residential recovery homes and their local...
TRANSCRIPT
Group Homes – Residential Recovery Facilities Conference March 2, 2007
Residential Recovery Homes and Their Local Impacts
Alene M. Taber, Esq., AICP Michael J. Alti, Esq.
Jackson, DeMarco, Tidus & Peckenpaugh 2030 Main Street, Suite 1200
Irvine, CA 92614 (949) 752-8585
[email protected] www.jdtplaw.com
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Residential Recovery Homes and Their Local Impacts
Prepared by Alene M. Taber, Esq., AICP; and Michael J. Alti, Esq. Jackson, DeMarco, Tidus & Peckenpaugh
1. OVERVIEW OF PRESENTATION
A. Summary.
This presentation:
1. Provides an overview of federal, state, and local laws governing “group homes,” particularly residential recovery homes;
2. Discusses characteristics of residential neighborhoods and the significant impacts on these communities caused by the overconcentration of “group homes”; and
3. Suggests a number of regulatory solutions for cities and counties to consider in addressing these impacts and regulating group homes.
B. Concept of “Group Home”.
1. The definition of “group home” varies widely, depending on the regulations of each local agency. Thus, a city or county may consider the characteristics of its own community in defining “group home.”
2. For example, the City of Dana Point defines “group home” as “any residential care facility for six or fewer persons which is licensed by the State.” (Dana Point Municipal Code, § 9.75.270.)
3. The City of Riverside defines “group housing” as “any living situation … that accommodates more than six unrelated individuals….” (Riverside Municipal Code, § 19.04.162.)
4. For purposes of this presentation, “group home” means any living situation accommodating 3 or more unrelated individuals, including licensed and unlicensed residential care facilities.
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2. REGULATORY SCHEME: FEDERAL, STATE AND LOCAL FRAMEWORK.
A. Federal Law: Non-Discrimination Against People with Disabilities.
1. Fair Housing Amendments Act of 1988.
a. In 1988, Congress passed the Fair Housing Amendment s Act (“FHAA”; 42 USC § 3601 et seq.) to prohibit discrimination against people with disabilities in public and private housing. (42 USC § 3604.)
b. A plaintiff may establish a discrimination claim under the FHAA under a theory of disparate treatment, disparate impact, or a failure to make a reasonable accommodation. (Gamble v. City of Escondido (9th Cir. 1996) 104 F.3d 300, 304-305.)
c. Disparate Treatment. To bring a disparate treatment claim, a plaintiff must first establish a prima facie case showing that: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied for a permit or other approval and was qualified to receive it; (3) the permit was denied despite the plaintiff being qualified; and (4) the defendant approved permits for similarly situated parties during a period relatively near the time the plaintiff’s request was denied. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscrimatory reason for the action. If the defendant satisfies the burden, the plaintiff must prove by a preponderance of the evidence that the defendant’s reason is a mere pretext. Proof of discriminatory motive is crucial to a disparate treatment claim. (Gamble, supra, 104 F.3d at 305.)
d. Disparate Impact. To establish a prima facie disparate impact claim, a plaintiff must establish at least that the defendant’s actions had a discriminatory effect by showing the following: (1) occurrence of certain outwardly neutral practices; and (2) significantly adverse or disproportionate impact on persons of a particular type produced by facially neutral acts or practices. (Gamble, supra, 104 F.3d at 306.)
e. Reasonable Accommodations. A municipality may commit discrimination if it refuses to “make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [the physically disabled] equal opportunity to use and enjoy a dwelling.” (Gamble, supra, 104 F.3d at 307; citing 42 USC 3604(f)(3)(B).)
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B. State Law: Operating License Requirements.
1. Numerous types of “group homes” are required to obtain a license to operate from the applicable state agency. These include:
a. Intermediate Care Facilities for the Developmentally Disabled (Health & Safety Code §§ 1265 et seq.)
b. Community Care Facilities (Health & Safety Code §§ 1500 et seq.)
c. Residential Care Facilities for the Elderly (Health & Safety Code §§ 1569 et seq.)
d. Residential Care Facilities for Persons with Chronic, Life-Threatening Illness (Health & Safety Code §§ 1568.01 et seq.)
e. Pediatric Day Health and Respite Care Facilities (Health & Safety Code §§ 1760 et seq.)
f. Child Day Care Facilities (Health & Safety Code §§ 1596.70 et seq.)
g. Alcoholism or Drug Abuse Recovery or Treatment Facilities1 (Health & Safety Code §§ 11834.01 et seq.)
2. Unlicensed Facilities.
a. Sober Living Homes. These are transitional living arrangements, which do not and can not provide any recovery, treatment or detoxification services to those recovering from alcohol or drug abuse. Sober living homes are not subject to any state licensing regulations and may be regulated by local agencies consistent with the federal Fair Housing laws.
b. Parolee Homes. Parolee homes are not subject to state licensing requirements but are regulated by a number of cities. For example, the City of Fontana defines “parolee home” as “any residential structure or unit … which houses between two to six parolees….” (Fontana Municipal Code, § 30-6.) Parolee homes in Fontana require approval of a conditional use permit and are subject to the City’s location requirements. (Fontana Municipal Code, § 30-155, 30-30-158.)
1 An “alcoholism or drug abuse recovery or treatment facility” is defined as “any premises, place, or building that provides 24-hour residential nonmedical services to adults who are recovering from problems related to alcohol, drug … misuse or abuse, and who need … recovery treatment or detoxification services.” (Health & Safety Code § 11834.02(a)). In contrast, a “sober living facility” does not provide recovery, treatment or detoxification services.
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C. Increase in Number of Drug Treatment Facilities Driven by Proposition 36.
1. California voters passed the Substance Abuse and Crime Prevention Act in 2000 (“Proposition 36”).
2. The purpose of Proposition 36 was to “divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers and parolees charged with simple drug possession or drug use offenses” and “to halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration – and re-incarceration – of non-violent drug users who would be better served by community-based treatment.” (Proposition 36, § 3.)
3. Proposition 36 changed state law to require participation in drug treatment programs instead of incarceration for specified first time and repeat non-violent drug possession offenders. (Penal Code, § 1210.1.)
4. Since Proposition 36 was passed in 2000, California has experienced a larger increase in drug treatment clients than the rest of the country. The number of substance abuse treatment clients in California increased from 104,657 in the year 2000 to 140,401 in 2004 – a 34.1% increase.
5. In 2000, there were 1,061 drug treatment programs in California, including 663 licensed residential facilities and 398 certified outpatient programs. Three years after Proposition 36 was passed, there were 1,766 programs: 842 licensed residential facilities and 924 certified outpatient programs.
6. In three years, the number of treatment sites increased by 66% in three years, and the number of licensed residential facilities rose by 27%. These figures do not take into account unlicensed and uncertified facilities.2
D. Local Land Use and Zoning Regulations Governing Group Homes.
1. Local Requirements. In addition to state licensing requirements, many cities and counties require “group homes” to obtain a local land use permit, depending on the size, type and zoning of the group home.
2. Examples of Local Zoning Requirements.
a. Newport Beach. The City of Newport Beach allows residential care facilities for 6 or fewer persons, including sober living homes, in all residential zones without a use permit. Newport Beach requires a special Federal Exception Permit for residential care facilities of 7 or more persons. (Newport Beach Municipal Code, § 20.91.020.)
2 Ehlers, Scott and Ziedenberg, Jason. Proposition 36: Five Years Later, Justice Policy Institute (April, 2006).
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b. Costa Mesa. The City of Costa Mesa allows residential care facilities of 6 or fewer persons in all residential zones without a use permit, and allows residential care facilities of 7 or more persons in certain residential zones with a conditional use permit. (Costa Mesa Municipal Code, § 13-30.)
c. Dana Point. The City of Dana Point allows all state- licensed group homes for six or fewer persons in all residential zones without a use permit. Certain residential facilities are allowed in residential zones, but only with a conditional use permit. (Dana Point Municipal Code, § 9.09.020.)
d. Riverside . The City of Riverside requires all group housing facilities (7 or more) to obtain a conditional use permit at a public hearing subject to the City’s development standards, including over-concentration restrictions. (Riverside Municipal Code, § 19.64(S).)
3. LOCAL IMPACTS OF GROUP HOMES IN CALIFORNIA CITIES.
A. Residential Neighborhood Characteristics
1. Established residential communities – place where most people spend a significant amount of time, and the base for social and economic interactions.
a. Newport Beach defines a “single housekeeping unit” as “the functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit, under no more than one written or oral rental agreement, including the joint use of common areas and sharing household activities and responsibilities such as meals, chores and expenses.” (NBMC, § 20.03.030.) The City does not classify residential care facilities for 7 or more persons as single housekeeping units, but does consider residential care facilities for 6 or fewer persons to be a single housekeeping unit.
2. Residential Diversity. Diversity in type of residences (single family home, multi- family, senior housing, etc…).
3. Community Linkages. Linkages to the community, including work, school, and places of worship.
4. Stability. Expectations of permanence and stability.
5. Homeownership. Frequently, the home is the family’s most significant economic asset and a significant consumer of discretionary income. Home marketability and values can depend in part on the condition of the housing stock, land uses on adjacent property, and proximity to other desirable land uses (e.g., schools, shopping, etc….).
6. California Supreme Court Statement on Residential Characteristics. The California Supreme Court has stated, “[W]e think it may be safely and sensibly said that justification for residential zoning may, in the last
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analysis, be rested upon the protection of the civic and social values of the American home. The establishment of such districts is for the general welfare because it tends to promote and perpetuate the American home….The home and its intrinsic influences are the very foundation of good citizenship, and any factor contributing to the establishment of homes and the fostering of home life doubtless tends to the enhancement not only of community life but of the life of the nation as a whole.” (Miller v. Board of Public Works (1925) 195 Cal. 477, 493; see also Ewing v. City of Carmel-by-the-Sea (1991) 234 Cal.App.3d 1579, 1590.)
7. Policies Favoring Homeownership. With homeownership comes “stability, increased interest in the promotion of … schools and churches, and ‘recognition of the individual's responsibility for his share in the safeguarding of the welfare of the community and increased pride in personal achievement which must come from personal participation in projects looking toward community betterment.’” (Ewing, supra, 234 Cal.App.3d 1579, 1590, citations omitted, emphasis added.)
B. Impacts Adversely Affecting Residential Character of Neighborhoods .
1. Over-concentration. Impacts are primarily caused by the over-concentration of group homes in residential zones to the point that the character of the neighborhood is transformed into a “group home” neighborhood with residents within it.
2. Incompatibility. The over-concentration of group homes in residential zones conflicts with the purpose of traditional, established neighborhoods – permanence, stability, and linkages to the community.
3. Transiency. Group homes, particularly residential care facilities, tend to house occupants that are transient in nature, whereas a family residing in a traditional home may reside there for decades.
4. Linkages to Community. The transient nature of residents of group homes limits their linkages and bonds with the community, thus minimizing the “sense of community” in a particular neighborhood.
5. Type of Housing Does Not Necessarily Accommodate the Use. Group homes promote dormitory style living that is not necessarily accommodated by the design of the existing housing stock.
a. In some cases, 6 occupants of a group home may reside in each unit of a duplex, with the entire duplex consisting of 12 occupants, not including staff.
6. Property Marketability and Values. If the neighborhood is viewed as less desirable for permanent residence because of the over-concentration of group homes, residential property values may decline.
7. Externalities. See next section; examples of adverse impacts of group homes.
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C. Examples of Adverse Impacts and Local Responses.
1. Newport Beach.
a. Initiation of Amendments to Ordinance. The City of Newport Beach has engaged in minimal regulation of group homes for handicapped individuals, finding that its ability to regulate such uses is circumscribed by federal and state laws. In response to the significant over-concentration of group homes in the City, the City Council adopted a resolution on February 13, 2007, initiating amendments to its regulations governing residential care facilities.
b. Over-concentration. The Balboa Peninsula is estimated to contain over 100 residential care facilities, including alcoholism or drug abuse recovery or treatment facilities and sober living facilities. In some parts of the Peninsula, especially between 30th and 45th Streets, the total number of beds in residential care facilities is estimated to exceed 30% of the total population of the area.
c. Established Communities. In Newport Beach, the Balboa Peninsula and Newport Heights are not master planned communities. With less than 3 feet between buildings in some more established residential communities in Newport Beach, increases in density cause a significantly greater impact. Noise, smoke, parking and loitering especially burden these established communities.
d. Increased Density and Over-crowding. While many residential care facilities serve a maximum of six occupants, this figure does not include staff, caretakers, management and other persons residing or working at those facilities. Residential care facilities typically house more persons than a more traditionally occupied residential unit.
e. Increased Traffic. Increased density may result in increased traffic from the higher number of occupants of each facility, the higher demand for services generated by those occupants, and from staff and caretakers.
f. Limited Parking. With increased density and traffic, facilities may strain already limited on-street parking resources in the Balboa Peninsula and other areas. Parking is particularly overburdened with weekend visitors, especially in the older coastal communities, like the Balboa Peninsula. Group homes that have little parking can be changed to other uses and be under-parked.
g. Smoking. Observations of increased smoking in residential areas; effects of second hand smoke; litter caused by ash and cigarette butts.
h. Loitering. Increase in amount of noise, loitering, and littering outside residential homes. Activities may be moved outdoors because traditional residential units are not designed for dormitory
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style living.
i. Safety. Increased risk of crime in residential areas is a concern when parolees are residing in sober living homes, as well as because of the proximity of these homes to schools and child care facilities.
j. Deliveries. Increase in number of commercial or other types of delivery trucks and vehicles, and increase in number of trucks and vans transporting occupants of residential care facilities to other facilities.
2. West Covina.
a. The City of West Covina adopted an ordinance in November 2006 affecting group houses in response to resident concerns over a group home in the Loma Vista neighborhood.
b. According to a report filed by the Chief of Police, a group home serving troubled adolescents between 9 to 18 years of age triggered 13 calls to the Police Department over a 2 month period in 2005. Calls ranged from vandalism and disturbances to attempts to steal vehicles.
3. Pasadena.
a. The City of Pasadena initiated an ordinance to regulate group homes in Summer 2006.
b. The City had received numerous complaints regarding the incompatibility and impacts of various kinds of group homes in residential zones.
c. The City’s Planning Commission considered a new ordinance regulating group homes on February 14, 2006.
4. Murrieta.
a. The City of Murrieta enacted a temporary moratorium on group homes in 2005 in response to complaints about unlicensed sober living facilities in residential neighborhoods.
b. Residents complained to the City Council about sober living homes operating without a license.
c. City code enforcement officers had cited a sober living home for having two more residents than allowed by law without a license.
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4. FEDERAL CASES UPHOLDING THE REGULATION OF GROUP HOMES AT
THE STATE AND LOCAL LEVEL.
A. Oxford House v. City of St. Louis (8th Cir. 1996) 77 F.3d 249
1. City of St. Louis’ zoning ordinance limited group homes to a maximum of eight handicapped residents.
2. The Court concluded that St. Louis’ eight-person rule was rational based on its legitimate interest in decreasing congestion, traffic, and noise in residential areas.
3. The Court found that Congress did not intend the Fair Housing Act to “remove handicapped people from the ‘normal and usual incidents of citizenship, such as participation in the public components of zoning decisions, to the extent that participation is required of all citizens whether or not they are handicapped.”
B. Gamble v. City of Escondido (9th Cir. 1997) 104 F.3d 300
1. Life Care Residences sought to construct a complex for physically disabled elderly adults in a single-family residence in Escondido. The proposed building was 10,360 square feet with eight bedrooms and twelve bathrooms. The upper portion was designed to house 15 elderly disabled adults with the lower portion serving as an adult day care facility. A ten-car parking lot was proposed.
2. The City denied the conditional use permit application because the proposed building was too large for the lot and did not conform in size and bulk with neighborhood structures.
3. The Court concluded that the City’s concern for the character of the neighborhood was legitimate and nondiscriminatory.
C. Familystyle of St. Paul, Inc. v. City of St. Paul (8th Cir. 1991) 923 F.2d 91
1. The State of Minnesota advanced the deinstitutionalization of the mentally ill by requiring new group homes to be located at least a quarter mile from an existing residential program.
2. The Court upheld both the State’s and City’s group home dispersal requirements finding that they were designed to “ensure that mentally handicapped persons needing residential treatment will not be forced into enclaves of treatment facilities that would replicate and thus perpetuate the isolation resulting from institutionalization.”
3. The Court added, “the quarter-mile spacing requirement guarantees that residential treatment facilities will, in fact, be ‘in the community,’ rather than in neighborhoods made up of group homes that re-create an institutional environment setting.”
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D. Bryant Woods Inn, Incorporated v. Howard County, Maryland (4th Cir. 1997) 124 F.3d 597
1. An owner of a group home for the disabled or elderly residents sought a variance to expand the size of an existing home from 8 to 15 residents.
2. Neighbors were concerned about parking and congestion, and that expansion might result in overflow parking onto a residential street. Neighbors were concerned that 15 residents would be too intense for the particular lot.
3. The County denied the request for the variance.
4. The Court found that nothing in the record suggested that a group home of 15 residents, as opposed to 8, is necessary to provide a “reasonable accommodation” to individuals with handicaps.
5. POTENTIAL FOR REGULATORY SOLUTIONS.
A. Certification.
1. The County of Orange maintains a certification program for sober living facilities (those that do not provide treatment or recovery services). Only certified sober living facilities are given referrals by County departments.
2. The process requires each facility to submit its policies and procedures, including smoking and prescription drug policies. The process requires all staff to be subject to a background check by the Orange County Sheriff’s Department.
3. All prospective residents must complete forms listing past crimes.
4. The County also requires certified facilities to implement and enforce a good neighbor policy.
B. Local Regulation.
1. The State is unable to take account of local zoning concerns and particular community characteristics.
2. Cities and counties are best equipped to engage in planning and zoning for their planned and more established communities. Cities and counties can and must regulate structures regardless of their current use.
3. State Licensed Facilities.
a. Use Permit. Requiring a use permit for all licensed facilities of 7 or more residents, and licensed facilities of 6 or fewer residents if operated in close proximity to each other.
(1) The City of Costa Mesa allows residential care facilities of 7 or more persons in certain residential zones only with a conditional use permit. (Costa Mesa Municipal Code, § 13-
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30.)
(2) California law does not prohibit requiring a use permit for facilities of 7 or more persons (e.g., Health & Safety Code, §11834.23).
(3) Federal law does not prohibit requiring a use permit for a group home for handicapped individuals so long as the city or county does not treat handicapped individuals differently from non-handicapped individuals. An ordinance must be carefully crafted given potential discrimination claims under the federal Fair Housing Amendments Act of 1988 (“FHAA”; 42 USC § 3601) under theories of disparate treatment or disparate impact. Additionally, a local municipality may violate the FHAA by refusing to make reasonable accommodations for handicapped persons. (Gamble v. City of Escondido (9th Cir. 1996) 104 F.3d 300, 304-305.)
b. Over-concentration. Limit concentration of group homes in residential neighborhoods by requiring minimum distance between all group homes, whether licensed or unlicensed.
(1) In Familystyle of St. Paul, Inc. v. City of St. Paul (8th Cir. 1991) 923 F.2d 91, the Court upheld group home dispersal requirements between homes for the mentally ill finding that “the quarter-mile spacing requirement guarantees that residential treatment facilities will, in fact, be ‘in the community,’ rather than in neighborhoods made up of group homes that re-create an institutional environment setting.”
(2) To avoid the over-concentration of group housing facilities, the City of Riverside requires a 300-foot separation between any two different or same type of group housing, transitional shelter, permanent emergency shelter, or drop-in center. Riverside requires a 1000-foot separation where any of the uses is a parolee/probationer home. (Riverside Municipal Code, §19.64.040(S).)
c. 6 or Fewer Loophole. Define the number of residents by the entire premises, site, building, or group of buildings that collectively provide services; not by a single building where separate buildings are integrated.
(1) On February 13, 2007, the City of Newport Beach initiated amendments to its Zoning Code (Resolution 2007-10) that would revise its land use classifications for “Residential Care, Limited” (6 or fewer) and “Residential Care, General” (7 or more occupants). The proposed amendments would state that the number of occupants relates to the entire premises, site, or building, and not any single building. Thus, the number of occupants in multiple buildings would be considered collectively where those
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buildings are either owned by the same entity, or operated in furtherance of a single plan or goal.
(2) The regulations implementing the state law on alcoholism or drug abuse recovery or treatment facilities define “facility” as “any facility, building, or group of buildings….” (9 CCR, § 10501(a)(27).)
(3) Under state law, a single license may be obtained for “a facility wherein separate buildings or portions of a residential facility are integral components of a single alcoholism or drug abuse recovery or treatment facility and all of the components of the facility are managed by the same licensee.” (Health & Safety Code, § 11834.09.)
4. Unlicensed Facilities, including Sober Living Homes.
a. Use Permit. Requiring a use permit for all unlicensed facilities, regardless of the number of occupants.
(1) The City of Dana Point defines “group home” as “any residential care facility for six or fewer persons which is licensed by the State.” (Dana Point Municipal Code, §9.75.270.) While licensed group homes do not require a conditional use permit, unlicensed facilities are either prohibited from certain residential districts or require a conditional use permit. (Dana Point Municipal Code, §9.09.020.)
(2) The City of Irvine allows sober living facilities only in its Lifelong Learning District and requires a conditional use permit. (Irvine Municipal Code, § 3-37-39.8.1.)
(3) Federal law does not prohibit requiring a conditional use permit for a group home for handicapped individuals so long as the city or county does not treat handicapped individuals differently from non-handicapped individuals. An ordinance must be carefully crafted given potential discrimination claims under the federal Fair Housing Amendments Act of 1988 (“FHAA”; 42 USC § 3601) under theories of disparate treatment or disparate impact. Additionally, a local municipality may violate the FHAA by refusing to make reasonable accommodations for handicapped persons. (Gamble v. City of Escondido (9th Cir. 1996) 104 F.3d 300, 304-305.)
b. Definition of “Boarding House”.
(1) Regulate unlicensed facilities through local legislation affecting “boarding houses.”
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(2) State law prohibits cities and counties from including licensed alcoholism or drug abuse recovery or treatment facilities serving six or fewer persons within their definition of “boarding house.” (Health & Safety Code, § 11834.23.)
(3) Include unlicensed facilities within local definition of “boarding housing” subject to “reasonable accommodation” requirements of FHAA.
(4) Such regulation could apply to all who rent rooms without regard as to who is renting the room and without differential treatment based on a person’s status.
(5) The City of Orange defines “boarding house” as “a residence or dwelling, other than a hotel, wherein three or more rooms are rented under three or more separate written or oral rental agreements, leases or subleases or combination thereof, whether or not the owner, agent or rental manager resides within the residence.” (City of Orange Municipal Code, § 17.04.021.)
(6) California Attorney General concluded that cities may prohibit, limit or regulate the operation of a boarding house in a low density residential zone in order to preserve the residential character of the neighborhood. Preserving the residential character of a neighborhood is a legitimate government purpose that may be reasonably achieved by prohibiting commercial enterprises such as boarding house businesses. (86 Ops.Cal.Atty.Gen 30 (Mar. 19, 2003).)
c. Over-concentration. Limit concentration of group homes, in residential neighborhoods, including unlicensed facilities, by requiring minimum distance between all facilities, whether licensed or unlicensed. (Familystyle of St. Paul, Inc. v. City of St. Paul (8th Cir. 1991) 923 F.2d 91.)
6. SUMMARY.
Numerous residential communities throughout California have been significantly impacted by the over-concentration of all types of “group homes.” Despite a complex federal and state regulatory framework, cities and counties do have the authority to regulate the number and location of group homes so long as they do not discriminate against people with disabilities.
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Alene M. Taber, Esq., AICP, concentrates her practice in assisting clients with administrative law issues such as, compliance with air quality regulations and California Environmental Quality Act (“CEQA”), and obtaining land use entitlements before local planning agencies. Ms. Taber also has experience litigating entitlement rights, CEQA and other environmental issues, imposition of fees, and constitutional rights cases and is currently co-counsel in air quality/CEQA litigation related to the Salton Sea (QSA Coordinated Proceedings). Prior to joining Jackson, DeMarco, Tidus & Peckenpaugh, Ms. Taber worked for the South Coast Air Quality Management District (“SCAQMD”) for 12 ½ years and was responsible for managing the permitting and enforcement of facilities in the region. Ms. Taber was a contributing author to SCAQMD’s “CEQA Air Quality Handbook” and “Making Clean Air a Priority: A Guide for Planners in Local Government.” Ms. Taber was also a previous city planner with the Southern California Association of Governments (“SCAG”) where she worked on transportation and air quality issues and the City of Carson where she processed land use entitlements and subdivision maps, drafted CEQA documents, and wrote several ordinances.
Michael J. Alti, Esq., concentrates his practice in environmental law, land use, and water rights. Mr. Alti assists private landowners and developers in obtaining project entitlements before cities and counties. Mr. Alti’s environmental and land use practice involves compliance with the California Environmental Quality Act, Subdivision Map Act, Williamson Act, local planning and zoning laws, and other state and federal environmental and land use laws. Mr. Alti is also a contributing author to the California Land Use and Water Law and Policy Reporters. Mr. Alti received his J.D. from the UCLA School of Law in 2001, where he served as Chief Production Editor and Webmaster for the Journal of International Law and Foreign Affairs. While at UCLA, Mr. Alti clerked in the Legal Department at the Metropolitan Water District of Southern California. Mr. Alti also has experience in eminent domain, local agency formation, public contracts, and legislative analysis.
This information has been prepared by Jackson DeMarco Tidus Peckenpaugh and is intended for information purposes ONLY. This information is provided only as general information, which may or may not reflect the most current legal developments. The opinions expressed may not reflect the opinions of Jackson DeMarco Tidus Peckenpaugh or any individual attorney. Transmission of this information is not intended to create, and receipt does not constitute an attorney-client relationship between you and Jackson DeMarco Tidus Peckenpaugh. This information contained herein is not a substitute for legal advice from a qualified attorney licensed in the appropriate jurisdiction.
RESEARCH MEMO To: Dan McHugh From: Stanford Criminal Justice Center RE: Possible Legal Issues Concerning the Redland’s Proposed Ordinance Regulating Parolee
Housing and Sober Living Arrangements There are three main questions that may potentially form a legal basis for challenging or attacking the legality of the Redlands Ordinance seeking to regulate or prohibit through the use of conditional use permits parolee housing or parolee sober living arrangements comprised of six or fewer parolees unofficially residing together in a single-family use restricted zone. These questions are:
1. Do the city’s delegated land-use powers and zoning enabling laws permit it to regulate housing arrangements for a certain designated class of persons, namely parolees, or to regulate the private alcohol consumption by this class of persons in such living arrangements under the auspices of regulating parolee sober living arrangements?
2. Does state preemption of alcohol regulation prohibit the city from attempting to
regulate parolee sober living arrangements by regulating private alcohol consumption or to enforce a city-mandated prohibition on private alcohol consumption by the parolee-residents of these homes?
3. Do federal and state antidiscrimination and fair housing laws prohibit the city from
regulating parolee or sober living housing arrangements?
Overall, it is most likely that the Ordinance, if passed by the city, would go unchallenged and could legally withstand any challenge brought against it. However, this memo will further flesh out the three problem areas that we have isolated in order to provide some guidance in structuring and implementing the Ordinance to avoid such potential legal pitfalls. Similar Ordinances in Practice As you know, other cities and counties in California have implemented ordinances similar to the Redlands Ordinance that prohibit or regulate the ability of parolees or certain classes of parolees to live in certain designated areas. These ordinances may serve as examples of ones that may survive, and have thus far survived, legal scrutiny and perhaps also serve to indicate the political viability of such ordinances. For instance, in November 2002, the City of Fontana successfully approved a similar ordinance regulating parolee homes in residential family zones using the conditional use permit. This
ordinance has been in effect since shortly after its adoption, with no apparent problems, and may serve for a model for what is possible using this type of ordinance. Polk County, Iowa has also proposed a similarly structured ordinance regulating the areas in which convicted sex offenders may reside within a residential zone. This ordinance mirrors one recently implemented in Des Moines, and would restrict a convicted sex offender from residing within 2,000 feet of the following child-oriented facilities: public parks, public libraries, public swimming pools, and multi-use recreational trails, in addition to the current residency restrictions for sex offenders around schools and day care centers mandated by existing Iowa state law. Following this example, it is reasonable to think that if a city may restrict residency for a certain class of ex-convicts, namely sex offenders, without issue, then a city ordinance restricting residency for a similar class of citizens—parolees—for similar public safety concerns should withstand legal scrutiny as well. The Polk County webpage may be found at:
http://www.co.polk.ia.us:8080/modules.php?name=News&file=article&sid=802 City Land-Use Delegations and Zoning Enabling Laws This might be the strongest avenue for challenging the proposed Ordinance, if the city’s delegated land-use power from the state or its zoning enabling laws do not seem to include the authority from the state to regulate parolee or sober living housing arrangements under the auspices of local land-use regulation powers. This is a determination that must be made by reviewing the pertinent laws and state-delegated land-use authority in Redlands. We would recommend looking first at Redlands’ zoning enabling acts that delegate zoning authority to the city to determine the scope of local authority versus state authority in zoning matters. Next, depending on whether Redlands is a charter city or a general law city, you may be able to look in the city’s charter for specific provisions concerning delegated land-use powers by the state to the city. While charter cities tend to be older municipalities and most California cities generally tend to be under general law, this is a distinction worth looking into. If Redlands is under general law, the scope of the city’s formal authority to act as delegated by the state will likely be enumerated statutorily instead of contained in a charter. Another possible avenue worth looking into is the city’s authority to regulate parolees using CUPs under occupancy limitation laws and whether residency restrictions on certain classes of people (here, parolees) generally counts as a legitimate “land-use” such that it would fall under the city’s delegated authority to regulate land-use. There are two related cases that deal with the topic of a city’s ability to regulate based on occupancy limitations. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) involved a city ordinance that restricted land use to single-family dwellings, where the word “family” was defined as one or more related persons or a number of persons not exceeding two that were unrelated. The U.S. Supreme Court upheld the constitutionality of this ordinance since the ordinance did not involve a fundamental right guaranteed by the Constitution and did not involve a procedural disparity inflicted on some persons, but not others.
In Moore v. City of East Cleveland, Ohio, 431 U.S. 494 (1977), the Supreme Court found that the Ohio city’s housing ordinance which attempted to regulate which members of an extended family network could permissibly live together under the zoning definition of “family” was unconstitutional because it bore no rational relationship to any permissible state objective and violated the Due Process Clause of the Fourteenth Amendment by infringing on the sanctity of family autonomy. Unlike the Belle Terre ordinance, this ordinance defined “family” in such a way that a second grandchild was excluded from living in the dwelling. The Court distinguished this case from Belle Terre by saying that the Belle Terre ordinance drew the line between related and unrelated individuals, while the East Cleveland ordinance distinguished between degrees of related individuals. The Court said here that cutting off the definition of “family” to include only the nuclear family was unfounded, since the security and support benefits characteristic of families were traditionally provided by the extended family as well. However, the Court’s loosening of the definition of “family” past the nuclear family does not seem like it would extend to a group of unrelated persons whose sole common characteristic is that they are on parole from a federal or state prison, and it would be unlikely that six or fewer parolees living in a common dwelling would qualify as a “family” for legal purposes. In fact, in Belle Terre, the Court explicitly authorized it as within legislature’s purview to define family on the basis of related versus unrelated persons. Two possible messages to take out of these cases are that: 1) As long as you do not regulate housing by distinguishing between classes of related family members, courts will allow legislative authority to restrict based on other classifications; and 2) If Belle Terre was permitted to prohibit any group of three or more unrelated persons from living in the same housing unit (presumably under the public policy rationale of eliminating hippie communes and college frat houses from setting root in a small, college-dominated town at the time), then perhaps restricting or regulating groups of six or fewer unrelated parolees living in the same housing unit under a public safety rationale is also permissible. State Alcohol Preemption If the aim of the Redlands Ordinance is to regulate sober living homes as separate from parolee homes, and in doing so, to enforce sobriety in these homes by prohibiting private alcohol consumption by the occupants of the homes, the city may run into a preemption problem—that the state’s regulation of alcohol effectively prohibits the city from attempting to regulate it. Depending on state law, the city may not be permitted to prohibit certain classes of people or certain areas of the city from privately consuming alcohol. We are not sure of the actual black-letter law on this, but can think of no instance in national history where a city was permitted, or even has attempted, to restrict private consumption of alcohol for certain classes of people or in certain areas within its borders.
However, if the aim of the Ordinance is simply to regulate those parolee homes that self-identify as “sober living arrangements” without any city-mandated adherence to such sober living principles, the preemption problem will disappear. There may be a potential negative incentive structure, however, if the city allows sober living homes to occupy certain sections of the city that other parolee homes are restricted from by virtue of their admirable clean-living ideals, but without regulating whether these sober living principles are being adhered to, such that parolee homes would want to claim sober living status to guarantee them priority zoning but then not be required in any way to comply with this self-designation. Equal Protection in Fair Housing Law Drug and alcohol addiction are explicitly not categorized as disabilities for the purposes of federal antidiscrimination, disabilities, and fair housing law, so drawing a distinction around sober living parolee homes will most likely not implicate these protections. Parolees are also not, in themselves, a suspect class and an ordinance regulating housing on the basis of parolee status would likely pass rational basis scrutiny if challenged. However, a potential fair housing or equal protection claim may arise if, as a result of the Redlands Ordinance, most or all parolee homes are relegated to poorer, more minority-influenced areas of the city, and if most parolees who are relegated to the minority neighborhoods are themselves minorities, this Ordinance might have a disparate impact effect of enforcing racial segregation in housing by sending the minority parolees to existing minority neighborhoods and keeping them out of predominantly white neighborhoods. Nationwide, we know that a large proportion of the people in prisons and of those who are then paroled are minorities – mainly of African American or Hispanic descent. Depending on the demographic constitution of the parolees being returned to the Redlands community, such potential segregationist effects are something that the city government should keep an eye on in both the drafting and implementation of this ordinance, in order to avoid this problem. There is also the possibility that homes of six or fewer occupants fall under the federal housing law minimum occupancy limit for federal regulation, such that federal housing law would not even apply to them. It would be advisable to look into the “Mrs. Murphy’s boarding house” clause of federal housing law to determine the minimum unit or person per dwelling limit for federal housing law to apply.
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PEGGY BURGESS
8960 Aqueduct Ave., North Hills, CA 91343
Tel. & Fax: 818-894-7425
Email: [email protected]
Council File 07-3427 Good Afternoon. Peggy Burgess, 8960 Aqueduct Ave. North Hills
While the City dawdles, our neighborhoods are suffering! They’re being destroyed by
addicts, alcoholics, parolees and probationers, including sex offenders and paranoid
schizophrenics. Neighbors are being harassed and children can’t even play in their own
yards. We can’t park or walk in our own neighborhoods.
Unlicensed, unregulated, un-permitted Sober Living homes are a blight on our
communities and do not belong in single family neighborhoods. These are simply boarding
houses charging $250 to $500 a week, per bed, and often house 20 to 30 individuals.
Transients with no stake in the community. Many are owned and operated by convicted felons
and, per LAPD, much of the neighborhood crime emanates from these homes. There is no
supervision, no mandatory drug or alcohol testing, no one to guarantee schizophrenics stay on
their meds. There are no restrictions and no eviction policy for repeat offenders, who are free to
come and go at will.
We need an Ordinance with teeth, and we need it now! .Licensing must be required.
These Homes must be restricted to multiple density zones and number of inhabitants must be
limited. They must not be located within 1,000 feet of schools or of each other. A conditional
Use Permit must be required in any zone. California Law allows Cities to adopt zoning
restrictions and require Conditional Use Permits for such facilities housing Seven (7) or more
individuals.
So please stop with the excuses and delays and give us an Ordinance now! Thank you.
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PEGGY BURGESS 8960 Aqueduct Ave., North Hills, CA 91343
Tel. & Fax: 818-894-7425 – email: [email protected]
May 15, 2008 Amy Brothers, Esq. Deputy City Attorney, Land Use Division Office of the City Attorney 200 N. Main St. 700 City Hall East Los Angeles, Ca 90012 Fax: 213-978-8214 Email: [email protected] Re: CF 07-3427–Plum Meeting 5/13/08 Staff Report on Draft Ordinance re Sober Living Homes Dear Ms. Brothers: I am appalled and outraged, but not surprised, at the abject failure of the City Attorney’s Office and City Planning to come up with anything but feeble excuses and more delays. I know that everyone in attendance at the Plum Meeting May 13 share my feelings. It is unthinkable that not only did these two agencies not do their jobs but that neither had the common courtesy to so notify Councilman Smith’s office in advance. Also, what really set off bells for many of us was the notable absence of members of the Sober Living Coalition/Network. It is unlikely they would miss an opportunity like that to press their case unless they had advance knowledge that there was nothing to put on the table. So one has to wonder from whom they’re getting their information. It was the responsibility of the City Attorney’s Office, with the assistance of City Planning, to review existing Ordinances and provide a Report, including Land Use Control Recommendations that can be enacted Citywide to regulate Sober Living Homes. Said report and recommendations were due December 11, 2008. This is May 15, 2008, five (5) months later and still we have nothing. More appalling was the lack of knowledge displayed by both the City Attorney’s office and City Planning when questioned. While all the proponents of an Ordinance who spoke, were clear and factual in their statements, what little information was relayed by your two agencies appeared to be based solely on assumption and/or misinformation. All the pertinent information is easily accessible on the internet, one just has to look it up. It’s a sad state of affairs when laymen are better informed than the so-called experts. The best your office could come up with was an uninformed observation that (1) the City of Murietta Ordinance was discriminatory and would not stand up in Court. Well it’s been in effect for some time now and, to date, has not been challenged as far as I’m aware! (2) That there are two lawsuits now in the courts regarding the Newport Beach Ordinance, something we all know. However, we all also know that Newport Beach is an entirely different situation in that it is a tourist town with numerous Holiday and summer rentals, involving more than seven (7) inhabitants, and the basic premise of the challenges is that such rentals were not included in the Ordinance. Your office was asked to do the research and provide land use control recommendations that can be enacted and by now should have a sense of what is doable. I daresay a private sector attorney could and would have done so many months ago. According to City Planning, the file was misplaced on someone’s desk for months and the Code Studies Unit only got it a few weeks ago. Where was the oversight there? Was it not the City Attorney’s
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Amy Brothers, Esq. Page 2 responsibility to follow up with Planning to ascertain the status of their report. Frankly, it’s been my experience that files do not get “misplaced.” They may get deliberately ”buried” or “ trashed” but not “misplaced” for six (6) months. At least not in the private sector where the individual(s) responsible would be summarily dismissed, or at very least severely reprimanded. I was further appalled to learn that you were seemingly unaware that existing State Law does allow Cities to adopt zoning restrictions and require Conditional Use Permits for such facilities housing seven (7) or more individuals. (See email from Senator Patricia Wiggins office attached hereto.) The Federal Fair Housing Act also allows local municipalities to enact zoning restrictions for SLF housing 7 or more individual and, contrary to the misinformed opinions of those in the City Attorney’s Office, Federal Law takes precedence over State Law. You also did not seem to be knowledgeable about SB 992 and AB 724, two bills requiring mandatory licensing and regulation of all sober living homes now pending in the State Legislature. Again, having discussed this issue with two other deputy City Attorneys, I’m not surprised. I’m well aware of the pervasive “ we can’t do anything, we might be sued” attitude of your office. (Or perhaps the City Attorney’s office is just delaying pending the outcome rather than taking the initiative as instructed by the City Council.) Also, FYI, sober living homes housing 7 or more people are simply rooming/boarding houses and the California Attorney General concluded that “cities may prohibit, limit or regulate the operation of a boarding house in a low density residential zone in order to preserve the residential character of a neighborhood. Preserving the residential character of a neighborhood is a legitimate government purpose that may be reasonably achieved by prohibiting commercial enterprises such as boarding house businesses.” (86 Ops.Cal.Atty.Gen. 30 (Mar. 19, 2003). Per our conversation in the hallway, attached please find the following documents to assist you in moving forward: 1. Email from Ana Rodriguez, Legislative Aide to Senator Patricia Wiggins (author of SB 992). Ms. Rodriguez responded to several questions I had asked and her answers appear under my questions. See Paragraph 2 of her response to my question no. 1, which states “Under the current practice and
interpretation of existing California law, cities can adopt zoning restrictions and/or require conditional use permits for these types of facilities housing 7-or-more residents, whether located in residential neighborhoods or on land zoned for commercial use.” Ms. Rodriguez elaborates further in her other responses. The bottom line is that Cities cannot require CUPs for SLF housing 6 or fewer residents, but they can require CUPs, Variances or other zoning clearances for facilities housing 7 or more persons. 2. Joint Statement of the Department of Justice and the Department of Housing and Urban Development. Please be aware that the Federal Fair Housing Act, like the State FHA, assumes that all such facilities are licensed and house six (6) or less individuals. Please note the information re “disabilities.” Second to last Paragraph Page 1 “/the disability discrimination provisions of the Fair Housing Act do not extend to persons “who claim to be disabled solely on the basis of having been
adjudicated a juvenile delinquent, having a criminal record, or being a sex offender. …the FHA does not protect persons who currently use illegal drugs, persons who have been convicted of the manufacture or sale of illegal drugs or persons with or without disabilities who present a direct threat to the persons or property of others.” FYI, the sober living homes house all of the aforementioned individuals and often 20-30 of them. So who’s checking??? 3. Research Memo to Dan McHugh from Stanford Criminal Justice Center regarding the Redlands Proposed Ordinance. Note specifically Paragraph 2, last page. “Drug and alcohol addiction are
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Amy Brothers Esq. Page 3 explicitly not categorized as disabilities for the purposes of federal antidiscrimination, disabilities fair housing law.” 4. Residential Recovery Homes and Their Local Impacts by Alene M. Taber, esq., AICP, of Jackson, DeMarco, Tidus & Peckenpaugh 5. My statement on May 13 for your reference. Please also see California Fair Employment and Housing Act –FEHA-Government Code section 12900-12926 3.C.(5), available on the internet, which states “Mental disabilities” does not include sexual behavior disorders, ---or psychoactive substance abuse disorders resulting from the current unlawful use of controlled substances or other drugs.” Earlier, I had given some of these documents to Tamir Dayan who I believe was also sending you a packet so some of the attached may be duplicates of what you receive from him. Let us be perfectly clear, the representatives of the various Neighborhood Councils and Property Owners Associations who attended the May 13 PLUM meeting, or sent letters and/or petitions, represent hundreds of thousands of stakeholders who are determined to have an Ordinance governing sober living homes. So I sincerely hope that the Office of the City Attorney and Department of City Planning move forward with all due haste to explore all avenues and expedite the drafting of such an Ordinance and that such draft is available within the 30 day extension granted by the PLUM Committee. Sincerely, Peggy Burgess Stakeholder, North Hills West NC cc: Councilman Greig Smith and Deputy Phyllis Winger North Hills West NC Chatsworth NC Granada Hills South NC Sunland Tujunga NC Venice NC Tarzana Property Owners Assoc. Woodford Manor Assoc. Granada Hills North NC Northridge East NC VANC Foothill Trails NC Sylmar NC West Hills NC Woodland Hills NC And others
NORTH HILLS WEST NEIGBHORHOOD COUNCIL Resolution Regarding Rooming and Boarding
Houses, Parolee/Probationers Houses, and Sober Living Facilities March 19, 2008 To the Mayor and City Council of Los Angeles:
The Board of the North Hills West Neighborhood Council urges the City Council of Los Angeles to
adopt an ordinance which creates provisions in the municipal code for conditional use permits to be required of all these uses of the low density single
family dwelling zones. These provisions should establish conditions for use that include development standards to direct
the structures on these facilities to be compatible with the neighborhood uses, and include particular requirements for their specialized uses ( for
example: additional on-site parking, limits on number of occupants, on site supervision, enrollment in support programs).
These provisions should also establish accountability and transparency in the conditional use process to insure neighborhood input and
monitoring of permit conditions.
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Hello Peggy, Please accept my apologies for not responding to your questions regarding SB 992 sooner. I’ve inserted the answers directly beneath your questions below. Feel free to contact us should you have further questions. Regards, Ana Rodriguez
-----Original Message----- From: [email protected] [mailto:[email protected]] Sent: Friday, March 28, 2008 3:12 PM To: Rodriguez, Ana Cc: [email protected] Subject: Re: SB 992 (Wiggins) - Questions
Hi Ana,
I've just read through SB992 and I have a couple of questions.
1. The only numbers referred to in this Bill are six (6) or fewer persons. The sober living houses that are
responsible for all the problems but are not licensed, regulated, permitted, etc. are those housing seven (7)
or more persons (often as many as 20 or 30). Will they still be exempt from licensing requirements?
Under the provisions of SB 992, any house that some people now call a “sober living house” or
“alcohol/drug-free transitional living house” that meets the definition of an “adult recovery maintenance
facility” would have to be licensed as an ARMF regardless of how many people live there if the bill
becomes law. No facility that meets the definition will be exempt from the licensure requirement
based on the number of residents.
Under the current practice and interpretation of existing California law, cities can adopt zoning
restrictions and/or require conditional use permits for these types of facilities housing 7-or-more
residents, whether located in residential neighborhoods or on land zoned for commercial use.
2. If that is the case, then how does SB 992, purport to control the problem facilities which are in fact big
business and a public nuisance?
See above
3. Sec. 13. Section 11834.23 on Page 11, line 34-38 States "No Conditional Use Permit, zoning variance or
other zoning clearance shall be required of an alcoholism or drug abuse recovery or treatment facility or an adult
recovery maintenance facility that serves six (6) or fewer persons that that is not required of a single-family
residence in the same zone." Does this mean that Cities can in fact require a Conditional Use Permit or
Variance for facilities housing seven (7) or more persons?
This is important. Because there is so much confusion surrounding this particular issue at all levels.
To answer your question, Yes. Cities can and almost always do require CUPs or other permits and or
exercise zoning controls for 7-and-over facilities. Also please be aware that the Code Section you have
cited is existing law. SB 992 does not change that part of 11834.23.
4. Also ever Bill I've read, including the Federal and State Fair Housing Acts and SB 992, uses
different terms, and provides different definitions, for what are commonly known as "sober living houses or
facilities". It's impossible for a lay person to determine which terminology and which definition applies to a
"Sober Living House." Are we to assume that the term "sober living house" applies to facilities with seven
or more persons? Can you clarify this for me
“Sober living home” is a fairly generic term that is generally understood to mean that the (typically
unrelated) adults living there agree that they will not use alcohol or illegal drugs. The term has
nothing to do with how many people live there. But generically, this living arrangement means the
residents live together so they can help emotionally support each other after graduating from full-blown
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substance abuse “treatment”, but still during the early stages of the addiction recovery process. Sober
living houses are vital for some people who need a safe and sober (and usually quite inexpensive) place
to live after years of addictive behavior and living environments that might not be the most conducive to
staying clean and sober.
“Sober living home” doesn’t seem to be specifically defined in any statute that I am aware of, but the
term (and similar terms) is well understood within the treatment community. SB 992 at one time would
have enacted a statutory definition of a “sober living home” in order to distinguish it (as a generally
unstructured, un-programmed and un-staffed shared living arrangement) from an “adult recovery
maintenance facility” which is staffed and more structured / programmed. Because a group known as
the “Sober Living Network” (based in Santa Monica and operating as a CBO in 4 or 5 counties in
southern California) opposed the inclusion of any definition of “sober living home” in SB 992, that
definition was amended out of the bill on April 11, 2007.
Please advise and thanks again.
Peggy Burgess
In a message dated 3/27/2008 1:15:53 P.M. Pacific Daylight Time, [email protected] writes:
Hi Peggy, It was nice talking to you over the phone today. Attached is the latest version of SB 992 along with a fact sheet our office put together. Below is the link to the assembly members, you can click on their name to get their complete mailing address.
http://www.assembly.ca.gov/clerk/MEMBERINFORMATION/memberdir_1.asp
Thanks for your support! Regards,
Ana V. Rodríguez
Legislative Aide
Senator Patricia Wiggins
State Capitol, Room 4081
Sacramento, CA 95814
Phone: (916) 651-4002
Fax: (916) 323-6958
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