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Temporary Family HealthCare Dwellings "•-••• June 27, 2016 Page 2 • Although not necessarily a legal issue for the city, it seems worth mentioning that the permit process does not have the individual with the physical or mental impairment or that individual's power of attorney sign the permit application or a consent to release his or her data. • The application's data requirements may result in the city possessing and maintaining nonpublic data governed by the Minnesota Government Data Practices Act. • The new law sets forth a permitting system for both cities and counties3. Cities should consider whether there is an interplay between these two statutes. Do cities need to do anything to have the new law apply in their city? No, the law goes into effect Sept. 1, 2016 and automatically applies to all cities that do not opt out or don't already allow temporary family health care dwellings as a permitted use under their local ordinances. Do cities lose the option to opt out after the Sept. 1, 2016 effective date? No, the law does not set a deadline for opting out, so cities can opt out after Sept. 1, 2016. However, if the city has not opted out by Sept. 1, 2016, then the city must not only have determined a permit fee amount4 before that date (if the city wants to have an amount different than the law's default amount), but also must be ready on that date to accept applications and process the permits in accordance with the short timeline required by the law. Cities should consult their city attorney to analyze how to handle applications submitted after Sept. 1, 2016, but still pending at the time of a later opt out. What if a city already allows a temporary family health care dwelling as a permitted use? If the city already has designated temporary family health care dwellings as a permitted use, then the law does not apply and the city follows its own ordinance. The city should consult its city attorney for any uncertainty about whether structures currently permitted under existing ordinances qualify as temporary family health care dwellings. What process should the city follow if it chooses to opt out of this statute? Cities that wish to opt out of this law must pass an ordinance to do so. The statute does not provide clear guidance on how to treat this opt -out ordinance. However, since the new law adds section 462.3593 to the land use planning act (Minn. Stat. ch. 462), arguably, it may represent the adoption or an amendment of a zoning ordinance, triggering the requirements of Minn. Stat. § 462.357, subd. 2-4. including a public hearing with 10 -day published notice. Therefore, cities may want to err on the side of caution and treat the opt -out ordinance as a zoning provision.5 3 See Minn. Stat. §394.307 4 Cities do have flexibility as to amounts of the permit fee. The law sets, as a default, a fee of $100 for the initial permit with a $50 renewal fee, but authorizes a city to provide otherwise by ordinance. 5 For smaller communities without zoning at all, those cities still need to adopt an opt -out ordinance. In those instances, it seems less likely that the opt -out ordinance would equate to zoning. Because of the ambiguity of the