PLAN COMMISSION

January 26, 2009

                                                                                                           

Members present:  Knudson, Olson, Selissen and Casanova

 

Others present:  Mary Hendricks, Greg Hendricks, Tammy and Todd Erskine, Pat Fallon, Dave Holt, Jim and Constance Houston, Gary Borgland, Steve Lipps, Randy Morrissette, Scot O’Malley, Lori Bernard, Denny Darnold and others

 

The meeting was called to order by Chairman Knudson at 7:05 p.m.

 

Knudson requested that Dennis Darnold Community Development Director to review the definitions and terms that may be used that evening.  Darnold reviewed a presentation that included the Wisconsin statute definition of an Adult Family Home (AFH) and what is not an AFH, licensing requirements, the Fair Housing Act (FHAA) definition of handicap, and meaning of reasonable accommodation and discrimination relative to the American with Disabilities Act (ADA).  A copy of the slide presentation is attached.

 

Knudson commented that the Wisconsin Statutes require that AFHs be allowed in one- and two-family residential zoning districts, except for the location of an AFH within 2,500 feet of another AFH or a community based residential facility (CBRF).  Knudson added that the 7th District Circuit Court has ruled that the 2,500 foot spacing requirement is preempted by the Fair Housing Act and Americans with Disabilities Act if the residence is for persons with disabilities.  The plan commission must review the request for an exception to the 2,500 foot spacing requirement based on the impact that the proposed facility will have on the neighborhood.  The city should, Knudson noted, make a reasonable accommodation to allow a proposed AFH if the residents will be people with disabilities.  A municipality may deny the reasonable accommodation if it may be determined that impact creates a financial difficulty or burdensome on city services.  Knudson noted that the courts have held that that it is presumed that an AFH will be safe.

 

Knudson stated that the city of Hudson zoning code allows up to five unrelated persons to occupy a residence and is considered a one-family household.  There is no maximum for the number of persons in a household if they are related by blood.  Knudson commented that the plan commission should review the level of care that will be proposed to determine if the persons proposed to live in the AFH are persons with disabilities.

 

Knudson discussed recent efforts by the city of Marshfield in review of AFHs and the 2,500 foot separation issue.

 

 

 

 

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Todd Erskine commented that it is being portrayed that the city will grant the exception and that the residents of the neighborhood will not be given an opportunity to express their views.  Knudson responded that the residents were invited to this meeting and will be given an opportunity to speak.

 

Knudson suggested that the applicant be allowed to present and then residents or other interested parties be allowed to speak also.

 

Mary Hendricks, President of Hometown Senior Living noted that she is the owner of the residential care provider and that she requests that the city of Hudson consider granting an exception to the 2,500 foot spacing requirement for AFHs.  She commented that she has been in the health care industry for 15 years.  Hendricks noted this is a new company and the AFH at 1015 Crest View Drive is the first residence proposed by Hometown Senior Living.  This home will be strictly senior residents, age 60 and over, which are classified as ‘advanced age’.  The residents are dependent on care being provided to them as they will have some form of a disability.

 

Olson asked to confirm the ages of the residents and if the residents may have some degree of dementia.  Hendricks noted the residents will be age 60 and over and this AFH will not have persons that have dementia beyond early stages.  Olson asked about the two existing residents.  Hendricks commented that of the two residents, one is dependent upon use of a wheelchair.

 

Knudson commented that if licensed the facility may be able to increase the number of residents from two to a maximum of four.  Will all four residents have disabilities, Knudson asked.  Hendricks noted that at the age of 60 and over residents or families will need some level of care and that they seek this level of assistance until they may need to move to another facility that provides a greater level of assistance.

 

Olson inquired if Hendricks has any other AFHs that are licensed.  Hendricks responded, no, but that it is their intent to have other homes.  Knudson asked if the residents will need assistance with major life activities.  Hendricks stated yes, that the residents will have, in some form, the inability to take care of themselves.  Hendricks added that the disabilities will be a physical disability and that the proposed AFH will not be a memory care facility.  Knudson asked if the residents that now reside at 1015 Crest View Drive will be able to exit in case of an emergency by themselves.  Hendricks noted that one of the residents would need some direction and the other would need physical assistance.

 

Casanova asked how long a resident may live in an AFH.  Hendricks noted generally two to three years.  Casanova inquired about nursing care.  Hendricks stated that a LPN would provide the needed nursing care to the residents, but that the residents would be

 

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taken to a physician as needed or that in-home therapy may occur if ordered by the physician.

 

What about subsequent care, Olson inquired?  Hendricks commented that will become part of the residency plan that is required for state licensing.

 

Knudson asked if Hendricks had held an AFH license in the past.  Hendricks answered no, but that she has worked in a licensed facility previously.

 

Selissen commented that it is his understanding that an AFH must be licensed and asked the maximum number of residents that an AFH may allow.  Hendricks noted four.

 

Knudson suggested that the plan commission review the issue of traffic and parking.  Knudson asked how many cars may be at the home at one time.  Hendricks noted the home manager would have a car that will be parked within the garage and that in some situations there will be two other staff which will park at the northeasterly edge of the garage.  Knudson asked if the residents will have cars.  Hendricks responded no, but that on occasion there will be visitors.  Hendricks also noted that there will be no business office at the home.  Cars to be parked on the street, Knudson asked?  Hendricks responded that should not occur.  She further noted that staff meetings will be held off-site as that type of activity would infringe on the residential atmosphere of the home.

 

Casanova noted that her letter indicated there will be no signage.  No signage is proposed, Hendricks answered.

 

Knudson noted that if congestion happens it will only be if a number of family visitors are present.  Erskine questioned Knudson's comment in that there has been no decision on this issue.  Knudson acknowledged Erskine’s concern.  Knudson asked about the safety of the residents due to the proximity of the house to the bluff.  Hendricks reiterated that the proposed AFH will not be a memory care facility which would likely require a fence to be installed to protect a resident with Alzheimer’s disease.  Hendricks noted that the house will be maintained as it is now except for minor improvements such as painting or a new roof.

 

Knudson asked if there would be a concern on her part to limit the classification / type of resident to that indicated in her application, age 60 and over.  Hendricks noted no. 

 

Knudson inquired about deliveries, such as groceries or medical goods.  Hendricks expressed that she foresees there to be no need for delivery of products and that grocery shopping will be done by the staff.  It was asked if the delivery of oxygen may occasionally occur.  Hendricks responded yes, if needed.

 

 

 

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Hendricks commented that it is not their intention to develop a community based residential facility (CBRF) which has 5 or more residents.  Knudson asked if Hendricks was willing to go on the record with that intention.  Hendricks answered yes.

 

Knudson reviewed the recommendation of the community development director.  One item of consideration is if the 2,500 foot separation exception is granted that AFH spacing exception must be re-reviewed if the license is amended.  Hendricks commented that was acceptable to her.

 

Greg Hendricks reviewed a letter to the plan commission and Common Council highlighting the issues from the perspective of Hometown Senior Living including that it is their intention not to add to the structure or change the architectural appearance of the residence; that it is their intention to maintain a quiet residential neighborhood; and that they believe that there are no issues that will become problems for the neighborhood such as off-street parking or traffic.  A copy of the letter is attached for reference.  Hendricks noted that it is the intent of Hometown Senior Living to provide an alternative residential opportunity for elderly residents that need assistance.  Hendricks noted that in the court case commonly referred to K Care the courts held that the separation issue was created to protect or benefit the interest of the residents.

 

Knudson suggested giving each person three minutes to speak to the issues.  Pat Fallon expressed that was not a sufficient amount of time.  Knudson noted that he is inviting comment and that is the decision by the Chairman.  Olson asked that the people in attendance speak to the request of the 2,500 foot spacing exception.  Knudson added that issues expressed need to be factual and must address issues such as public safety, health and welfare.

 

Tammy Erskine, 1119 Crest View Drive asked about how the provider may determine when a resident may need to change location due to a worsening condition of dementia.

Hendricks noted that would depend on the conditions that would be displayed by that resident.  Erskine commented that one of the existing residents has a high degree of dementia, yet is living in the existing residence.  Hendricks questioned that comment and stated that the dementia shown was a mild state.  Erskine expressed concern about the amount of traffic with three care providers are at the home at one time.  Erskine commented that there were six (6) vehicles at the home last Saturday.  Other issues mentioned by Erskine included on-site meetings, commercial delivery traffic, and tours of prospective residents / families.  Erskine commented that there is an article in a real estate journal that opines that elderly housing of this type is transitional and may have a negative effect on property values.  Knudson asked for a copy of the article.

 

 

 

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Knudson noted that in the submitted application for license to the state of Wisconsin that there was only one box checked for the advanced age (age 60 and over) for the type of residents that will be occupying the home and that there is a box that indicates persons with physical disabilities.  Mary Hendricks stated that there may be persons under the age of 60 that have physical disabilities.  Knudson asked about a person of age 60 and over that has an emotional disability.  Hendricks responded that person would not fit into the assessment process to live at their proposed AFH and that there would be another residential care facility that is more appropriate.

 

It was asked if the home will be a private pay facility.  Hendricks answered yes.  Knudson noted that it is indicated that there is a range for projected cost for services.  Hendricks stated that due to the level of care that may be offered.

 

Gary Borgland, Mont Croix Drive expressed concern about the possible impact on the property values of residences in the neighborhood. He noted that the proposed AFH may have a negative impact on property values and further noted that if a home is for sale that the owner must disclose that an ADF is located next door.  He asked that the city not ignore this issue of the potential impact on property values.  Borgland also noted that Hendricks may have misrepresented herself when she stated initially that she represented Afton Care, the care provider that she previously worked for.

 

Todd Erskine provided a letter from Vickie Drigans, Afton Care house manager.  A copy of the letter is attached for reference.  Erskine noted that the two residents now residing at 1015 Crest View Drive were previously residents of Afton Care.  The letter addressed the issue of potential traffic and accessibility of emergency vehicles.  The letter contained information in regard to potential traffic such as staff, guests, delivery, hospice care, church visits, cleaning services, etc.  Erskine noted that the section of Crest View Drive terminates in a cul-de-sac and that school buses do not turn around at the cul-de-sac due to the radius.  Erskine noted that with the increase in traffic it will be more difficult for emergency vehicles to access the neighborhood.  He opined that if the AFH moves ahead that it would be a radical change in the neighborhood.

 

Knudson noted that an adult family home may provide up to seven (7) hours per week of nursing care per resident.  Knudson commented that nursing care does not include personal care such as bathing, food preparation, etc. even if provided by a nurse.  Hendricks noted that one LPN will be on staff to provide wound treatment or injections.  It was asked if dispensing medication was required by a LPN or RN.  Hendricks stated no, that medication could be dispensed by the resident assistant.

 

 

 

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Hendricks asked to respond to statements made about her and stated that she did not represent herself as an employee of Afton Care when discussing the issues previously with the neighborhood and chose to leave Afton Care on her own accord.

 

Jim Houston, 1118 Crest View Drive expressed concern that the city take the necessary time to review the issues in regard to this proposed AFH such as property values, emergency access, personal liability and the level of care to be provided.  What about Comforts of Home, what impact may this AFH have on that facility?  He felt there were several unanswered questions and asked that the city take its time in considering this issue.

 

Pat Fallon 2216 Foxglove Way noted that the issue of safety must be considered and he noted that the court decisions are not law, but interpretations of law.

 

Steve Lipps asked if the existing residents are able to exit without assistance.  Hendricks noted that one of the current residents would need assistance to exit in case of an emergency.

 

Olson asked that Darnold review his recommendation.  Darnold commented that he and the city attorney have reviewed this issue and that his recommendation is to approve the request for exception with the following conditions:

-         that the operator shall maintain a state approved license for an Adult Family Home per Wisconsin Statute, s. 50.033,

-         that the facility is occupied only by residents age 60 and over or has a disability per the definition of the Americans with Disability Act or the Fair Housing Amendment Act (FHAA),

-         a change in license will automatically require the exception to be reconsidered for approval by the city of Hudson,

-         per Wisconsin Statute, s. 62.23(i)9, the city may make a review and make a determination as to the effect of the adult family home on the health, safety  or welfare of the residents of the City of Hudson.

Darnold commented that some of the content of his recommendation may appear redundant of the state statutes, but that it provides some clarity to the neighborhood residents that the license cannot be modified to allow other classes of residents without city review and that there exists an opportunity to review if the AFH appears to be a concern from a public health, safety or welfare perspective. 

 

Darnold commented it is the opinion of the city attorney that the Hendricks Group’s proposed facility serves disabled individuals, the city cannot deny an exception to the 2,500 feet distance limitation.  Darnold noted the city attorney’s comments further reviewed the issue of disabilities.

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Todd Erskine asked why the state licensing agency has not acted on this issue.  Knudson explained they are waiting on the city to act on the issue of the exception.

 

Knudson stated that there exists two AFHs in the city of Hudson, one located on Wheat Grass and one on Namekagon Loop.  The existing CBRF / Comforts of Home and the existing AFHs are all located at least 2,500 feet from each other.  Knudson noted that to his knowledge the city has not received any complaints regarding the two existing AFHs.  Knudson presented a map of the locations of the two existing AFHs, the CBRF and the proposed AFH on Crest View Drive.

 

Randy Morrissette asked that the plan commission take to heart what the residents are saying and he urged the plan commission to recommend denial of the exception that the proposed AFH does not fit into the neighborhood.

 

Casanova noted that the rights of the residents may be usurped by the state and federal laws and he recognizes that this is an emotional issue because of the investment the residents have made in their homes.

 

Todd Erskine asked that the city allow a judge / courts to decide the issue.  He asked that the city delay consideration to allow more time to review the issues.

 

Scot O’Malley suggested the plan commission postpone the decision or forward the issue on to the Common Council without a recommendation.  O’Malley commented that the city has an ordinance that may address this issue, Chapter 175 – Public Nuisances, noting the ordinance states that no person may cause any public nuisance that will substantially depreciate the value of adjoining or neighboring properties.

 

Borgland expressed concern on property values and that the values may drop to levels that existed in 2000. 

 

Knudson noted that information in regard to property values needs to be factual and not speculative.  Knudson noted that it is necessary to provide a reasonable accommodation for persons with disabilities; one form is the accommodation of accessibility and modifications to a structure and the other is policies that allow residence to persons with disabilities without discrimination.

 

Todd Erskine noted that the neighborhood in its entirety is opposed to this proposal.

 

Motion by Selissen to approve the exception to allow the adult family home as proposed by Hometown Senior Living at 1015 Crest View Drive to be within 2,500 feet of an existing community based residential facility.  Motion died due to a lack of a second. 

 

 

 

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Selissen explained that he made the motion based on the fact that the state issues the license and that the licensing agency must address many of the safety issues; that it is unknown what the impact will be on the property values; and that there will be more demand in the future for this type of alternative housing for the elderly.

 

Olson noted that this is an emotional issue and that the plan commission must sort through the emotions and get to the facts.  Olson stated this type of housing is needed and will continue to be demanded as a greater percentage of the population becomes elderly. She added that cars and traffic is an issue, but in some instances the concerns expressed by the neighborhood are similar to the traffic in the traditional single-family neighborhood, such as parking on the street or the number of cars at a residence due to a family event when guests are present.

 

What additional information does the plan commission need to be able to further consider the issue, asked Knudson.

 

Selissen noted that people park their vehicles on the street in his neighborhood, what is different?

 

Knudson noted that it is the responsibility of the plan commission to make a recommendation and to advise the Common Council on issues that come before the plan commission.

 

Casanova asked if there may be additional review on the adequacy of parking including the daily demand of staff, delivery or emergency traffic and if the parking lot and driveway areas are adequate in regard to the safety issues.

 

It was asked if the police or fire departments had commented on the access issue.  Darnold stated no.

 

It was asked how much of a lot may be paved.  Darnold responded up to 50% of a lot may be covered with impervious surfaces including the house, patios, sidewalks and driveways.

 

Darnold commented that the state licensing agency must inspect the residence before an AFH license is granted to determine if the residence may address the accessibility / safety issues.

 

 

 

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It was suggested by Knudson that if the plan commission may consider whether to postpone action on this issue that the commission develop facts to support a position, such as was completed by the city of Marshfield.  Knudson referred to a memo of the city of Marshfield and noted in that community’s review of AFH issues that the memo addressed what may be the issues and concerns of the community.  Findings were made that there is no definitive proof that an AFH has a negative impact on property values or that safety is impaired and that traffic and noise may be legitimate issues.

 

Jim Houston noted that there is generally one access point to Crest View Drive west of Heggen Street and there exists the possibility that the access may become blocked.

 

Knudson noted that the city attorney’s review is consistent with that of the city of Marshfield and that her expressed opinion was also based on review of case law and conferring with the League of Municipalities’ legal counsel.  Knudson noted that Darnold has provided a recommendation to the plan commission.

 

Olson asked if the plan commission is approving the exception or if it is a recommendation to the Council.  Darnold noted this is a recommendation only and that the Common Council makes the final decision.

 

Motion by Casanova to forward this issue without recommendation to the Common Council.  Motion withdrawn.

 

Selissen commented that the plan commission is in a box in that the federal courts have directed policies for municipalities in regard to the provision of housing for persons with disabilities; that he believes property values will become a non-issue as more of these facilities are located within communities; and that the city should support the provision that elderly and persons with disabilities can reside in any residential neighborhood without fear of discrimination.

 

Lori Bernard noted that there is no guarantee that the state licensing agency is going to approve the AFH license and that they will review the safety issues.

 

Knudson commented that traffic and parking are legitimate concerns and need to be reviewed and that it would appear that on-street parking restrictions may be a reasonable accommodation.

 

Borgland noted that the street ends in a cul-de-sac that school buses cannot turn around at the end of the street.  He further noted that there is a connection between Crest View Drive and Croix Crest Drive, but that access is gated and locked to prevent through traffic.  Casanova suggested that arrangement was requested by the development and perhaps it is now time to connect the two streets.

 

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Greg Hendricks noted that it is not anticipated that vehicles will need to be parked on the street.  There is a two car garage and space to park at least two vehicles in front of the garage and that additional parking, as needed, will not flow onto the street.  He commented that they have the same concerns as any other resident on that street has in regard to emergency vehicles having access to the neighborhood.

 

Knudson asked Hendricks if it would be acceptable that it be a condition that the AFH would not have on-street parking. Greg Hendricks stated yes, but that perhaps the city should review how that may apply to all residences on Crest View Drive.

 

Jim Houston commented that with four elderly persons residing in the home that there will be more emergency calls to the neighborhood.

 

Selissen commented that the licensing agency must address many of the safety issues, mentioned this evening, before approving the license.

 

O’Malley commented that there are many issues that remain unanswered and it does not appear that the plan commission has at this time the conviction to make a recommendation and should postpone consideration and spend more time on the review or that they send it on to the Common Council without recommendation.

 

Selissen commented that some of the issues are purely speculative and that there may not be any clear cut answers to some of the questions.  He noted that it is reasonable that the city requires that the employees must use off-street parking.

 

Greg Hendricks acknowledged that this is an emotional issue, but that the issue for consideration is whether the exception should or should not be approved.  The licensing agency will review the safety issues, Hendricks noted.

 

Tammy Erskine expressed that the city must address the public health and safety issues and not to rely on the state to do that.

 

Motion by Selissen, seconded by Olson to recommend approval of the request by Hometown Senior Living for an exception to the 2,500 foot spacing requirement from a community based residential facility with the following conditions:

-         That the operator shall maintain a state approved license for an Adult Family Home per Wisconsin Statutes, s 50.033.

-         That the facility is occupied only by residents age 60 and over or has a disability per the definition of the Americans with Disabilities Act (ADA) or the Fair Housing Amendment Act (FHAA).

 

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-         A change in the license will automatically require the exception to be reconsidered for approval by the city of Hudson

-         Per Wisconsin Statute, s 62.23(i)9, the city may make a review and make a determination as to the effect of the adult family home on the health, safety or welfare of the residents of the city of Hudson.

-         That no on-street parking be allowed on Crest View Drive for the use of the property as an adult family home.

Motion carried.

 

Olson requested of those in the audience that if the adult family home is located at 1015 Crest View Drive that the operators work together with the neighborhood residents to address their concerns.

 

Matters for discussion only or placement on future agendas.  No other matters for placement on future agendas were requested by the plan commission members.

 

Motion by Olson, seconded by Casanova to adjourn.  Motion carried.  9:40 p.m.

 

Respectfully submitted,

Dennis Darnold, Secretary