarding Temporary Family Health Care Dwellings • League of Minnesota Cities – Temporary Family Health Care Dwellings of 2016: Allowing Temporary Structures – What it Means for Cities • Zoning of Temporary Family Health Care Dwellings, Minnesota Statutes, Section 462.3593 _____________________________________________ Sarah Emmel, Planning & Economic Development Intern Jason Lindahl, City Planner Financial Impact: $ N/A Budgeted: Y/N ____ Source: _____________ Related Documents (CIP, ERP, etc.): _________________________________________ Notes: City Council Report 2016-075 Page 2 Planning Commission Action During the July 26th regular meeting, the Planning & Zoning Commission reviewed Planning application 2016-15-TA regarding opting out of the Minnesota Statute, Section 462.3593. Planning and Economic Development Intern Sarah Emmel presented this item. After hearing from staff, the Planning & Zoning Commission held a public hearing that produced no comments. The Commission then had general discussion about temporary health care dwellings. Commissioner McNeil asked if the City could approve parts but not all of this law. Mr. Lindahl replied no, the City must either opt out of the law or accept all of its provisions. Commissioner Wallace-Jackson asked about the inspection process and how these units would connect to utilities. Staff replied that the law provided for a limited inspection process and that these units would connect to the host site’s utilities or be pumped out similar to other recreational vehicles. Commissioner McNeil asked if there was any way to accommodate this type of activity under the City’s existing code. Mr. Lindahl replied that Hopkins’ code does allow for a second permanent dwelling unit in R-1-A and R-2 districts. The code prohibits the use of temporary structures or recreational vehicles as dwellings units. Commissioner McNeil asked staff to create a handout for residents detailing what is allowed under the existing code. At the conclusion of their discussion, the Commission voted unanimously to recommend the City Council opt out of the requirements of Minnesota Statute, Section 462.3593, related to temporary family health care dwellings. Background In May 2016, the Minnesota legislature passed a bill that allows the use of and regulates temporary family health care dwellings within the state. The law was drafted with the assistance of a Minnesota company that produces drop houses that can be used as these types of dwellings. The units will be allowed on residential lots as an accessory building, and will receive their power and water supply from the main residence. The allowed use of these units within the state law means that the city’s zoning ordinances for accessory uses or recreational vehicles that would otherwise regulate these temporary dwellings do not apply. According to its authors, the purpose of the law was to provide transitional housing to seniors who may require assistance or care from family members during a temporary health event. Caregivers who cannot provide this assistance in their main residence, due to limited space or lack of accessibility, have an additional option to keep their relatives close through the use of a small, temporary dwelling. Additionally, these health care dwellings have the potential to be less costly than nursing home care or other types of assisted living. Despite the law’s intent, the League of Minnesota Cities and many local governments objected to it because of its preemption of local zoning authority, as well as its broad and generalized approach. As a result, the State included a provision allowing cities the ability to opt out of this law. Cities may do this at any time, but if the opt out ordinance is not in effect by September 1, 2016, they must process applications for these dwellings after that date. In initial discussion, the City Council has expressed support for opting out of this law. Primary Issues to Consider State Standards for Temporary Family Health Care Dwellings. The law sets regulatory parameters for the units, including: City Council Report 2016-075 Page 3 • The dwellings must be temporary in nature, with an initial permit lasting 6 months, and the option to renew for an additional 6 months. • The permit fee caps set for this process are $100 for the initial application and $50 for renewal. • Cities have 15 days to review applications for permits. • The applicant must notify neighbors of the unit. • A caregiver or relative must reside on the property where the temporary unit is placed. • The resident of the unit must have a documented need for assistance with “two or more instrumental activities of daily life,” certified by a health care professional. These needs could be either mental or physical. • The individual needing assistance must be listed upon the permit. • There is no requirement that the resident in the temporary unit be related to the caregiver, and there is no age requirement for the resident receiving care. Physical guidelines for the units are also included in the law. Acceptable structures can include modular housing, manufactured housing, and recreational vehicles, as long as they meet other criteria outlined in the statute. The law preempts any local zoning regulations that would otherwise prohibit these in residential lots. However, structures must follow any other rules such as setback, stormwater, or easement requirements. According to the law, the temporary dwelling must follow the following standards. • Must be primarily preassembled • Must be no more than 300 square feet • Must not be attached to a permanent foundation • Must meet state-recognized accessibility standards • Must access water and electricity by connecting to the utilities serving the principal dwelling or by comparable means • Must have comparable standard residential exterior material • Must have minimum insulation of R-15 • Must be portable • Must comply with Minnesota Rules, chapter 1360 (prefabricated buildings) or 1361 (industrialized/modular buildings), and contain an Industrialized Buildings Commission seal and data plate or to American National Standards Institute Code 119.2 (now NFPA 1192, standard on recreational vehicles) • Must be equipped with a backflow check valve Responses from Other Communities. Other communities in the metro have been opting out from this law due to various concerns. Below is a list of several communities in our area, their opt-out status, and the reasons they have stated for doing so. Many of them face similar challenges with the temporary dwellings as Hopkins does, including small lot size and inconsistencies with current zoning. Of the 22 communities in this survey, only Crystal plans to study this issue further. Local Zoning Concerns. After comparing the law with the Hopkins zoning regulations, consulting with the City Attorney and surveying other local governments, staff offers the following concern regarding the new temporary family health care dwellings legislation. City Council Report 2016-075 Page 4 • The state law was not drafted with the local needs of Hopkins in mind, and does not address conflicts with current zoning, neighborhood concerns, or aesthetic considerations. • There is no ability to partially opt out, or to change the requirements of this statute to suit the specific needs of the community. According to both the City Attorney and the League of Minnesota Cities, if a city wants a program different from the one specified in the statute, the most conservative approach would involve opting out of the statute in its entirety and then adopting an ordinance in the manner best suited to the city. • Hopkins has primarily small lots, and there is no minimum lot size specified in the law. Accommodating these dwellings on many of Hopkins lots would be challenging. • According to the League of Minnesota Cities, the application’s data requirements may result in the city possessing nonpublic data such as health information for the individuals with the certified impairment. The individual with the impairment does not sign the permit application or a consent form to release their data. Alternatives 1. Adopt Resolution 2016-52 approving Ordinance 2016-1113 opting out of the requirements of Minnesota Statute, Section 462.3593, related to temporary family health care dwellings. By approving the Ordinance to opt out, the City would maintain the existing zoning standards prohibiting temporary family dwelling units. 2. Deny Resolution 2016-52 approving Ordinance 2016-1113 opting out of the requirements of Minnesota Statute, Section 462.3593, related to temporary family health care dwellings. Denying the Ordinance to opt out of this law would require Hopkins to allow temporary family health care dwellings within all residentially-zoned areas, subject to the provision provided in the law. If the City Council considers this alternative, findings will have to be identified that support this alternative. 3. Continue the application for further information. If the City Council indicates that further information is needed, the item should be continued. It should be noted that continuing this item would likely not allow action on this ordinance prior to the September 1, 2016, deadline. As a result, Hopkins would be subject to this law and be required to process these applications. City Council Report 2016-075 Page 5 Community Survey Regarding Temporary Health Care Dwelling Units Community Status Reasons Given Saint Louis Park Likely opting out • Conflicts with current zoning • Concerns about verifying individual on permit is resident of dwelling versus a renter • Storm safety, as RVs are allowed and not required to be anchored • Concerns about the method of providing electricity and water from the main residence, and septic pumping required Minnetonka Introducing opt- out as an option • Other options available for this type of housing within the city • Structures do not need to meet building codes Excelsior Opted out • Small lot sizes • Zoning conflicts Lauderdale Opted out • Concerns about enforcement of temporary status • Concerns about verifying individual on permit is resident of dwelling versus a renter Lakeville Opting out • Neighborhoods with small lot sizes • Concerns about privacy regarding individual’s health condition on permit • Limited review time for permits, no period to hold public hearing Crystal Opting out • Would like to select their own requirements and criteria for these types of dwellings Savage Opting out • Small lots • Difficulty monitoring status Bloomington Opting out • Response not provided Burnsville Opted out • Response not provided Brooklyn Park Opting out • Response not provided Lake Elmo Likely opting out • Response not provided Mendota Heights Likely opting out • Response not provided Mounds View Opting out • Response not provided North Saint Paul Opting out • Response not provided New Brighton Opting out • Response not provided Oak Park Heights Opting out • Response not provided Oakdale Opting out • Response not provided Robbinsdale Opted out • Ordinance to opt out approved Richfield Opting out • Response not provided Rosemount Opting out • Response not provided Shakopee Opting out • Response not provided Stillwater Opting out • Response not provided CITY OF HOPKINS HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016-52 A RESOLUTION APPROVING ORDINANCE 2016-1113 OPTING OUT OF THE REQUIREMENTS OF MINNESOTA STATUTE, SECTION 462.3593, RELATED TO TEMPORARY FAMILY HEALTH CARE DWELLINGS WHEREAS, the City of Hopkins initiated an application to consider an ordinance opting out of the requirements of Minnesota Statute, Section 462.3593, related to temporary family health care dwellings; WHEREAS, the procedural history of the application is as follows: 1. That an application to consider an ordinance opting out of the requirements of Minnesota Statute, Section 462.3593, related to temporary family health care dwellings was initiated by the City of Hopkins on June 23, 2016; and 2. That the Hopkins Planning & Zoning Commission, pursuant to published notice, held a public hearing on the application and reviewed such application on July 26, 2016, and all persons present were given an opportunity to be heard; and, 3. That the written comments and analysis of City staff were considered. WHEREAS, on May 12, 2016, Governor Dayton signed into law the creation and regulation of temporary family health care dwellings, codified at Minnesota Statutes, Section 462.3593, which permits and regulates temporary family health care dwellings; and WHEREAS, Subdivision 9 of Minnesota Statutes, Section 462.3593, allows cities to “opt out” of those regulations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Hopkins hereby approves Ordinance 2016-1113 opting out of the requirements of Minnesota Statute, Section 462.3593, related to temporary family health care dwellings based on the following findings of fact: 1. Minnesota Statute, Section 462.3593, would preempt local zoning control over temporary family health care dwellings; and 2. Subdivision 9 of Minnesota Statutes, Section 462.3593, allows cities to “opt out” of those regulations. Adopted by the City Council of the City of Hopkins this 1st day of August 2016. _______________________ Molly Cummings, Mayor ATTEST: ______________________ Amy Domeier, City Clerk CITY OF HOPKINS Hennepin County, Minnesota ORDINANCE NO. 2016-1113 AN ORDINANCE OPTING-OUT OF THE REQUIREMENTS OF MINNESOTA STATUTES, SECTION 462.3593 RELATED TO TEMPORARY FAMILY HEALTH CARE DWELLINGS THE COUNCIL OF THE CITY OF HOPKINS DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Section 525.19 is being added to the Hopkins City Code by adding the bolded and underlined material as follows: 525.19 Temporary Family Health Care Dwellings. Pursuant to authority granted by Minnesota Statutes, Section 462.3593, subdivision 9, the City of Hopkins opts-out of the requirements of Minnesota Statutes, Section 462.3593, which defines and regulates Temporary Family Health Care Dwellings. SECTION 2. This ordinance shall take effect and be in force upon its publication, in accordance with Section 3.07 of the City Charter. First Reading: August 1, 2016 Second Reading: August 9, 2016 Date of Publication: August 18, 2016 Date Ordinance Takes Effect: August 18, 2016 ______________________ Molly Cummings, Mayor ATTEST: _______________________ Amy Domeier, City Clerk 482684v2 SJR HP145-9 Kennedy 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis MN 55402-1458 (612) 337-9300 telephone (612) 337-9310 fax http://www.kennedy-graven.com Affirmative Action, Equal Opportunity Employer Graven C H A R T E R E D MEMORANDUM DATE: July 7, 2016 TO: Kersten Elverum, Director of Economic Development & Planning Jason Lindahl, City Planner FROM: Scott J. Riggs, City Attorney Andrew M. Biggerstaff, Assistant City Attorney RE: Temporary Family Health Care Dwellings _________________________________________________________________________ During the 2016 legislative session, the Minnesota legislature passed, and the governor signed into law, a new state law which creates a new express authorization that allows the use of temporary family health care dwellings. Under the law, cities have the opportunity to opt-out by ordinance. Failure to do so will result in the new law applying within the City. What is Allowed? The new law preempts local zoning laws as they relate to the placement of “temporary healthcare dwellings” which are generally defined as small temporary living units for persons with a mental or physical disability.1 Under the new law, property owners are able to place these temporary units on their land regardless of zoning codes which may otherwise prohibit them.2 The new law puts in place the criteria required for these temporary structures. Cities generally will not have the ability to modify this list of criteria. The standards which must be met are that the temporary structure must: 1. Primarily be pre-assembled; 1 Minn. Stat. § 462.3593, subd. 2. 2 For instance, zoning regulations related to recreational or other vehicle parking, accessory use, dwelling unit limitation etc. are preempted. & 482684v2 SJR HP145-9 2. Cannot exceed 300 gross square feet; 3. Cannot attach to the permanent structure; 4. Must be universally designed and meet state accessibility standards; 5. Must provide access to water and electrical utilities (by connecting to principal dwelling or other comparable means); 6. Must have compatible standard residential construction exterior materials; 7. Must have minimum insulation of R-15; 8. Must be portable (as defined by statute); 9. Must comply with applicable Minnesota Rules; and 10. Must contain a backflow check valve. What Must the City Do? Under the new law, cities are required to process applications for these units.3 If the unit meets the requirements of the state law, the city must approve its placement for six months. Renewal applications are available, extending the maximum term to one year. The city may also require inspections of the units. Cities may charge a licensing fee not to exceed $100 for an initial license, or $50 for a temporary license. What Options Do Cities Have? Because this is a general law, it applies in every county and city within the state. However, the legislature provided an “opt-out” provision which allows cities to effectively prohibit these units under their zoning code by the adoption of an ordinance. Because the general law takes effect on September 1, 2016, cities who wish to prohibit these units should act to properly adopt the ordinance prior to that date. Failure to do so will create an interim period where these units will be allowed within the city, which will likely lead to non-conforming structures if and when the city does opt-out. While the legislature was not clear about the process for adopting such an ordinance, cities should treat these as amendments to their zoning code.4 This requires a public hearing on the opt-out ordinance upon at least ten days’ published notice. Additionally, the matter should be referred to the responsible planning agency in accordance with state law.5 A sample ordinance has been attached hereto as Exhibit A. 3 Minn. Stat. § 462.3593, subd. 3. 4 Because the new law was codified in Minn. Stat. Ch. 462, it is generally considered a zoning provision. 5 Minn. Stat. § 462.357, subd. 4. 482684v2 SJR HP145-9 EXHIBIT A ORDINANCE NO.____________ CITY OF HOPKINS AN ORDINANCE OPTING-OUT OF THE REQUIREMENTS OF MINNESOTA STATUTES, SECTION 462.3593 WHEREAS, on May 12, 2016, Governor Dayton signed into law the creation and regulation of temporary family health care dwellings, codified at Minnesota Statutes, Section 462.3593, which permit and regulate temporary family health care dwellings; WHEREAS, subdivision 9 of Minnesota Statutes, Section 462.3593 allows cities to “opt out” of those regulations; THE CITY OF HOPKINS, ORDAINS: Section 1. Section ___, titled ________________/[or Miscellaneous] is being added to the Hopkins City Code by adding the bolded and underlined material as follows [or, an uncodified Ordinance is adopted as follows]: _______________ [or Miscellaneous] 1. Opt-Out of Minnesota Statutes, Section 462.3593: Pursuant to authority granted by Minnesota Statutes, Section 462.3593, subdivision 9, the City of Hopkins opts-out of the requirements of Minnesota Statutes, Section 462.3593, which defines and regulates Temporary Family Health Care Dwellings. SECTION 2. This ordinance shall take effect and be in force upon its publication, in accordance with Section 3.07 of the City Charter. Introduced to the City Council of the City of Hopkins, Minnesota, this ____ day of ____________, 2016. Passed by the City Council of the City of Hopkins, Minnesota, this ______ day of ____________, 2016. Published on the ______ day of ______________, 2016. __________________________________ Molly Cummings, Mayor ___________________________________ Amy Domeier, City Clerk Temporary Family Health Care Dwellings of 2016 Allowing Temporary Structures – What it means for Cities Introduction: On May 12, 2016, Gov. Dayton signed, into law, a bill creating a new process for landowners to place mobile residential dwellings on their property to serve as a temporary family health care dwelling.1 Community desire to provide transitional housing for those with mental or physical impairments and the increased need for short term care for aging family members served as the catalysts behind the legislature taking on this initiative. The resulting legislation sets forth a short term care alternative for a “mentally or physically impaired person”, by allowing them to stay in a “temporary dwelling” on a relative’s or caregiver’s property.2 Where can I read the new law? Until the state statutes are revised to include bills passed this session, cities can find this new bill at 2016 Laws, Chapter 111. Does the law require cities to follow and implement the new temporary family health care dwelling law? Yes, unless a city opts out of the new law or currently allows temporary family health care dwellings as a permitted use. Considerations for cities regarding the opt-out? These new temporary dwellings address an emerging community need to provide more convenient temporary care. When analyzing whether or not to opt out, cities may want to consider that: • The new law alters a city’s level of zoning authority for these types of structures. • While the city’s zoning ordinances for accessories or recreational vehicles do not apply, these structures still must comply with setback requirements. • A city’s zoning and other ordinances, other than its accessory use or recreational vehicle ordinances, still apply to these structures. Because conflicts may arise between the statute and a city’s local ordinances, cities should confer with their city attorneys to analyze their current ordinances in light of the new law. 1 2016 Laws, Chapter 111. 2 Some cities asked if other states have adopted this type of law. The only states that have a somewhat similar statute at the time of publication of this FAQ are North Carolina and Virginia. It is worth noting that some states have adopted Accessory Dwelling Unit (ADU) statutes to allow granny flats, however, these ADU statutes differ from Minnesota’s Temporary Health Care Dwelling law. Temporary Family HealthCare Dwellings June 27, 2016 Page 2 • Although not necessarily a legal issue for the city, it seems worth mentioning that the permit process does not have the individual with the physical or mental impairment or that individual’s power of attorney sign the permit application or a consent to release his or her data. • The application’s data requirements may result in the city possessing and maintaining nonpublic data governed by the Minnesota Government Data Practices Act. • The new law sets forth a permitting system for both cities and counties 3. Cities should consider whether there is an interplay between these two statutes. Do cities need to do anything to have the new law apply in their city? No, the law goes into effect Sept. 1, 2016 and automatically applies to all cities that do not opt out or don’t already allow temporary family health care dwellings as a permitted use under their local ordinances. Do cities lose the option to opt out after the Sept. 1, 2016 effective date? No, the law does not set a deadline for opting out, so cities can opt out after Sept. 1, 2016. However, if the city has not opted out by Sept. 1, 2016, then the city must not only have determined a permit fee amount 4 before that date (if the city wants to have an amount different than the law’s default amount), but also must be ready on that date to accept applications and process the permits in accordance with the short timeline required by the law. Cities should consult their city attorney to analyze how to handle applications submitted after Sept. 1, 2016, but still pending at the time of a later opt out. What if a city already allows a temporary family health care dwelling as a permitted use? If the city already has designated temporary family health care dwellings as a permitted use, then the law does not apply and the city follows its own ordinance. The city should consult its city attorney for any uncertainty about whether structures currently permitted under existing ordinances qualify as temporary family health care dwellings. What process should the city follow if it chooses to opt out of this statute? Cities that wish to opt out of this law must pass an ordinance to do so. The statute does not provide clear guidance on how to treat this opt-out ordinance. However, since the new law adds section 462.3593 to the land use planning act (Minn. Stat. ch. 462), arguably, it may represent the adoption or an amendment of a zoning ordinance, triggering the requirements of Minn. Stat. § 462.357, subd. 2-4, including a public hearing with 10-day published notice. Therefore, cities may want to err on the side of caution and treat the opt-out ordinance as a zoning provision.5 3 See Minn. Stat. §394.307 4 Cities do have flexibility as to amounts of the permit fee. The law sets, as a default, a fee of $100 for the initial permit with a $50 renewal fee, but authorizes a city to provide otherwise by ordinance. 5 For smaller communities without zoning at all, those cities still need to adopt an opt-out ordinance. In those instances, it seems less likely that the opt-out ordinance would equate to zoning. Because of the ambiguity of the Temporary Family HealthCare Dwellings June 27, 2016 Page 3 Does the League have a model ordinance for opting out of this program? Yes. Link to opt out ordinance here: Temporary Family Health Care Dwellings Ordinance Can cities partially opt out of the temporary family health care dwelling law? Not likely. The opt-out language of the statute allows a city, by ordinance, to opt out of the requirements of the law but makes no reference to opting out of parts of the law. If a city wanted a program different from the one specified in statute, the most conservative approach would be to opt out of the statute, then adopt an ordinance structured in the manner best suited to the city. Since the law does not explicitly provide for a partial opt out, cites wanting to just partially opt out from the statute should consult their city attorney. Can a city adopt pieces of this program or change the requirements listed in the statute? Similar to the answer about partially opting out, the law does not specifically authorize a city to alter the statutory requirements or adopt only just pieces of the statute. Several cities have asked if they could add additional criteria, like regulating placement on driveways, specific lot size limits, or anchoring requirements. As mentioned above, if a city wants a program different from the one specified in the statute, the most conservative approach would involve opting out of the statute in its entirety and then adopting an ordinance structured in the manner best suited to the city. Again, a city should consult its city attorney when considering adopting an altered version of the state law. What is required in an application for a temporary family health care dwelling permit? The mandatory application requests very specific information including, but not limited to:6 • Name, address, and telephone number of the property owner, the resident of the property (if different than the owner), and the primary care giver; • Name of the mentally or physically impaired person; • Proof of care from a provider network, including respite care, primary care or remote monitoring; • Written certification signed by a Minnesota licensed physician, physician assistant or advanced practice registered nurse that the individual with the mental or physical impairment needs assistance performing two or more “instrumental activities of daily life;”7 statute, cities should consult their city attorneys on how best to approach adoption of the opt-out ordinance for their communities. 6 New Minn. Stat. § 462.3593, subd. 3 sets forth all the application criteria. 7 This is a term defined in law at Minn. Stat. § 256B.0659, subd. 1(i) as “activities to include meal planning and preparation; basic assistance with paying bills; shopping for food, clothing, and other essential items; performing household tasks integral to the personal care assistance services; communication by telephone and other media; and traveling, including to medical appointments and to participate in the community.” Temporary Family HealthCare Dwellings June 27, 2016 Page 4 • An executed contract for septic sewer management or other proof of adequate septic sewer management; • An affidavit that the applicant provided notice to adjacent property owners and residents; • A general site map showing the location of the temporary dwelling and the other structures on the lot; and • Compliance with setbacks and maximum floor area requirements of primary structure. The law requires all of the following to sign the application: the primary caregiver, the owner of the property (on which the temporary dwelling will be located) and the resident of the property (if not the same as the property owner). However, neither the physically disabled or mentally impaired individual nor his or her power of attorney signs the application. Who can host a temporary family health care dwelling? Placement of a temporary family health care dwelling can only be on the property where a “caregiver” or “relative” resides. The statute defines caregiver as “an individual, 18 years of age or older, who: (1) provides care for a mentally or physically impaired person; and (2) is a relative, legal guardian, or health care agent of the mentally or physically impaired person for whom the individual is caring.” The definition of “relative” includes “a spouse, parent, grandparent, child, grandchild, sibling, uncle, aunt, nephew or niece of the mentally or physically impaired person. Relative also includes half, step and in-law relationships.” Is this program just for the elderly? No. The legislature did not include an age requirement for the mentally or physically impaired dweller. 8 Who can live in a temporary family health care dwelling and for how long? The permit for a temporary health care dwelling must name the person eligible to reside in the unit. The law requires the person residing in the dwelling to qualify as “mentally or physically impaired,” defined as “a person who is a resident of this state and who requires assistance with two or more instrumental activities of daily living as certified by a physician, a physician assistant, or an advanced practice registered nurse, licenses to practice in this state.” The law specifically limits the time frame for these temporary dwellings permits to 6 months, with a one-time 6 month renewal option. Further, there can be only one dwelling per lot and only one dweller who resides within the temporary dwelling 8 The law expressly exempts a temporary family health care dwelling from being considered “housing with services establishment”, which, in turn, results in the 55 or older age restriction set forth for “housing with services establishment” not applying. Temporary Family HealthCare Dwellings June 27, 2016 Page 5 What structures qualify as temporary family health care dwellings under the new law? The specific structural requirements set forth in the law preclude using pop up campers on the driveway or the “granny flat” with its own foundation as a temporary structure. Qualifying temporary structures must: • Primarily be pre-assembled; • Cannot exceed 300 gross square feet; • Cannot attach to a permanent foundation; • Must be universally designed and meet state accessibility standards; • Must provide access to water and electrical utilities (by connecting to principal dwelling or by other comparable means 9); • Must have compatible standard residential construction exterior materials; • Must have minimum insulation of R-15; • Must be portable (as defined by statute); • Must comply with Minnesota Rules chapter 1360 (prefabricated buildings) or 1361 (industrialized/modular buildings), “and contain an Industrialized Buildings Commission seal and data plate or to American National Standards Institute Code 119.2”10; and • Must contain a backflow check valve.11 Does the State Building Code apply to the construction of a temporary family health care dwelling? Mostly, no. These structures must meet accessibility standards (which are in the State Building Code). The primary types of dwellings proposed fall within the classification of recreational vehicles, to which the State Building Code does not apply. Two other options exist, however, for these types of dwellings. If these structures represent a pre-fabricated home, the federal building code requirements for manufactured homes apply (as stated in Minnesota Rules, Chapter 1360). If these structures are modular homes, on the other hand, they must be constructed consistent with the State Building Code (as stated in Minnesota Rules, Chapter 1361). What health, safety and welfare requirements does this new law include? Aside from the construction requirements of the unit, the temporary family health care dwelling must be located in an area on the property where “septic services and emergency vehicles can gain access to the temporary family health care dwelling in a safe and timely manner.” What local ordinances and zoning apply to a temporary health care dwelling? The new law states that ordinances related to accessory uses and recreational vehicle storage and parking do not apply to these temporary family health care dwellings. 9 The Legislature did not provide guidance on what represents “other comparable means”. 10 ANSI Code 119.2 has been superseded by NFPA 1192. For more information, the American National Standards Institute website is located at https://www.ansi.org/. 11 New Minn. Stat. § 462.3593, subd. 2 sets forth all the structure criteria. Temporary Family HealthCare Dwellings June 27, 2016 Page 6 However, unless otherwise provided, setbacks and other local ordinances, charter provisions, and applicable state laws still apply. Because conflicts may arise between the statute and one or more of the city’s other local ordinances, cities should confer with their city attorneys to analyze their current ordinances in light of the new law. What permit process should cities follow for these permits? The law creates a new type of expedited permit process. The permit approval process found in Minn. Stat. § 15.99 generally applies; however, the new law shortens the time frame within which the local governmental unit can make a decision on the permit. Due to the time sensitive nature of issuing a temporary dwelling permit, the city does not have to hold a public hearing on the application and has only 15 days (rather than 60 days) to either issue or deny a permit. For those councils that regularly meet only once a month, the law provides for a 30-day decision. The law specifically prohibits cities from extending the time for making a decision on the permit application. The new law allows the clock to restart if a city deems an application incomplete, but the city must provide the applicant written notice within five business days of receipt of the application identifying the missing information. Can cities collect fees for these permits? Cities have flexibility as to amounts of the permit fee. The law sets the fee at $100 for the initial permit with a $50 renewal fee, unless a city provides otherwise by ordinance Can cities inspect, enforce and ultimately revoke these permits? Yes, but only if the permit holder violates the requirements of the law. The statute allows for the city to require the permit holder to provide evidence of compliance and also authorizes the city to inspect the temporary dwelling at times convenient to the caregiver to determine compliance. The permit holder then has sixty (60) days from the date of revocation to remove the temporary family health care dwelling. The law does not address appeals of a revocation. How should cities handle data it acquires from these permits? The application data may result in the city possessing and maintaining nonpublic data governed by the Minnesota Government Data Practices Act. To minimize collection of protected heath data or other nonpublic data, the city could, for example, request that the required certification of need simply state “that the person who will reside in the temporary family health care dwelling needs assistance with two or more instrumental activities of daily living”, without including in that certification data or information about the specific reasons for the assistance, the types of assistance, the medical conditions or the treatment plans of the person with the mental illness or physical disability. Because of the complexities surrounding nonpublic data, cities should consult their city attorneys when drafting a permit application. Should the city consult its city attorney? Yes. As with any new law, to determine the potential impact on cities, the League recommends consulting with your city attorney. Temporary Family HealthCare Dwellings June 27, 2016 Page 7 Where can cities get additional information or ask other questions. For more information, contact Staff Attorney Pamela Whitmore at pwhitmore@lmc.org or LMC General Counsel Tom Grundhoefer at tgrundho@lmc.org. If you prefer calling, you can reach Pamela at 651.281.1224 or Tom at 651.281.1266.