2007 Minnesota Statutes

245A.11 SPECIAL CONDITIONS FOR RESIDENTIAL PROGRAMS.
    Subdivision 1. Policy statement. It is the policy of the state that persons shall not be
excluded by municipal zoning ordinances or other land use regulations from the benefits of
normal residential surroundings.
    Subd. 2. Permitted single-family residential use. Residential programs with a licensed
capacity of six or fewer persons shall be considered a permitted single-family residential use of
property for the purposes of zoning and other land use regulations, except that a residential
program whose primary purpose is to treat juveniles who have violated criminal statutes relating
to sex offenses or have been adjudicated delinquent on the basis of conduct in violation of
criminal statutes relating to sex offenses shall not be considered a permitted use. This exception
shall not apply to residential programs licensed before July 1, 1995. Programs otherwise allowed
under this subdivision shall not be prohibited by operation of restrictive covenants or similar
restrictions, regardless of when entered into, which cannot be met because of the nature of the
licensed program, including provisions which require the home's occupants be related, and that
the home must be occupied by the owner, or similar provisions.
    Subd. 2a. Adult foster care license capacity. (a) An adult foster care license holder may
have a maximum license capacity of five if all persons in care are age 55 or over and do not have
a serious and persistent mental illness or a developmental disability.
(b) The commissioner may grant variances to paragraph (a) to allow a foster care provider
with a licensed capacity of five persons to admit an individual under the age of 55 if the variance
complies with section 245A.04, subdivision 9, and approval of the variance is recommended by
the county in which the licensed foster care provider is located.
(c) The commissioner may grant variances to paragraph (a) to allow the use of a fifth
bed for emergency crisis services for a person with serious and persistent mental illness or a
developmental disability, regardless of age, if the variance complies with section 245A.04,
subdivision 9 , and approval of the variance is recommended by the county in which the licensed
foster care provider is located.
(d) Notwithstanding paragraph (a), the commissioner may issue an adult foster care license
with a capacity of five adults when the capacity is recommended by the county licensing agency
of the county in which the facility is located and if the recommendation verifies that:
(1) the facility meets the physical environment requirements in the adult foster care licensing
rule;
(2) the five-bed living arrangement is specified for each resident in the resident's:
(i) individualized plan of care;
(ii) individual service plan under section 256B.092, subdivision 1b, if required; or
(iii) individual resident placement agreement under Minnesota Rules, part 9555.5105,
subpart 19, if required;
(3) the license holder obtains written and signed informed consent from each resident or
resident's legal representative documenting the resident's informed choice to living in the home
and that the resident's refusal to consent would not have resulted in service termination; and
(4) the facility was licensed for adult foster care before March 1, 2003.
(e) The commissioner shall not issue a new adult foster care license under paragraph (d) after
June 30, 2005. The commissioner shall allow a facility with an adult foster care license issued
under paragraph (d) before June 30, 2005, to continue with a capacity of five adults if the license
holder continues to comply with the requirements in paragraph (d).
    Subd. 2b. Adult foster care; family adult day services. An adult foster care license holder
licensed under the conditions in subdivision 2a may also provide family adult day care for adults
age 55 or over if no persons in the adult foster or family adult day services program have a serious
and persistent mental illness or a developmental disability. Family adult day services provided
in a licensed adult foster care setting must be provided as specified under section 245A.143.
Authorization to provide family adult day services in the adult foster care setting shall be printed
on the license certificate by the commissioner. Adult foster care homes licensed under this section
and family adult day services licensed under section 245A.143 shall not be subject to licensure
by the commissioner of health under the provisions of chapter 144, 144A, 157, or any other law
requiring facility licensure by the commissioner of health.
    Subd. 3. Permitted multifamily residential use. Unless otherwise provided in any town,
municipal, or county zoning regulation, a licensed residential program with a licensed capacity of
seven to 16 persons shall be considered a permitted multifamily residential use of property for the
purposes of zoning and other land use regulations. 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. Nothing in this chapter shall be construed to exclude or prohibit
residential programs from single-family zones if otherwise permitted by local zoning regulations.
    Subd. 4. Location of residential programs. In determining whether to grant a license,
the commissioner shall specifically consider the population, size, land use plan, availability of
community services, and the number and size of existing licensed residential programs in the
town, municipality, or county in which the applicant seeks to operate a residential program. The
commissioner shall not grant an initial license to any residential program if the residential program
will be within 1,320 feet of an existing residential program unless one of the following conditions
apply: (1) the existing residential program is located in a hospital licensed by the commissioner
of health; (2) the town, municipality, or county zoning authority grants the residential program
a conditional use or special use permit; (3) the program serves six or fewer persons and is not
located in a city of the first class; or (4) the program is foster care.
    Subd. 5. Overconcentration and dispersal. (a) Before January 1, 1985, each county
having two or more group residential programs within 1,320 feet of each other shall submit to
the Department of Human Services a plan to promote dispersal of group residential programs.
In formulating its plan, the county shall solicit the participation of affected persons, programs,
municipalities having highly concentrated residential program populations, and advocacy groups.
For the purposes of this subdivision, "highly concentrated" means having a population in
residential programs serving seven or more persons that exceeds one-half of one percent of the
population of a recognized planning district or other administrative subdivision.
(b) Within 45 days after the county submits the plan, the commissioner shall certify whether
the plan fulfills the purposes and requirements of this subdivision including the following
requirements:
(1) a new program serving seven or more persons must not be located in any recognized
planning district or other administrative subdivision where the population in residential programs
is highly concentrated;
(2) the county plan must promote dispersal of highly concentrated residential program
populations;
(3) the county plan shall promote the development of residential programs in areas that
are not highly concentrated;
(4) no person in a residential program shall be displaced as a result of this section until a
relocation plan has been implemented that provides for an acceptable alternative placement;
(5) if the plan provides for the relocation of residential programs, the relocation must be
completed by January 1, 1990. If the commissioner certifies that the plan does not do so, the
commissioner shall state the reasons, and the county has 30 days to submit a plan amended to
comply with the requirements of the commissioner.
(c) After July 1, 1985, the commissioner may reduce grants under section 245.73 to a county
required to have an approved plan under paragraph (a) if the county does not have a plan approved
by the commissioner or if the county acts in disregard of its approved plan. The county board
has the right to be provided with advance notice and to appeal the commissioner's decision. If
the county requests a hearing within 30 days of the notification of intent to reduce grants, the
commissioner shall not certify any reduction in grants until a hearing is conducted and a decision
made in accordance with the contested case provisions of chapter 14.
    Subd. 5a. Integration of residential programs. The commissioner of human services shall
seek input from counties and municipalities on methods for integrating all residential programs
into the community.
    Subd. 6. Hospitals; exemption. Residential programs located in hospitals shall be exempt
from the provisions of this section.
    Subd. 7. Adult foster care; variance for alternate overnight supervision. (a) The
commissioner may grant a variance under section 245A.04, subdivision 9, to rule parts requiring a
caregiver to be present in an adult foster care home during normal sleeping hours to allow for
alternative methods of overnight supervision. The commissioner may grant the variance if the
local county licensing agency recommends the variance and the county recommendation includes
documentation verifying that:
    (1) the county has approved the license holder's plan for alternative methods of providing
overnight supervision and determined the plan protects the residents' health, safety, and rights;
    (2) the license holder has obtained written and signed informed consent from each resident or
each resident's legal representative documenting the resident's or legal representative's agreement
with the alternative method of overnight supervision; and
    (3) the alternative method of providing overnight supervision, which may include the use
of technology, is specified for each resident in the resident's: (i) individualized plan of care; (ii)
individual service plan under section 256B.092, subdivision 1b, if required; or (iii) individual
resident placement agreement under Minnesota Rules, part 9555.5105, subpart 19, if required.
    (b) To be eligible for a variance under paragraph (a), the adult foster care license holder must
not have had a licensing action under section 245A.06 or 245A.07 during the prior 24 months
based on failure to provide adequate supervision, health care services, or resident safety in the
adult foster care home.
    (c) A license holder requesting a variance under this subdivision to utilize technology as a
component of a plan for alternative overnight supervision may request the commissioner's review
in the absence of a county recommendation. Upon receipt of such a request from a license holder,
the commissioner shall review the variance request with the county.
History: 1987 c 333 s 12; 1988 c 411 s 6; 1990 c 568 art 2 s 47; 1992 c 513 art 9 s 14; 1993
c 10 s 1; 1995 c 224 s 79; 1997 c 203 art 7 s 4; 1997 c 248 s 31; 2000 c 327 s 6; 2001 c 4 s 1,2;
1Sp2003 c 14 art 6 s 10-12; 2004 c 288 art 1 s 25; art 5 s 2; 2007 c 112 s 13