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John Nephew

Maplewood City Council Policy & Politics


A Preview of Tonight's CUP Issue

Based on the turnout at the public hearing in front of the planning commission, and the e-mails and phone calls I've received, the most contentious item on our meeting agenda tonight will undoubtedly be Item J3. This item concerns a conditional use permit (CUP) application for a South Metro Human Services residential mental health care facility to be located in the former Ethan Allen building, NW of the intersection of Hwy 36 and Hwy 61.

A considerable number of neighbors are very agitated by the proposal, and testified at the planning commission and in correspondence to the city that the permit should be denied because of the negative impact they believe it would have on their neighborhood. The planning commission voted to recommend approval, but it was a 4-3 vote with the minority wanting to see additional information related to some CUP criteria (in particular the one about not hurting property values).

In case you're following along at home when we discuss this, let me give you some information about the decision that will be in front of the council, and how we'll need to evaluate the CUP application.

First of all, legally, if the applicant satisfies the standards and complies with reasonable conditions that may be set by the city, they're entitled to the conditional use permit.  This is what's known as a "quasi-judicial" decision.

It's also important to understand that our city ordinances can't override state and federal law. When it comes to residential facilities, there are specific state and federal laws designed to protect the disabled (including people with mental illness) from discrimination, including the Fair Housing Act and the Americans with Disabilities Act. If criteria for evaluating a CUP application would have the effect of being discriminatory, they are not valid as grounds for rejecting an application.*

Under state law, we also can't set any conditions for this facility that are more restrictive than what we would apply to a facility that housed or served individuals who are not disabled, unless the requirements are designed to protect the residents of the facility.**

Given that there are facilities nearby that provide a short-term place to live (the motel), and overnight medical treatment (the sleep center just across the highway), and based on the testimony at the planning commission and the e-mails I've received on this topic, I'm hard pressed to find any argument against the proposed use that isn't ultimately based on a desire of some neighbors not to have mentally ill persons in/near their neighborhood.

The "depreciates property values" argument boils down to what one letter from a neighbor, included in the packet, stated bluntly: "We would never have chosen this location [to buy a house] if there were a mental health residential facility within .3 miles of our home." The assertion is that people (including this neighbor) don't want to live near the mentally ill, so a lack of buyers will drive down property values.  Even if true (which does not appear to be the case), the argument is discriminatory on the face of it, and thus can't legally be used to deny a CUP.

I found an interesting document online, called "Fair Housing Law: Zoning and Land Use Issues." In discussing how Fair Housing Act cases have been looked at by the courts, this passage is especially worth reading:

To prove discriminatory intent under the FHA, the plaintiff need only show that the plaintiff’s disability was one factor considered by the defendant in making a land use or zoning decision. The plaintiff’s handicap need not be the sole basis for the defendant’s discriminatory actions. Further, a plaintiff need not demonstrate that the defendant harbors personal animosity, ill will, or a malicious desire to discriminate. Intentional discrimination includes actions motivated by stereotypes, prejudice, unfounded fears, misperceptions, paternalistic attitudes and a desire to respond to certain neighborhood and community concerns.
Denying this applicant's conditional use permit on account of some neighbors' fear or dislike of disabled persons (including the mentally ill) would be both illegal and unjust.

*See 42 U.S.C. § 3615: "any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid."
**See Minnesota Statutes 245A.11. As quoted in the staff report for Monday's meeting, Subdivision 3 of the law includes this language: "A town, municipal, or county zoning authority may require a conditional use or special use permit to assure proper maintenance and operation of a residential program. Conditions imposed on the residential program must not be more restrictive than those imposed on other conditional uses or special uses of residential property in the same zones, unless the additional conditions are necessary to protect the health and safety of the persons being served by the program."

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