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January 14, 2025
REGULAR MEETING
Minutes
I.CALL TO ORDER:
Chair Verner called the meeting to order at 7:00 p.m. at the Civic Center Council Chambers, 1175 E.
Main Street. Commissioners Perkinson and Phillips attended the meeting via Zoom.
Commissioners Present: Staff Present:
Lisa Verner Brandon Goldman, Community Development Director
Eric Herron Derek Severson, Planning Manager
Gregory Perkinson Carmel Zahran, Assistant City Attorney
Russell Phillips Michael Sullivan, Executive Assistant
Susan MacCracken Jain
Kerry KenCairn
Absent Members: Council Liaison:
Vacant
II.ANNOUNCEMENTS
1.Staff Announcements:
Community Development Director Brandon Goldman made the following announcements:
The City’s annual town hall meeting was scheduled for January 22, 2025.
The Jackson County Planning Commission will be hearing a request for the Urban Growth
Boundary line adjustment related to 375 and 475 East Nevada Street on January 15, 2025.
This item previously came before the Commission in 2021, PA-T2-2021-00031.
City Manager Sabrina Cotta will present the updated Commissions and Committees
handbook at the January 28, 2025 Study Session.
Appointments for Council Liaisons to Commissions and Committees will be determined
by the Mayor and are scheduled for January 21, 2025.
The Commission will review an application for the annexation of 300 Clay Street at its
February 11, 2025 meeting.
2.Advisory Committee Liaison Reports – None
III.CONSENT AGENDA
1.Approval of Minutes
a.December 10, 2024 Regular Meeting
Page 1 of 6
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planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1).
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Commissioner MacCracken Jain asked that her question on page 3 of the minutes be amended to
more accurately reflect her inquiry regarding the density requirements of Area 7.
Commissioners Perkinson/Phillips m/s to approve the Consent Agenda with the correction
requested by Commissioner MacCracken Jain. Voice Vote: All AYES. Motion passed 6-0.
IV.PUBLIC FORUM – None
V.INFINISHED BUSINESS
A.Approval of Findings for PA-T2-2024-00054, Kestrel Park Phase III
Chair Verner stated that a non-substantive spelling error in the findings had been pointed out by
Commissioner Phillips to staff. This change was made to the draft findings prior to the meeting.
Commissioners MacCracken Jain/Phillips m/s to approve the findings with the non-substantive
correction noted by Commissioner Phillips. Commissioners KenCairn and Herron recused
themselves due to past involvement with the applicant. Roll Call Vote: All AYES. Motion passed
4-0.
VI.TYPE II PUBLIC HEARINGS
PLANNING ACTION: PA-T1-2024-00255
SUBJECT PROPERTY: 110 Terrace St.
OWNER: Shirley D Patton Trust
APPLICANT: Rogue Planning & Development
DESCRIPTION: This is a request for a formal interpretation of the Ashland Land Use
Ordinance as it applies to how a Peer Respite Home (as defined at ORS 430.626) are
regulated. The interpretation requests that the proposed Peer Respite Home in the existing
residence at 110 Terrace Street be classified as a similar use to types of Group Living that are
permitted in all residential zones, and that such interpretation would provide a reasonable
accommodation consistent with the Fair Housing Act and Americans with Disability Act.
COMPREHENSIVE PLAN DESIGNATION: Single-Family; ZONING: RR-.5; MAP: 39-1E-09-BC; TAX
LOT: 8000
Chair Verner noted that staff had received numerous public comments since the meeting packet
had been distributed (see attachment #1).
Page 2 of 6
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planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1).
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Ex Parte Contact
Commissioners MacCracken Jain, KenCairn, Herron, and Verner disclosed site visits.
Chair Verner disclosed ex parte contact with a member of the public who informed her that this item
was on the agenda.
Commissioner MacCracken Jain disclosed three ex parte contacts, but stated that they were
unsolicited and did not get into the content of the project, merely that this meeting was scheduled.
Staff Presentation
Mr. Goldman briefly described a Peer Respite Center and that the interpretation request argued that
the proposed Peer Respite Home in the existing residence at 110 Terrace Street should be classified as
a similar use to Group Living, that are permitted in all residential zones, and that such interpretation
would provide a reasonable accommodation consistent with the Fair Housing Act and Americans
with Disabilities Act. Mr. Goldman stated that staff’s focus of the interpretation came down to a
determination of whether the proposed Peer Respite Center is a group-living situation, as suggested
by the applicant, or a Traveler’s Accommodation as interpreted by staff per the Ashland Municipal
Code (AMC).
Questions of Staff - None
Applicant Presentation
Property owner Kent Patton stated that this facility would serve the community by assisting those
who suffer from mental illness or are unable to help themselves.
Attorney for the applicant Jennifer Bragar stated that federal law requires a dialogue between the
City and the applicant for such a project, but that the City does not have reasonable
accommodation processes and has not been in communication with the applicant since the
proposal was submitted. Ms. Bragar stated that only one Peer Respite Center had been approved in
Jackson County thus far.
Ms. Bragar stated that no person seeking respite would be charged rent, unlike short-term tourists,
and that residents would return to it when needed, which would designate the facility as a home
under the Fair Housing Act.
Questions of the Applicant
Commissioner Herron asked if the owner would live on site. Ms. Bragar responded that they would
not.
Commissioner MacCracken Jain asked if the applicant sought other locations for the facility that
Page 3 of 6
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planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1).
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would not require accommodations. Ms. Bragar responded that no RR.5 Zone would permit this
facility.
Public Comments
The following public speakers spoke in favor of the applicant:
Tom Stenson
Victor Rico
Debbie Neisewander
Grace Pettygrove
The following speakers spoke in favor of the staff interpretation:
Rob Patridge
Sydnee Dreyer
Ron Rusnak
Karen Grove
Jay Ach
David Allman
David Downey Jr.
James McGinnis
Mr. Goldman read a public comment that was submitted into the record by the Fair Housing Council
of Oregon just prior to the meeting (see attachment #2).
Applicant Rebuttal
Applicant Shirley Patton stated that she regretted any distress that the application had caused her
former neighbors but that the proposed home would benefit those in need. Ms. Bragar requested
that the meeting be continued and that the record be left open to allow additional testimony to be
submitted.
The Public Hearing was closed at 8:45 p.m.
The Public Record was left open to allow written testimony to be submitted by 4:30 p.m. on January
22, 2025. Any party-of-record will then have until 4:30 p.m. on January 30, 2025 to offer a rebuttal to
those comments received by January 22. The applicant will have until 4:30 p.m. on February 7, 2025
to offer final arguments or comments.
PLANNING ACTION: PA-T1-2024-00254
SUBJECT PROPERTY: The Oaks of Ashland Open Space - Sutton Place (Tax Lot #1600)
554 Sutton Place (Tax Lot #1500)
562-570 Sutton Place (Tax Lot #1800)
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planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1).
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PROPERTY OWNERS: The Oaks of Ashland Homeowners Association(HOA)(Tax Lot #1600)
Mukesh & Sheetal Sheoran (554 Sutton Place, Tax Lot #1500)
Bruce A. Theisen Trust (562-570 Sutton Place, Tax Lot #1800)
APPLICANTS: Vincent Haynes, Michael Thornton and Fred Frantz for The Oaks of Ashland HOA
DESCRIPTION: A request for an amendment of The Oaks of Ashland subdivision
approval (PA #2000-127) to remove a condition of approval which required that a Public
Pedestrian Access Easement (PPAE) be provided to connect Highway 66 to Sutton Place
through the subdivision open space and continuing on between the properties at 554 Sutton
Place and 562/570 Sutton Place. COMPREHENSIVE PLAN DESIGNATION: Single-Family; ZONING:
R-1-10; MAP: 39 1E 11 DD; TAX LOTS: 1500, 1600 & 1800
Ex Parte Contact
Commissioners Herron, KenCairn, and Verner disclosed site visits. Chair Verner disclosed that she
was approached by a former Commissioner about this project.
Staff presentation
Planning Manager Derek Severson briefly described the subject easement, properties, and as-built
plans from the Public Works Department. He stated that the planned pedestrian connectivity had not
been realized and that existing slopes discouraged the easement’s full use. Staff recommended that
the Commission approve the requested modifications to Condition #17 of the Oaks of Ashland
Subdivision approval, PA-2000-127, with the addition of two conditions suggested by staff.
Applicant Presentation
Applicant Vincent Haynes, President of the Oaks of Ashland Homeowner’s Association (HOA) stated
that the removal of the easement would not deprive nearby residents of any key aspects of the HOA,
and the its removal would benefit the neighborhood and requested that the application be
approved.
Chair Verner closed the Public Hearing and Public Record at 9:06 p.m.
Deliberations and Decision
Commissioners Perkinson/KenCairn m/s to support staff’s recommendation and approve the
request with the two conditions suggested by staff. Roll Call Vote: All AYES. Motion Passed 6-0.
VII.OPEN DISCUSSION
Chair Verner asked if any Commissioners wished to put forth a candidate for Vice-Chair.
Commissioners Phillips/Herron m/s to elect Commissioner KenCairn as Vice-Chair. Voice Vote: All
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planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1).
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AYES. Motion Passed 6-0.
Chair Verner stated that the Mayor had appointed John Maher to occupy the vacant seat on the
Commission.
VIII.ADJOURNMENT
Meeting adjourned at 9:12 p.m.
Submitted by,
Michael Sullivan, Executive Assistant
Page 6 of 6
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planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1).
Jennifer M. Bragar
121 SW Morrison Street, Suite 1850
AttorneyPortland, Oregon 97204
Admitted in Oregon, Washington, Tel503-894-9900
and CaliforniaFax 971-544-7236
jbragar@tomasilegal.comwww.tomasilegal.com
December 6, 2024
City of Ashland Planning Division
Attn: Brandon Goldman, Community Development Director
20 E Main Street
Ashland, OR 97520
Re: Reasonable Accommodation Request and Code Interpretation
Dear Mr. Goldman,
Thisoffice represents Stabbin' Wagon ("Applicant"), a grant recipient ofthe Oregon Health
Authority ("OHA"). The OHA grantenablesApplicant to operate a respite home at property
located at 110 Terrace Street, Ashland, Oregon (the "House"). This letter is submitted in
conjunction with Rogue Planning & Development Services, LLC's application materials to provide
additional support for the requested code interpretation coupled with a reasonable accommodation
request under the Fair Housing Act ("FHA") and Americans with Disability Act ("ADA").
I.Applicant's request for a Reasonable Accommodation
Under Ashland Municipal Code ("AMC") 18.1.5.040 Similar Uses, the code states,
"Where a proposed use is not specifically identified by this ordinance or the ordinance is
unclear as to whether the use is allowed in a particular zone the Staff Advisor may find the
use is similar to another use that is permitted, allowed conditionally or prohibited in the
subject zone and apply the ordinance accordingly."
Ashland's Group Living definition statesthat "Group living is characterized by the long-term
residential occupancy of a structure by a group of people… Group Living structures do not include
self-contained units but rather have common facilities for residents including those for dining,
social and recreational, and laundry." AMC 18.6.1.030. The definition then lists some types of
Group Living facilities, including Residential Care Home, Residential Facility, and Room and
Board Facility. Nothing in the definition language states that the list is exhaustive.
The Applicant intends to use the House for long-term residential occupancy by a group of
people, with the group changing periodically. Applicant's peer respite housing OHAgrant allows
up to four (4)to six (6) individuals to stay at the House for up to fourteen (14) days for individuals
experiencing mental illness. This respite allows individualsto be housed and providestime to
reset their mental and/or physical state and be linked to other services to help them out of their
crisis.
TBDB
OMASI RAGAR UAY
December 6, 2024
Page 2
ORS 430.275(1) defines peer respite services:
"(a) 'Peer respite services' means voluntary, nonclinical, short-term residential peer support
provided:
(A)In a homelike setting to individuals with mental illness or trauma response symptoms
who are experiencing acute distress, anxiety or emotional painthat may lead to the need
for a higher level of care such as psychiatric inpatient hospital services; and
(B)By a peer-run organization and directed and delivered by individuals with lived
experience in coping with, seeking recovery from or overcoming mental illness or trauma
response challenges." (Emphasis added).
Therefore, by definition, the individuals who will reside in the House qualify as disabled under the
FHA and ADA, and state law. 42 U.S.C. §§ 3601-19, 42 U.S.C. §§ 12010, 12132, ORS
659A.145(2)(c).
The respite service use of the House is most similar to the definition ofGroup Living, with
individual rooms and communal space as contemplated in the City code. Further, during the
respite, individuals will treat the House as a dwelling. Courts have given the FHA's definition of
dwelling a generous construction, where the length of stay is not the only factor, rather the intended
use of the property is included in the determination. Louisiana Acorn Fair Housing v. Quarter
House, 952 F. Supp. 352, 359 (E.D. La. 1997). As the individuals who will reside at the House
have an intent to treat the House as a temporary dwelling place, the House is a dwelling under the
FHA. Woods v. Foster, 884 F. Supp. 1169, 1173 (N.D. Ill. 1995). The fact that the Oregon Health
Authority is funding the useof the House so that residents will not be required to pay rentdoes not
defeat the protection of the individuals who will reside therein. Id. at 1175.
When requested, the ADA and FHA require municipalities to make reasonable
modifications to their zoning laws to allow housing for people with disabilities. Onbehalf of
disabled individuals who will reside in the House that would be allowed after this similar use
interpretation, the Applicant makes this reasonable accommodation request. If the City enforces
AMC requirements that place additional burdens on properties designated for people with
disabilities or allows discrimination in zoning against people with disabilities, they are deemed
invalid, or otherwise need to be modified to allow the proposed housing to be accommodated. The
Applicant requests a reasonable accommodation and asks that theCitynot apply any vague or
discretionarystandards, including any conditional use criteria, to approve this application and
allow respite at the House as a permitted use, and to find the use is similar to Group Living facilities
allowed as permitted uses in residential zones.
II.Applicant's request for a Similar Use Interpretation
With this introduction and justification for a reasonable accommodation, the following are
the Applicant's proposed findings for an interpretation to allow the respite use of the House. The
code provisions are italicized and the proposed findings in regular font.
TBDB
OMASI RAGAR UAY
December 6, 2024
Page 3
AMC 18.1.5.030 Interpretation Criteria
Any interpretation made through the foregoing procedures shall be based on the following
criteria:
A.The interpretation is consistent with applicability policies of the Comprehensive Plan.
Proposed Finding:
Therequested interpretation is consistent with applicable policies of the Comprehensive Plan
relevant to Land Use Classifications which speak to the purpose of the residential categories as
establishing land use intensity by assigning different densities to different areas. Comprehensive
PlanSection 2.04 (Land Use Classifications). The residential classifications are not intended to
specify types of uses but rather the number of dwelling units per gross acre.
The use does not impact the density, or intensity of use in the neighborhood as nothing prevents a
similar residential house in this zone from having visitors stay at their house for up to two weeks
at any time throughout the year with no other regulation.Other family use of dwellings in this
zone place no limit on occupancy as families can be as large as desired, and often married couples
share rooms, as do children. In contrast to how a typical family is allowed to intensely use their
house in this zone,theApplicant proposes to limit the maximum respite useof the House to four
individuals to sleep in each available bedroom. Further, the use of a four bedroom dwelling for
four individuals does not impose a greater demand on public facilities than anticipated when the
home at 110 Terrace Streetwas originally built, which is also consistent with the Comprehensive
Plan. As imagined in the Ashland Comprehensive Plan, density regulations are adopted in the
code, and this House is a pre-existing house that meets the City's density requirements.
Comprehensive Plan Section 2.04.
As the City considers the Applicant's request and these findings, it should continue to keep in mind
the Applicant's reasonable accommodation request. The FHA prohibits disability-related
discrimination in housing matters, including the zoning and land use process. 42 U.S.C. § 3604.
Title II of the ADA also prohibitsgovernment agencies from discriminating against people with
disabilities. 42 U.S.C. § 12132. Instead of engaging ina notion that the proposed interpretation
should not be granted, the City should consider the effect on people with disabilities who would
be denied housing when families residing in residentially zoned areas are not treated to the same
type of restrictions and monitoring of its occupants as a respite home.
Further, the Comprehensive Plan at Section 5.21 recognizes that Ashland has some of the lowest
incomes in Jackson County, and Section 5.23 recognizes that population growth will increase the
cost of housing. Thus, when low income people experience mental illness, they also lack the
personal financial strength to find care, housing,and services. The Applicant's peer respite
proposal is consistent with the types of solutions necessary to address the stated Goal at
Comprehensive Plan Section 5.25 by providing for the needs of the expected population growth,
including low income individuals through this housing opportunity and connection to services for
such low income individuals.
TBDB
OMASI RAGAR UAY
December 6, 2024
Page 4
Allowing use of an existing dwelling ona pre-existing residential lot is consistent with the Housing
Element. Further, the Housing Element, Comprehensive Plan Section 6.04, recognizes that
subsidized housing would be used to meet the needs of low income residents. See also
Comprehensive Plan Section 6.11(4)(b). OHA's grant for the House is an example of such
subsidized housing and is consistent with the Comprehensive Plan's anticipated method of
providing low income housing. Moreover, the Comprehensive Plan states thatdetached single
family housing will"unfortunately only be available to persons of relatively high income."
Comprehensive Plan Section 6.05. Applicant's proposal broadens the opportunity for low income
people to access otherwise exclusionary housing types. The stated goal in the Housing Element
is, "Provide Housing Opportunities For The Total Cross-Section Of Ashland's Population,
Consistent With Preserving The Character And Appearance Of the City." Comprehensive Plan
Section 6.10. Since no outward changes are required to the façade of the House,except for some
ADA-accessible adjustments,and the proposed respite use provides housing opportunities for an
often ignored segment of the population, thisgoal of the Comprehensive Plan will also be
achieved.
The proposed use of the House as a peer respite is most similar in type, kind and function as a
Group Living use, which includes a type of group living use that is permitted in all residential
areas. For example, a similar use, Residential Care Homes, are permitted in all residential zones.
AMC Table 18.2.2.030. From an intensity of use perspective, Residential Care Homes, house five
or fewer individuals, and would be allowed at 110 Terrace Street. AMC 18.6.1.030 and ORS
443.400. From a land use and housing perspective, the use by individuals who benefit from peer
respite are not significantly different from residents of Residential Care Homes. Based on this
context, Applicant's reasonable accommodation request and interpretation should be approved.
B.The interpretation is consistent with the purpose and intent of the ordinance provision
that applies to the particular ordinance section, or sections, in question.
Proposed Finding:
The requested interpretation is consistent with the purpose of the residential zones, which is linked
1
to the general purpose of the Land Use Ordinance under AMC 18.2.2.010 and 18.1.2.020.Under
AMC 18.1.2.020,
"The purpose of the Land Use Ordinance is to encourage the most appropriate and efficient
use of land; to accommodate orderly growth; to provide adequate open space for light and
air; to conserve and stabilize the value of property; to protect and improve the aesthetic and
visual qualities of the living environment; to aid in securing safety fromfire and other
dangers; to facilitate adequate provisions for maintaining sanitary conditions; to provide
for adequate access to and through property; and in general to promote the public health,
safety, and the general welfare, all of which is in accordance with and in implementation
of the Comprehensive Plan. Race, color, religion, sexual orientation, gender identity,
1
AMC 18.2.2.010 is essentially a cross reference to AMC 18.1.2.020 where it states, "Chapter 18.2.2 regulates allowed
land uses pursuant to the Comprehensive Plan and the purposes of this ordinance, per chapter 18.1.2." As stated under
subsection A, the Applicant's requested interpretation is consistent with the Comprehensive Plan.
Memo
To: City of Ashland Planning Commission
From: Carmel Zahran, Assistant City Attorney
Date: 1/3/2025
Re: Letter of Interpretation – Re. 110 Terrace Street, Ashland OR
Introduction
This matter was introduced to the City of Ashland (“City”)’s legal department by Rogue Planning
and Development (the “Applicant”), who requested a land use interpretation according to the
procedure outlined in Ashland Municipal Code (“AMC”), Chapter 18.1.5 regarding the
Applicant’s request to operate a “Peer Respite Center” (as defined in ORS 430.275.1) at 110
Terrace Street, Ashland, Oregon, within an R-1 zone.
Issue:
The Applicant asserts that the use is permissible under the Ashland Municipal Code, specifically
arguing it falls under the definition of "group living." It is this office’s opinion that the structure
and 14-day maximum occupancy for those individuals who might utilize the Peer Respite Center
does not constitute a “long-term residential occupancy,” which is a key component of the
“group living” definition:
“Group Living. Group living is characterized by the long-term residential occupancy of a
structure by a group of people. The size of the group typically is larger than the average
size of a household. Group Living structures do not include self-contained units but
rather have common facilities for residents including those for dining, social and
recreational, and laundry. Residential Care Homes, Residential Care Facilities, and Room
and Board Facilities are types of Group Living.” AMC 18.6.1.030.
Application:
The Applicant’s central argument hinges on the interpretation of “long-term residential
occupancy.” They contend that while the individuals served by the respite center will stay only
up to 14 days, the consistency of the group served (individuals experiencing mental health
challenges) equates to long-term occupancy in a functional sense. However, it is a
misapplication to apply the consistency of a group, rather than the individual, to the legal
standard of who constitutes to be a “long-term” resident.
The definition of “group living” is anchored in the duration and permanency of individuals’
residency, which is supported by a plain reading of the ordinance and its surrounding context.
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Memo
The three specific examples provided in the code as forms of “Group Living” are “Residential
Care Homes,” “Residential Care Facilities,” and “Room and Board Facilities.” The first two
examples contain the word “residential” in their titles, implying that these homes and care
facilities serve as the permanent residences of the individuals who live and receive professional
care at these facilities. Similarly, the definition of Room and Board Facilities also implies a level
of permanency, citing examples such as dormitories, fraternities, sororities, and boarding
houses, and explicitly statesthat these facilities must have a minimum stay of 30 days.
While it's true that individuals served by the respite center may share common characteristics,
this does not negate the temporary nature of an individual’s stay. The Applicant's argument
more appropriately applies to short-term rentals or other temporary accommodations, which
are not considered “long-term” residential occupancies. Notably, thedefined terms “Travelers’
Accommodation” and “Travelers’ Accommodations” specify that the duration of occupancy is
to be less than 30 days.AMC 18.6.1.030.
The Applicant points to the context behind the program, which is funded by the Oregon Health
Authority (OHA), implying that this funding demonstrates the long-term nature of the
operation. However, this funding merely supports the project's temporary operational goals,
which are aligned with a short-term program. The 14-day limit explicitly defined in the OHA
grant contradicts the notion of long-term residency. This limitation indicates a temporary,
short-term service model that is incompatible with the definition of “group living,” as provided
in the AMC. The nature of the OHA grant strengthens the argument that this is a short-term
assistance program.
The Applicant raises concerns regarding FHA and ADA compliance, suggesting that the City's
denial amounts to discriminatory housing and disability rights practices. The City fully
acknowledges the importance of ensuring equal and non-discriminatory housing and zoning
practices. However, the City's denial is not based on the Applicant's outreach goals but rather
on a reasonable interpretation of the existing zoning regulations. In other words, the City is not
rejecting the Applicant but is instead rejecting the proposed usebased on existing land use
code(i.e., the interpretation of short-term versus long-term).
The two cases cited by the Applicant exhibit significant differences from the subject application.
In Louisiana Acorn Fair Housing v. Quarter House, 952 F. Supp. 352 (E.D. La. 1997), the
defendant, Quarter House, operated as a timeshare resort that engaged marketing
representatives to recruit prospective residents. However, their qualification criteria were
discriminatory against various protected categories, explicitly stating that prospective buyers
could not be “1) African American; 2) aliens; 3) of mid-Eastern or Indian cultures or religions; 3)
physically unable to climb stairs; and pregnant women, families with more than two children or
families with children under the age of 10” (Id. at 354). In Woods v. Foster, 884 F. Supp 1169
(1995), the Defendant was a homeless shelter where Plaintiff’s ability to stay and receive
2
Memo
assistance depended on providing sexual favors to facility managers. In both cases, the court
recognized the clear and overt discrimination against these vulnerable individuals, extending
FHA protection to the Plaintiffs based on their interpretation of the term "dwelling."
However, the Applicant's assertion that the ADA and FHA "require municipalities to make
reasonable modifications to their zoning laws," using these two cases as a basis for their
conclusion, is misleading because neither case involved the court instructing a municipality to
change existing zoning regulations. In fact, the terms "zone" and "zoning" were not mentioned
oncein either case. The Applicant's argument would be more appropriately applied if the City
were, hypothetically, denying individuals access to a properly-zoned shelter care in a
discriminatory manner—which the City neither does nor would ever do.
The City's commitment to providing reasonable accommodations under the ADA and its
obligations to comply with applicable FHA regulations are distinct from the proposal to
fundamentally alter zoning regulations to accommodate a specific use that does not conform to
existing definitions. The Applicant is encouraged to seek alternative locations that are properly
zoned to accommodate the services they provide. Although arguments regarding the FHA's
applicability to “dwellings” may be valid in contexts involving discriminatory treatment of
individuals or groups denied housing access, this particular scenario does not fit that
framework.
Conclusion:
In conclusion, the Applicant’s proposed use of the property does not meet the definition of
"group living" as defined in the Ashland Municipal Code. This determination is supported by the
temporary nature of the occupancy, the 14-day residency limit imposed by the OHA grant, and
the lack of evidence to support a "long-term" residential interpretation.
Additionally, while the City is committed to ensuring compliance with the FHA and the ADA, the
interpretation of zoning regulations must remain consistent with established definitions. This
conclusion in no way diminishes the value of the program and the benefit it would likely
provide to members of the community. Rather, it is through a fair, impartial, and neutral
reading of the ordinance and its surrounding context that we disagree with the Applicant’s
interpretation of “group living” to authorize the Peer Respite Center in an R-1 zone.
3
January 13, 2025
City of Ashland Planning Commission
20 E. Main Street
Ashland, OR 97520
Letter Re Application PA-T1-2024-00255, Subject Property : 110 Terrace Street
Chair Verner, Vice-Chair Knauer, and Members of the Planning Commission:
On behalf of Disability Rights Oregon, I submit the attached letter as a comment regarding the
discussion of the proposed development of the above-captioned proceeding at 110 Terrace Street
in Ashland.I am the Deputy Legal Director for Disability Rights Oregon, a federally-designated
nonprofit that represents the rights of people with disabilities throughout Oregon, protecting them
from abuse and neglect. The housing development at issue here is designed to promote
independent living for people with mental illness, by allowing respite housing with peer supports.
Disability Rights Oregon does not have any kind of representation agreement with any of the
prospective residents of the respite housing program. DRO instead writes at this time as a
nonprofit designated by the federal government to promote the rights of people with disabilities.
See Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1113-1116(9th Cir. 2003) slate(holding DRO,
formerly known as the Oregon Advocacy Center, had standing to seek judicial relief on behalf of
class of individuals with mental illness).
Across the state and within Jackson County, people with mental illness find limited access to
housing an enormous barrier to living in the community, often forcing them to remain in
institutional settings or, alternately, to live without any housing at all. -analysis
of barriers to fair housing specifically identified land use rules as a source of discrimination and a
barrier to housing. In Ashland, discrimination appears to primarily impact
1
peoples who experience a physical or mental disability Id. at 31. Ashland reports that the
majority of fair housing issues reported are issues pertaining to peoples with disabilities Id. at
12.People with mental illness should not be denied the right to live in the community based on
discriminatory attitudes and prejudice.
Backdrop of Federal Nondiscrimination Law
Many state and federal laws promote equal access to housing and prohibit discrimination on the
to understand the current matter.
The federal Fair Housing Act prohibits disability-related discrimination in housing matters,
City of Ashland, 2020-2024 Fair Housing Analysis of Impediments to Fair Housing Choice, Update for the
1
City of Ashland, June 1, 2020, at 34 available at
https://ashlandoregon.gov/DocumentCenter/View/1472/2020-2024-Analysis-of-Impediments-Update-PDF
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including the zoning and land use process. 42 U.S.C. § 3604. In Pacific Shores Properties, LLC v.
City of Newport Beach, the Ninth Circuit denied a motion to dismiss a challenge to local
ordinances that, while not prohibiting group homes outright, permitted land use hearing officers to
e. 730 F.3d
1142, 1152 (9th Cir. 2013). Evidence of either an intent to discriminate against people with
disabilities or an effect of preventing people withdisabilities from getting housing gives rise to a
claim under the Fair Housing Act. Id. at 1162-63.
Title II of the Americans with Disabilities Act also prohibits a government agency from
discriminating against people with disabilities. 42 U.S.C. § 12132. In Bay Area Addiction Research &
Treatment, Inc. v. City of Antioch
through its zoning processes to halt the establishment of a methadone clinic within the city. 179
F.3d 725, 730 (9th Cir. 1999). The Second Circuit affirmed a preliminary injunction granting a permit
to a drug clinic, wh
political pressure from the surrounding community brought on by the prospect of drug- and
alcohol-Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 49 (2d
decisions, it may not base its decisions on the perceived harm from such stereotypes and
Id.
In addition to prohibitions of intentional discrimination and disparate impact discrimination, both
the ADA and the Fair Housing Act require public bodies, such as a land use board or planning
commission, to make reasonable accommodations to people with disabilities and homes
designed for people with disabilities. City of Edmonds v. Washington State Bldg. Code Council, 18
F.3d 802, 806 (9th Cir. 1994), aff'd sub nom. City of Edmonds v. Oxford House, Inc., 514 U.S. 725
(1995); Pac. Shores Properties, 730 F.3d at 1157 n.15. People with disabilities have the right to
people with disabilities. City of Edmonds, 18 F.3d at 806.
Other anti-discrimination laws apply to this matter. The Rehabilitation Act prohibits any entity that
receives federal funds from discrimination against people with disabilities. 29 U.S.C. § 794. The
Equal Protection Clause of the Fourteenth Amendment prohibits discrimination because of
irrational bias. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985) (requiring a
special use permit for a home for people with disabilities where other residential uses would not
was based only in irrational bias and violated the Fourteenth Amendment). Oregon state law also
prohibits making distinctions in the availability of real property based on whether the person
intended to occupy the property has a disability. ORS 659A.145(2)(c).
General Principles of Non-Discrimination Law in Zoning and Land Use Decisions
Decisions of courts interpreting zoning laws and land use decisions, as understood in light of the
nondiscrimination laws described above, distill down to three simple requirements: 1) local
governments cannot impose restrictions or conditions on housing for group homes and other
housing for people with disabilities that are not imposed on conventional residential housing, 2)
local governments must offer reasonable accommodations to people with disabilities in the zoning
and land use process, and 3) local governments may not rely on broad, generic negative
stereotypes about people with disabilities. City of Cleburne, 473 U.S. at 449; Innovative Health
Sys., 117 F.3d at 47; Bay Area Addiction, 179 F.3d at 735; Pacific Shores Properties, 730 F.3d at
Ћ
1165. The government cannot deny a permit in an act of public discrimination, and it may not
incorporate private discriminationespecially that received through public testimonyin its
decision-making process. Innovative Health Sys., 117 F.3d at 49 (describing as evidence of
- and alcohol-
application on the basis of gener
would put local zoning ordinances above the federal nondiscrimination laws that apply. Innovative
Health Sys., 117 F.3d at 42.
2
Placing the Proposal in the Context of the Ashland Code
The petitioner is seeking approval for development of a home for people with mental illnesses. The
living in a common environment for people with mental illnesses over a time period of up
to 14 days at a time. ORS 473.275. The residents would receive services from peer supports. The
proposed site is located in a low density RR-.5 rural residential single family residential zone.
dwelling under applicable building
codes and providing complete, independent living facilities for one family, including permanent
Ashland Muni. Code 18.6.1.030. A
-
Id. , marriage, legal
adoption, or guardianship; or not more than five persons who are not related by blood, marriage,
Id. -term residential
occupancy of a structure by a group of people. . . typically larger than the average size of a
Id. a
who nee Id.
Under Table 18.2.2.030, the only permitted uses in an RR zone are agriculture, a single-family
dwelling, a park or other recreational facility, a public school, and a residential care home. Other
uses fall under the special or conditional use provisions, or are outright prohibited. A peer support
respite care setting is not defined in the code. The first question appears to be whether the
proposed use constitutes or strongly resembles another characteristic permitted use in the RR
zone.
The Proposed Use Should Be Compared to a Single-Family Dwelling
Disability Rights Oregon views any limitation of federal law on the Ashland Municipal Code as mandated by
2
not conflict with federal law. In the alternative, DRO would propose that the City of Ashland should grant a
reasonable accommodation or reasonable modification of policy to ensure that private discrimination does
not keep people with disabilities from finding housing, by declining to enforce those municipal law provisions
in this instance. 42 U.S.C. § 3604(f)(3)(B); 28 C.F.R. § 35.130(b)(7).
Ќ
Here, the proposed use appears to qualify, with one possible exception, as a single-family
dwelling. The proposed use involves placement of 4-6 people in a common dwelling equipped with
provisions for cooking, living, sleeping, and sanitation. Although the staff report discusses the
--family
-term cohabitation. Indeed, it would be bizarre if the
city of Ashland began policing single family residences to ensure that children coming home to visit
their parents always stayed for at least 30 days.
The sole definitional problem potentially challenging the use as a single family dwelling would be
those instances where all six beds were taken up. However, under the federal Fair Housing Act, a
definition of family that allows any number of related people to live in the same household, while
restricting the number of unrelated people who live in the same household may tend to
discriminate against people with disabilities and reasonable accommodations to such a
requirement under this provision may be necessary. City of Edmonds, 18 F.3d at 807. Here,
because the proposed respite site would not always exceed the limitation on more than five
unrelated people
only six unrelated people, rather than five, offering to treat the respite home as a single-family
home for zoning purposes would be at best a mild tweak to a condition for occupancy which, one
assumes, is rarely enforced. Children's All. v. City of Bellevue, 950 F. Supp. 1491, 1499 (W.D.
Wash. 1997) (invalidating occupancy requirements that treated people with disabilities differently
than dwellings comprised solely of relatives); ReMed Recovery Care Centers v. Twp. of Willistown,
36 F. Supp. 2d 676, 688 (E.D. Pa. 1999) (expanding zoning restriction of 5 unrelated residents to 8
was reasonable and would not defeat purposes of occupancy requirement).
DRO assumes that numerous cohabiting and hybrid families occupy single family residences in
Ashland and greatly doubts that the city of Ashland routinely checks marriage licenses and birth
certificates to review
it illegal for, say, an unmarried couple to reside in a single family home, each with two children from
other relationships, or for a cohabiting unmarried couple to have four foster children. DRO also
areas, have frequent guests and visitors that periodically tip the occupancy requirements outlined
for a single family home. If Ashland is prepared to deny this reasonable accommodation, it should
be prepared to show that it routinely polices the requirements of familial relationships by checking
marriage licenses and birth certificates. Ashland is unlikely to prevail in showing a
nondiscriminatory purpose or that the proposed accommodation is unreasonable, if Ashland only
polices the details of this occupancy requirement for homes for people with disabilities.
The Proposed Use Could Also Be Compared to Group Living
The Ashland City Code does permit group living in one context in the RR zone: a residential care
home. Table 18.2.2.030, Ashland Municipal Code. In response to the petitioners request to treat
the respite home like a group living setting, Ashlands planning staff has object that group living
must be long-term residential occupancy. Ashland has refused either to treat the respite home
as a permitted group living arrangement or to offer a reasonable accommodation to waive the
long-term element. Long-term occupancy indicates occupancy for 30 days or more.
Ashlands response on this point does not explain why the long-term element is so essential that it
Ѝ
cannot be waived. Many other permitted uses in the RR zone involve short-term use or periodic
high rates of use. For instance, schools and parks are permitted in the RR zone, both of which have
times of very high use, as anyone who has lived across from an elementary school at 8 AM on a
weekday or across from a municipal park on a Saturday afternoon in the spring could say. If
anything, it will subject the neighborhood to less traffic, fewer parking problems and fewer
disruptions to the neighborhood that any or all of the uses specially referred to.Judy B. v. Borough
of Tioga, 889 F. Supp. 792, 800 (M.D. Pa. 1995). For that matter, even the citys definition of a
single-family dwelling does not require a long-term occupancy. Nothing in the code clearly
prevents homeowners from leasing or subleasing their home for short periods of time. A quick
review of VRBO and AirBnB postings shows dozens of homes for rent for short periods of time in
residential zones of Ashland, either where travelers accommodations are prohibited or where
conditional use permits are required but are not listed in theadvertisement. Taking steps to
3
enforce a short-term occupancy requirement selectively against homes for people with disabilities
violates the FHA. Pac. Shores Properties, 730 F.3d at 1164.
Further, the area in question is carved up virtually block-by-block into numerous small zones, close
together. This is not some large, homogenous residential zone. The Terrace Street location lies in
the immediate vicinity of Lithia Park, a heavily traveled central tourist attraction for the city. The
site in question is a few blocks away from dedicated bed and breakfasts and a very short distance
from the main downtown zone of Ashland.
In fact, the only context of the long-term requirement that has any effect in the Ashland Municipal
Code is on the group living definition, which largely regulates homes for people with disabilities.
Ashland may not impose on homes for people with disabilities a long-term use requirement that
the code does not impose on other people, nor does Ashland actively enforce such a requirement
against people without disabilities.
The staff report and legal memorandum describes long-term residential occupancy as a key
component of the zoning law but provides no explanation as to what municipal interests lie with
temporary residency as opposed to long-term residency. A temporary resident will, presumably,
use the streets, sewers, utilities, and other common resources of the community to more or less
the same extent as a long-term resident, especially to the extent that long-term residency
includes renters for periods of only 30 days. Residents staying for 30 or 60 days are not particularly
more likely to forge a community, to plant trees, or to make capital investments in their homes than
residents staying for 14 days. Nor does the staff report or legal memorandum explain why short-
term residency is incompatible with other permitted uses of the space, like parks and schools, nor
why the permitted use of a single-family dwelling does not require long-term occupancy.
Ordinarily, the short-term occupancy of a residence is not at odds with the long-term occupancy
requirements in a residential area, such that the short-term occupancy or respite usage is
inconsistent with the residential character of a neighborhood. Step By Step, Inc. v. City of
Ogdensburg, 176 F. Supp. 3d 112, 126 (N.D.N.Y. 2016) (housing for respite/hospital diversion
constituted a dwelling for Fair Housing Act purposes); Connecticut Hosp. v. City of New London,
129 F. Supp. 2d 123, 134 (D. Conn. 2001) (short-term shelter residents with disabilities are not
transient guests for FHA purposes); Corp. of Episcopal Church in Utah v. W. Valley City, 119 F.
Ќ
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Supp. 2d 1215, 1222 (D. Utah 2000) (city was required to engage in interactive process to
determine reasonable accommodation, even while city asserted short-term shelter would be
essentially a hotel not permitted in the zone). Short-term placements and shelters have often
found substantial support in the Fair Housing Act, and Ashland presents no evidence or theory for
why short-term residency is dramatically worse in the present settingindeed, it has presented no
argument for why short-term residency is particularly bad at all, other than treating short-term
residency as somehow an evil in itself.
Requirements to Make Reasonable Accommodations
The City of Ashland states baldly that its commitment to providing reasonable accommodations
is distinct from the proposal to fundamentally alter zoning regulations to accommodate a specific
use that does not conform to existing definitions. Legal Memo, Jan. 3, 2025. To the extent that the
city understands the application to require the city to amend its ordinance, I believe the city
misunderstands both the proposal of the applicant and the scope of the reasonable
accommodation. However, the city never explains what about its zoning requirements, either
around the long-term requirement or the occupancy standards are so essential that they cannot
be waived in this instance. The city states, without explanation, that interpretation of zoning
regulations must remain consistent with established definitions. In short, the citys response
indicates that no reasonable accommodation is possible that would require result in an outcome
at odds with its zoning laws. The city fundamentally misunderstands the applicable law which
prohibits refusal to make reasonable accommodations in rules, policies, practices, or services. . .
. 42 U.S.C. 3604(f)(3)(B).
In passing the Fair Housing Act,
accommodation . . . if necessary to permit a person with handicaps equal opportunity to use and
Giebeler v. M & B Assocs., 343 F.3d 1143, 1148 (9th Cir. 2003) quoting H.R. Rep.
No. 100711, at 25 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2186. It is well-settled that 42
U.S.C. § 3604(f)(3)(B) imposes an affirmative duty on public agencies to reasonably
accommodate disabled individuals by modifying administrative rules and policies. McGary v. City
of Portland, 386 F.3d 1259, 1264 (9th Cir. 2004). This requirement extends to municipal zoning
ordinances. Id. This obligation to provide reasonable accommodations in zoning likewise stems
from the ADA as well. Id. at 1269. The citys apparent determination that its zoning laws cannot
possibly bear any exception in order to accommodate the needs of people with disabilities is
unlawful.
Instead, once a person makes a reasonable accommodation request and demonstrates that the
accommodation is possible, the burden of proof then shifts to the municipality to produce
rebuttal evidence that the requested accommodation is not reasonable. Giebeler, 343 F.3d at
1156. The City has produced no evidence that the proposed accommodationto allow
development of a respite care home for 4-6 people in an RR-zoned locationis not reasonable,
beyond stating that it can make no exceptions to its zoning laws. The Citys refusal to respond
meaningfully and to engage in an interactive process violates the ADA and the Rehab Act. Vinson v.
Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002).
Although hardly essential to this analysis, this writer notes that no such integrity of the zoning
ordinances is at stake. A peer respite group home is not specially described anywhere in the zoning
ordinances of the city. The citys position relies, not on a specific determination of the city council
Џ
that a peer respite group home is unsuitable in this zone, but upon a fairly strained comparison
between the proposed usage and the definition of travelers accommodations, even though the
individuals in question are not travelers, and the rooms are not rented or kept for rent. The staff
analysis elevates the duration of the stay as the single determinative factor, without explaining why
that element is essential. The staff analysis asserts somehow that Ashlands focus is on
permanent housing, without reconciling this supposed interest in Ashlands willingness to
accept stays of 30 days or morehardly permanent housing. The gulf between a 14-day stay and
a 30-day stay is not so enormous or self-evident as the analysis suggests.
An ordinary person cannot reserve a room at this group home. Instead, the home is heavily
regulated by the Oregon Health Authority, and the residency of the group home will be determined
by the clinical decision-making. Residents will not be engaged in tourism, but using the home as a
residence. Perhaps most importantly, the home is being used for a specific statewide benefit, to
ensure that people with disabilities can live in a home-like environment, be stabilized and find
respite before moving on to their next home. The state legislature required the creation of those
home-like environments, particularly requiring one in Southern Oregon.
The city council adopted a Homeless Services Masterplan in 2024 that included in its proposal that
the city could establish medical respite beds (step down housing after
hospitalization/treatment), explore the need for more transitional housing, make zoning
changes to facilitate innovation around service provision, establish a housing-focused
transitional shelter, or a short-term shelter, typically 1-4 weeks, with case management. The
4
proposed respite group home would benefit all of Ashland and all of Southern Oregon. If the city
abuses the law to pass on this opportunity, it would prove Ashlandlike so many other
communitieswants services and supports to happen someday, somewhere else, in someone
elses town, in someone elses backyard. Throughout Oregon, we hear the constant demand for
someone else to do the work we dont want to do, that someone elses community should support
the work we know we need. These refrains make it sure that we never get what we need. Someday
is now. Somewhere is here.
Sincerely,
________/s/_________
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