Zoning related to adult foster care (AFC) homes.
The Michigan Zoning Enabling Act gives direction on how to treat state licensed residential facilities. As Michigan plans for an aging population, has your community considered various facilities and how they're classified in the Zoning Ordinance?
Michigan’s population is aging. Many master plans in Michigan indicate a need to offer a variety of housing types which might include affordable housing, “the missing middle” (i.e. townhouses, duplexes, and more). This is the first in a series of articles will focus on ordinance language considerations for communities updating zoning to include housing options for seniors and others needing long term care. This first article will focus on adult foster care (AFC) homes.
The Michigan Zoning Enabling Act requires that AFC homes (a state licensed residential facility) be treated as a residential use of property for the purposes of zoning and a permitted use in all residential zones. Most AFC homes with six or fewer residents have no discernible characteristics setting it apart from other homes in the area. Still, a new AFC home down the street or next door may be concerning to nearby residents followed with questions as to how this could have been allowed with no public input.
An application for an AFC family home or small group home is often times handled administratively, with procedures no different than a single-family dwelling. The law is clear that this type of use cannot be subject to a different permit or procedure than what is required for a dwelling of similar density.
The Michigan Zoning Enabling Act (Act 110 of 2006) MCL 125.3206 says: “except as otherwise provided in subsection (2), a state licensed residential facility shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones and is not subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.”
There are three licensing levels for adult foster care under the Michigan Department of Licensing and Regulatory Affairs (LARA). Note that AFC homes cannot have more than 20 people.
- Adult foster care family home: a private residence with the approved capacity to receive six or fewer adults to be provided with foster care for 5 or more days a week and for two or more consecutive weeks. The adult foster care family home licensee shall be a member of the household, and an occupant of the residence.
- Adult foster care large group home: an adult foster care facility with the approved capacity to receive at least 13 but not more than 20 adults to be provided with foster care.
- Adult foster care small group home: an adult foster care facility with the approved capacity to receive 12 or fewer adults to be provided with foster care.
Prior to starting a zoning amendment, review the ordinance language about AFC homes of all sizes and consider these questions:
- Are the definitions in the Adult Foster Care Licensing Act consistent with local ordinance definitions? For example, does the ordinance define the number of residents in a small care group home to a maximum of six or is it 12? Many ordinances have a limit of six residents or less to be treated as a permitted use. This may cause confusion because the state licensure for a small care group home provides for 12 or fewer adults.
- A large group home containing at least 13 but not more than 20 adults may be treated as a special land use in some residential districts or perhaps commercial districts; note that the law allows for communities to consider a permitting process for housing types of similar density.
- Does the ordinance have separate definitions for small, family, and large group homes or is there just one blanket definition for adult foster care? A definition should be included for each use if they are regulated separately in the ordinance. The difference between a 6-person group home and a 20-person group home in a primarily residential zone could be substantial and likely deserves a unique classification in the ordinance.
- Are adult family care homes or small group homes uses treated as a special land use? If so, is an equivalent “residential use” such as a single family home treated as a permitted use in the same district? If there is inconsistency here, consider consulting an experienced municipal attorney to review the language.
- If an ordinance has spacing requirements as part of a special land use for an AFC (such as a required 1,000-foot setback to another AFC home) consider consulting an experienced municipal attorney as these kinds of standards could be subject to legal challenge.
There are many issues to consider when classifying AFC homes and other state licensed residential facilities in a zoning ordinance. If the zoning ordinance does not define or regulate various types of AFC homes, the application must be treated as a residential use of property and not subject to a procedure different from those required for other dwellings of similar density in the same zone.
Those in Michigan State University Extension that focus on land use provide various training programs on planning and zoning, which are available to be presented in your county. Contact your local land use educator for more information.