A.G. Gancarski
What happens when the Americans for Disabilities Act meets a Jacksonville zoning overlay? A headache, some litigation, and, eventually, attempts by all parties to arrive at a workable compromise.
Emphasis on the word “attempts,” as seemingly everyone outside of the lawyers who reached the compromise found something at which to balk.
A bill that would impose terms of a settlement requiring the breach of the Springfield Overlay to accommodate an apartment building housing the disabled and the chronically homeless has loomed on the Jacksonville City Council agenda for some time.
To recap: in 2014, Ability Housing set out to renovate an apartment building in Springfield to create 12 units of housing for the chronically homeless and disabled.
The planning director balked, likening the proposed use to that of an assisted living facility. Soon thereafter, the Department of Justice, Disability Florida, and Ability Housing sued. And settlement legislation followed.
2017-36, filed in January, would privilege federal civil rights over local zoning exceptions, allowing the goal of reasonable accommodations to take precedence over planned unit developments and other rules restricting the development of group living and assisted living facilities.
However, there is a long way to go for this legislation, with proposed zoning code changes and language nettling virtually everyone in the room outside of the Office of General Counsel and Ability Housing, one of the parties attempting to settle with the city.
LUZ Chair Danny Becton wanted all parties on the same page regarding zoning changes, including the city, Ability Housing, and Springfield activists.
City lawyer Jason Teal noted that the inclusion of these changes in code is intended to comply with the Americans with Disabilities Act after the city “made a mistake” in disallowing the development during the Alvin Brown administration.
“The goal is to try to do what the law requires,” said Teal, “and really no more.”
However, what the federal law required was a matter of spirited debate for three hours Monday.
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Among the changes proposed by the Office of General Counsel were a discussion of requests for reasonable accommodation via administrative deviation to offer “equal opportunity to enjoy housing,” as dictated in the Fair Housing Act.
Christina Parrish of Springfield SPAR cautioned that these changes could affect the entire zoning code.
Lobbyist Paul Harden, advocating for Springfield residents, chimed in that the language “spins administrative deviations to say that … anywhere in the city, you can change the use in a single-family subdivision to be a group home or a treatment facility” via reasonable accommodation.
Council President Lori Boyer noted that these changes substantially expand the zoning administrator’s ability to make changes in terms of permissible use.
Council VP John Crescimbeni likewise objected to the broadness and the perceived malleability of the ordinance; Teal pointed out that the issue is one of reasonable accommodations for disability.
As well, the federal Department of Justice believed this should be resolved via code, rather than policy, when Jacksonville’s OGC contacted them.
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Discussion then moved to the concept of reasonable accommodation, defined in the ordinance as not fundamentally altering the zoning code.
Councilman Becton noted that, as LUZ chair, he “never hear[s] that in a negative way.”
Parrish cautioned that the language was too broad, putting too much authority in the hands of a single zoning administrator.
“This is gobbledy-gook that the planning department loves,” Crescimbeni said. “It’s way too broad.”
Despite objections from the lawyer from Ability Housing, Harden continued to eviscerate the appropriateness of the language, saying that it provided an opportunity for a single person to sidestep for code.
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Semantic discussions continued.
Harden noted that “disability” is defined in federal code, and that there would need to be independent confirmation by a professional in order to satisfy threshold.
“The federal law doesn’t say they get to do away with the zoning code,” Harden stressed.
“Can you discriminate against a disabled person? The answer is no,” said Tom Ingram, on behalf of Ability Housing.
Becton, meanwhile, wondered about the probity of “duplicating federal code.”
Teal said that, while the law is proscriptive, it doesn’t say “what our process in Jacksonville” would be, and that the Department of Justice recommended that a process be developed.
Crescimbeni noted, meanwhile, that the bill was written by two lawyers — and that if they wanted to write legislation, they should run for council.
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A measure of the contentious nature of the discussion: questions from former City Council President Alberta Hipps that there are “subjective” calls made in striking language from the original Springfield Overlay legislation of 2000.
Back then, rooming houses, group care, and automotive uses were itemized as being present in a “disproportionately large number.”
The new legislation just itemizes rooming houses.
While attorney Teal noted that there were changes in Springfield over the last 17 years, there was concern over empirical proof for his findings, with Paul Harden advising a look to ensure “the facts are still the facts.”
“This is an attempt to justify the settlement of that lawsuit,” Harden said.
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The proposed legislation would also define a “community residential home” as discrete from a “rooming house.”
This led to grumbling and then, unavoidably, a review of language in statute.
Harden noted that these homes are not for just kids with disabilities, but also troubled kids and so on.
