Loading...
HomeMy WebLinkAboutGroup Homes-Residential Zones (PA2004-102)CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT Agenda Item No. 3 May 20, 2004 TO: CHAIR AND MEMBERS OF THE PLANNING COMMISSION FROM: Robert Burnham, City Attorney 644 -3131, rburnhamfa-)citv.newoort- beach.ca.us SUBJECT: Zoning Amendment/Recovery Facilities ISSUE: Should the Planning Commission recommend approval to the City Council of amendments to the Zoning Code (Exhibit A) that preserve the character of residential neighborhoods in a manner consistent with State and Federal statutory/decisional law related to the regulation of recovery facilities? Staff recommends that the Planning Commission recommend approval of the proposed amendments to the Zoning Code that add to or modify various provisions to ensure preservation of the unique character of our residential neighborhoods in a manner consistent with State and Federal statutory and decisional law related to regulation of recovery facilities. BACKGROUND: On February 24- 2004, the City Council initiated amendments to the Zoning Code "pertaining to recovery facilities in residential districts." For purposes of this memo, we are using the term "recovery facilities" to mean dwelling units that house persons who are "abstinent in recovery" or who suffer from a disorder or other condition that would constitute a "handicap" under Federal or State law. The following is a summary of the statutory and decisional law that is most pertinent to the regulation of recovery facilities: 1. State law requires the City to treat State - licensed drug or alcohol treatment facilities serving six or fewer occupants as single family residential uses. State law also preempts local ordinances from imposing special building, fire safety, fee or permit requirements on State - licensed drug or alcohol treatment facilities serving six or fewer occupants. In this regard, the number of occupants does not include the State licensee, members of the licensee's family, or persons employed at the facility. 2. The Fair Housing Act Amendments of 1988 (FHAA) prevents the City's from adopting or enforcing zoning ordinances that impact recovery facilities for handicapped individuals differently than non - handicapped residential uses in the same zone unless the City: (a) can prove the ordinance is necessary to further a legitimate governmental interest; and (b) reasonably accommodates handicapped individualstuses by waiving enforcement unless we can prove that a waiver would impose an undue burden on the City and undermine the basic purpose of the ordinance. 3. FHAA prohibits the City from, among other things, establishing a "one person per bedroom room" requirement for recovery facilities, imposing distance requirements between recovery facilities, or preventing "for - profit" entities from establishing or operating recovery facilities. 4. The provisions of State law relative to the treatment of State - licensed recovery facilities serving six or fewer occupants and the provisions of the FHAA that prohibit discrimination combine to prevent the City from treating unlicensed recovery facilities differently than State - licensed recovery facilities. DISCUSSION Jeff Goldfarb, an attorney with Rutan & Tucker and an expert in the law relative to recovery facilities, was retained to draft amendments to the Zoning Ordinance that ensure consistency with State and Federal statutory and decisional law while preserving the unique character of our diverse residential neighborhoods. Mr. Goldfarb's proposed amendments, which have been reviewed by staff, can be summarized as follows: 1. Various definitions — including "single family dwelling" and "family" — have been modified and the term "single housekeeping unit" has been added. (20.03.030) 2. Certain "Residential Use Classifications" have been modified to conform to provisions of law and the term "Residential Care, General" has been added. (20.05.030) 3. A "Reasonable Accommodation" process — with specific findings related to the nature of the living group - has been added to provide a mechanism for persons to request and for the City to evaluate and approve when appropriate a "Reasonable Accommodation." (Section 20.91.020) 4. The matrix of permitted land uses in Residential Districts has been modified to permit "Residential Care, Limited" (recovery facilities with six or fewer occupants per dwelling unit) in all Districts. The matrix has also been modified to require a "Reasonable Accommodation" for "Residential Care, General" (recovery facilities with seven or more occupants per dwelling unit) uses in all residential zones with the exception of the R -A and R -1 zones and to prohibit Residential Care, General" in R -1 and R -A zones. (20.10.020) The proposed amendments are exempt from CEQA pursuant to Section 15305 (Minor Alterations in Land Use Limitations) of the CEQA Guidelines. Su fitted by: obert Burnham, City Attorney a2 ORDINANCE NO. 2004- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING SECTION 20.03.030, OF CHAPTER 20.03, SECTIONS 20.05.030 AND 20.05.040 OF CHAPTER 20.05, SECTIONS 20.10.010 AND 20.10.020 OF CHAPTER 20.10, CHAPTER 20.91 OF TITLE 20 TO THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO PLANNING AND ZONING WHEREAS, the City has adopted various regulations on different types of group living arrangements at various times throughout the City's history; and WHEREAS, the existing regulations on group living are confusing and in need of refinement; and WHEREAS, in light of the Fair Housing Act Amendments, 42 U.S.C. 3601, et. seq., (the "Act "), the City desires to codify its process for providing reasonable accommodations when appropriate under this. Act; NOW, THEREFORE, the City Council of the City of Newport Beach does hereby ordain that certain Newport Beach Municipal Code section is amended to read, in full, as follows: SECTION 1: Section 20.03.030 of Chapter 20.03 is hereby amended to read as follows: 20.03.030 Definitions. "Dwelling, multifamily" means a building containing three or more dwelling units:, each of which is for occupancy by one family. "Dwelling, single- family" means a building containing one dwelling unit:, for accupancv bone family. "Dwelling, two- family" means a building containing two dwelling units -. each of which is for occupancy by a one family. "Family" means two or more persons living as a sSingle hHousekeeping oUnit. within a #we ' The term "fFamily" shall r+e�teinclude residential care, limited facilities for six or fewer 4eveiepmentally disabled, mentally disordered or otherwise handicapped persons.; but no other _living_graup not living together as a Single Housekeeping Unit. Page 1 of 14 EXHIBIT A 3 "Single Housekeeping Unit" means the functional equivalent of a traditional family, whose members are a non - transient, interactive group of persons jointly occupying a single dwelling unit, including the }aint use of common areas and sharing household activities and responsibilities such as meals, chores, and expenses. SECTION 2: Section 20.05.030 of Chapter 20.05 is hereby amended to read as follows: 20:05.030 Residential Use Classifications. A. "Day -Care, Limited ". Pjanrne_diea? e-.Fe and supepAsG means non - residential non - medical care and supervision of twelve (12) or fewer persons on a less than twenty- four -hour basis. This classification includes but is not limited to nursery schools, preschools, and day -care centers for children (large and small family day -care homes) and adults. B. "Group residential" -means -9shared living quarters without separate kitchen or bathroom facilities for each room or unit: This classification includes boarding houses, dormitories, fraternities, sororities, and private residential clubs, but excludes Residential Care- Limited. Residential Care - General and residential hotels (See Single -Room Occupancy (SRO) Residential Hotels, Section 20.05.050(EE)(4)). C. "Multifamily Residential"-. means Tthree or more dwelling units on a site. This classification includes mobile home and factory-built housing. D. "Residential Care, Limited." means _shared living quarters__without separate kitchen or bathroom facilities for each room or unit for Twenty _euF hou six or fewer person _Rffles 0. daily the-state of ^alifemi ., with phvsical or mental impairments which substantially limit one or more of such person's maior life activities. This classification also includes. but is not limited to group homes sober living enviranments, recovery facilities, and establishments provided non - medical care for persons in need of personal services, supervision. protection. or assistance essential for sustaining the activities of daily livin E. "Residential Care. General" means . shared living quarters without separate kitchen or bathroom facilities for each room or unit for even or more persons with homes, sober living environments, recovery facilities and establishments roviding non - medical care for persons in need pf personal services supervision, protection or assistance essential for sustaining the activities of daily living €F. "Single- Family Residentiak'L means Bbuildings containing one dwelling unit located on a single lot._ for occupancy by one family._ This classification includes mobile home and factory-built housing. Page 2 of 14 t f~G. "Two- Family ResidentiaV "_means Sbuildings containing two dwelling units located on a single lot -. each unit limited to occupancy by a sin Ice family. This classification includes mobile home and factory-built housing. SECTION 3: Section 20.05.040 of Chapter 20.05 is hereby amended to read as follows: 20.05.040 Public and Semi - public Use Classifications. R. Residential Care, General. peFsens, inaluding r.de of the juvenile .i4 need of enal enom daily4iv+3 . Shared living_guarters without separate kitchen or bathroom facilities for each room or unit for seven or more 2grsons with physical or mental impairments which substantially limit one or more e# such peeson's malor lifie activities. This classification includes, but is not limited to group homes. sober living environments, recovery facilities and establishments providing non- medical care for persons in need of personal services, supervision protection or assistance essential for sustaining the activities of daily living. ^- i'� L'sa. �m�,cx`rr�a,re� rs SECTION 4: Sections 20. 10.010 and 20.10.020 of Chapter 20.10 are hereby amended to read as follows: 20.10.010 Specific Purposes. H. Provide public services and facilities to accommodate planned population densities. The Sspecific residential districts and their urposes -are as follows: Residential - Agricultural (R -A) District. Provides areas for single - family residential and light farming 4 nd -uses. Single - Family Residential (R -1) District. PFOvi de aFeas `^• single Family residential land uses by limiting occ aefy to -one Family. Restricted Two Family Residential (R -1.5) District. Provides areas for single - family and two family residential land uses with the total gross floor area of all buildings limited to a maximum floor area ratio of 1.5 times the buildable area. Two Family Residential (R -2) District. Provides areas for single - family and two - family residential land uses. Multifamily Residential (MFR) District. Provides areas for single - family, two - family, and multiple family residential land uses. Page 3 of 14 5 Section 20.10.020 Residential Districts: Land Use Regulations. The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in residential districts, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in residential districts. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91, The letters "PD /U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P /UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. The letters "RA "., desi mates use classifications for which a Reasonable Accommodation must first be obtained oursuant to Chaoter 20.91. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. Residential Districts: Land Use Regulations P = Permitted UP = Use permit PD /U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) RA = Reasonable Accommodation - = Not Permitted R -A R -1 R -1.5 R -2 MFR Additional Regulations RESIDENTIAL (A), (B), C Day -Care, Limited P P P P P Group Residential P - Residential Care, Limited P P P P P Residential Care General - -- RA RA RA Single-family Residential P P P P P D, E M Multifamily Residential --- - -- - -- - -- P D Two - Family Residential - - -- P P P D PUBLIC AND SEMI - PUBLIC A , (B), C Cemeteries - L -1 L -1 L -1 L -1 Clubs and Lodges L -2 I L -2 L -2 L -2 Convalescent Facilities 1UP 1UP JUP IUP Day-Care, General UP I UP JUP JUP Page 4 of 14 0 Residential Districts. Land Use Regulations P = Permitted UP = Use permit PD /U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) RA = Reasonable Accommodation - - = Not Permitted R -A R -1 R -1.5 R -2 MFR Additional Re ulations Government Offices - -- UP UP UP UP Hospitals - -- UP UP UP UP Park and Recreation Facilities UP UP UP UP UP Public Safety Facilities UP UP UP UP UP Religious Assembly UP JUP UP UP UP Residential Care, General UP JUP UP UP UP Schools, Public and Private UP UP UP UP UP Utilities, Major UP UP UP UP UP Utilities, Minor P P P P P COMMERCIAL USES (A), (B), C Horticulture, Limited P --- - -- - -- - Nurseries PD/ U - -- - -- -- - -- Vehicle/Equipment Sales and Services - Commercial Parking Facility - L -3 L -3 L -3 L -3 Visitor Accommodations -Bed and Breakfast Inns - -- - -- - -- UP UP F -SRO Residential Hotels . - -- - -- - -- - -- UP AGRICULTURAL AND EXTRACTIVE USES (A), (B), (C) Animal husbandry PD/ U - -- - -- - -- (G) Crop Production P - - -- - -- Mining and Processing L-4 L-4 L-4 L-4 L -4 H ACCESSORY USES (A), (B), G Accessory Structures and Uses P/U P P/U P P /UP P /UP P /UP (1) Page 5 of 14 Residential Districts: Land Use Regulations P = Permitted UP = Use permit PD /U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) RA = Reasonable Accommodation - -- = Not Permitted R -A R -1 R -1.5 R -2 MFR Additional Regulations TEMPORARY USES (A), (B), C Circuses and Carnivals P P P P P K Commercial Filming, Limited P P P P P K Personal Property Sales P P P P P L Heliports, Temporary L -5 — - - - -- L -5 J Real Estate Offices, Temporary L -5 L -5 L -5 L -5 L -5 (B) Residential Districts: Additional Land Use Regulations L -1: Twenty (20) acres minimum. L -2: Limited to yacht clubs, use permit required. L -3: Public or no fee private lots for automobiles may be permitted in any residential district adjacent to any commercial or industrial district subject to the securing of a use permit in each case. L -4: See Chapter 20.81, Oil Wells. L -5: Subject to the approval of the Planning Director. (A): See Section 20.60.025, Relocatable Buildings. (B): See Section 20.60.015, Temporary Structures and Uses. (C): See Section 20.60.050, Outdoor Lighting. (D): With the.exception of uses in the R -1 Zone. Aany dwelling unit otherwise permitted by this Code may be used for short term lodging purposes as defined in Chapter 5.95 of the Municipal Code subject to the securing of: A business license pursuant to Chapter 5.04 of the Municipal Code. 2. A transient occupancy registration certificate pursuant to Section 3.16.060 of the Municipal Code. 3. A short term lodging permit pursuant to Chapter 5.95 of the Municipal Code. (E): See Chapter 20.85, Accessory Dwelling Units. (F): See Section 20.60.110, Bed and Breakfast Inns. Page 6 of 14 (/ b (G): Keeping of Animals in the R -A District. The following regulations shall apply to the keeping of animals in the R -A District: 1. Large Animals. The keeping of large animals (as defined in Section 20.03.030) shall be subject to the following regulations: a. Horses. One horse may be kept for each ten thousand (10,000) square feet of lot area, up to a maximum of three horses; provided, the horse or horses are kept for recreational purposes only. The keeping of four or more horses for recreational uses shall require a use permit issued by the Planning Director. The keeping of horses for commercial purposes shall require a use permit issued by the Planning Commission. b. Other Large Animals. Other large animals, including goats, sheep, pigs and cows, may be kept on lots of fifteen thousand (15,000) square feet or more and the number shall not exceed two adult animals of any one species. C. Total Number Permitted. The total number of large animals shall not exceed six. Offspring are exempt until such time as they are weaned. 2. Domestic and Exotic Animals. The number of domestic and exotic animals (as defined in Section 20.03.030) shall not exceed six. Offspring are exempt up to the age of three months. The keeping of four or more dogs over the age of three months shall require a kennel license pursuant to Section 7.04.090 of the Municipal Code. The keeping of wild animals shall require a permit pursuant to Chapter 7.08 of the Municipal Code. 3. Small Animals. The number of small animals, other than domestic and exotic animals (as defined in Section 20.03.030), shall not exceed six. Offspring are exempt up to the age of three months. 4. Control. a. Domestic Animals. No such animals, except for cats, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure or otherwise under the control of the owner of the property. b. Other Animals. No animal, other than domestic animals, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure. (H): See Chapter 20.81, Oil Wells. (1): See Section 20.60.100, Home Occupations in Residential Districts. (J): See Section 20.60.055, Heliports and Helistops. Page 7 of 14 I (K): Special event permit required, see Chapter 5.10 of the Municipal Code. (L): See Section 20.60.120, Personal Property Sales in Residential Districts. (M): See Section 20.60.125, Design Standards for Mobile Homes on Individual Lots. SECTION 5: Chapter 20.91 of Title 20 is hereby amended to read as follows: 20.91.010 Purpose. A. This chapter provides the flexibility in application of land use and development regulations necessary to achieve the purposes of this code by establishing procedures for approval, conditional approval, or disapproval of use permit and variance applications. B. Use permits are required for use classifications typically having unusual site development features or operating characteristics requiring special consideration so that they may be designed, located, and operated compatibly with uses on adjoining properties and in the surrounding area. C. Variances are intended to resolve practical difficulties or unnecessary physical hardships that may result from the size, shape, or dimensions of a site or the location of existing structures thereon; from geographic, topographic, or other physical conditions on the site or in the immediate vicinity; or from street locations or traffic conditions in the immediate vicinity of the site. Variances may be granted with respect to property development regulations and performance standards, but do not extend to land use regulations. Section 20.91.015 Use Permits or-- Variance, or__Reasonable Accommodation Requisite to Other Permits. No building permit or certificate of occupancy shall be issued in any case where a use permit. of-variance or reasonable accommodation is required by the terms of this code unless and until such use permit or variance has been granted by the Planning Director or the Planning Commission or by the affirmative vote of the City Council on appeal or review and then only in accordance with, the terms and conditions of the use permit, or variance, or reasonable accommodation granted. 20.91.020 Application for Use Permit, or-- •Variance: or Reasonable. Accommodation. An application for a use permit, of-variance or reasonable accommodation shall be filed in a manner consistent with the requirements contained in Chapter 20.90, Application Filing and Fees. Page 8 of 14 20.91.025 Duties of the Planning Director and the Planning Commission. A. Authority. The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits erand variances, unless the authority for an administrative decision on a use permit is specifically assigned to the Planning Director in the individual chapters of this code. Director shall approve. conditionally approve, or disapprove applications for reasonable accommodations. The Director shall have the ability to review an application for reasonable accommodation regardless of whether this code specifically provides for such a reasonable accommodation when otherwise required by State or Federal law. Exception. The City Council shall have final decision - making authority on the applications for use permits, a variances_ and reasonable accommodations filed concurrently with amendments to the general plan, zoning code, or a planned community development plan or with a development agreement. B. Rendering of Decision. After the conclusion of the hearing on any application for a use permit, ar --a-- variance or reasonable accommodation, the Planning Commission shall render a decision within thirty -five (35) days. Where the authority for an administrative decision on a use permit is assigned to the Planning Director, the Planning Director shall render a decision within fourteen (14) days of the acceptance of a complete application. C. Report to the Planning Commission. Upon rendering a decision on a use permit, variance or reasonable accommodation the Planning Director shall report to the Planning Commission at the next regular meeting or within fourteen (14) days of the decision, whichever is appropriate. D. Notice of Decision. Upon the rendering, of a decision on a use permit. variance or reasonable accommodation,, by the Planning Director, a notice of the decision shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site. Section 20.91.030 Notice and Public Hearing. A. Public Hearings. The Planning Commission shall hold_ a public hearing on an application for a use permit or variance. The Planning Director shall hold a public hearing on an application for a reasonable accommodation. Public hearings are not required "for applications where the authority for an administrative decision on a use permit is assigned to the Planning Director. B. Timing of Hearings. A public hearing shall be held on all use permits, and variances; and reasonable accommodation applications, except as otherwise provided in this chapter, within sixty (60) days after the acceptance of a complete application. C. Required Notice. Notice of a public hearing or an administrative decision shall be Page 9 of 14 given as follows: 1. Mailed or Delivered Notice. a. Residential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property.within three hundred (300) feet, excluding intervening rights -of -way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or alternatively, from such other records as contain more recent addresses.. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. 2. Posted Notice. Notice shall be posted in not less than two conspicuous places on or close to the property at least ten days prior to the hearing or the administrative decision. 3. Published Notice. Notice shall be published in at least one newspaper of general circulation within the City, at least ten days prior to the hearing. D. Contents of Notice. The notice of public hearing or of the decision of the Planning Director shall contain: 1. A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing or of the purpose of the administrative decision; 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard at the public hearing or their rights of appeal in case of administrative decisions. E. Continuance. Upon the date set for a public hearing before the Planning Commission, the Planning Commission may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is Page 10 of 14 announced in open meeting. 20.91.035 Required Findings. The Planning Commission or the Planning Director, as the case may be, shall approve or conditionally approve an application for a use permit= -8f variance or reasonable accommodation if, on the basis of the application, plans, materials, and testimony submitted, the Planning Commission or the Planning Director finds: A. For Use Permits. That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located; That the proposed location of the use permit and the proposed conditions under which it would be operated or maintained will be consistent with the general plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the eCity; 3. That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. B. For Variances. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification; 2. That the granting of the application is necessary for the preservation and .enjoyment of substantial property rights of the applicant; 3. That the granting of the application is consistent with the purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district; 4. That the granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. Page 11 of 14 C. For Reasonable Accommodations. 1. The reasonable accommodations sought is Handicapped- related. 2. The aoplicant has demonstrated that the living group residing in the l:weltog functions as a Single Housekeeping-.Unit as evidenced by factors including, but not limited to, e lack of transiency among its members. For the purposes of reasonable accommodations is other than the R -1 Zone a lack of transciencv shall mean the household does not change more than 50% of its members is n any given calendar year. 3. The reasonable accommodation neither requires a fundamental alteration in the nature of a program affected bathe reasonable accommodation nor imposes an undue financial or administrative burden on the City. 20.91.040 Conditions of Approval. The Planning Commission or the Planning Director, as the case may be, may impose such conditions in connection with the granting of a use permit, 8F variance or reasonable accommodation as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. Such conditions may include requirements for off - street parking facilities as determined in each case. 20.91.045 Effective Date. Use permits, afK vadances and reasonable accommodations shall not become effective for fourteen (14) days after being granted, and in the event an appeal is filed or if the Planning Commission or the City Council shall exercise its right to review any such decision under the provisions of Chapter 20.95, the permit shall not become effective unless and until a decision granting the use permit, er-- variance or reasonable accommodation is made by the Planning Commission or the City Council. 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation. A. Expiration. Any use permit, of.-variance or reasonable accommodation granted in accordance with the terms of this code shall expire within twenty -four (24) months from the effective date of approval or at an alternative time specified as a condition of approval unless: A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or Page 12 of 14 4. The use is established; or 5. A time extension has been granted. In cases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit. B. Time Extension. The Planning Director may grant a time extension for a use permit, er- variance or reasonable accommodation for a period or periods not to exceed three years. An application for a time extension shall be made in writing to the Planning Director no less than thirty (30) days or more than ninety (90) days prior to the expiration date. C. Violation of Terms. Any use permit, of-variance or reasonable accommodation granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such use permit,, ef—variance or reasonable accommodation are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A use permit, ef-variance or reasonable accommodation shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96, Enforcement. 20.91.055 Amendments and New Applications. A. Amendments. A request for changes in conditions of approval of a use permit, of variance; or reasonable accommodation or a change to plans that would affect a condition of approval, shall be treated as a new application. The Planning Director may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or addition to the plan or the conditions of approval, and are consistent with the intent of the original approval. B. New Applications. If an application for a use permit, ef-variance or reasonable accommodation is disapproved, no new application for the same, or substantially the same, use permit or variance shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. 20.91.060 Rights of Appeal and Review. A. Appeals. Decisions of the Planning Director may be appealed by any interested party, unless otherwise prescribed in the individual chapters of this code, to the Planning Commission. Decisions of the Planning Commission may be appealed by any interested party to the City Council. B. Calls for Review. The Planning Commission may review any decision of the Planning Director. The City Council may review any decision of the Planning Page 13 of 14 �5 Commission. C. Procedures. Procedures for appeals and calls for review shall be as prescribed by Chapter 20.95, Appeals and Calls For Review. SECTION 5: This title shall become effective thirty (30) days subsequent to its adoption. SECTION 6: That if any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 7: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the day of , 2004, and adopted on the day of , 2004, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS ABSENT, COUNCILMEMBERS ��- ATTEST: CITY CLERK F:lusers\cat\shared\da\ Ordinance\ CategodesOfGrpLiving \051304.doc Page 14 of 14 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Study Session Agenda Item No. 3 February 10, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney 644 - 3131, rbumham( city.newoort- beach.ca.us SUBJECT: Federal Law and Group Homes ISSUE: To provide the City Council with an overview of the Federal law that impacts the regulation of "Group Homes" and provide direction to staff regarding any desired amendments to the Newport Beach Zoning Code (Zoning Code). RECOMMENDATION: Receive report and provide direction regarding any amendments to the Zoning Code the City Council may want to initiate. DISCUSSION: I have attached a memo from Jeff Goldfarb discussing the relationship between the Fair Housing Act Amendments of 1988 (FHAA) and provisions of the Zoning Code regulating group homes. Mr. Goldfarb's memo includes an analysis of our current group home regulations and suggests amendments the City Council may want to consider to ensure compliance with the FHAA and relevant decisional law. In summary, the FHAA prevents the City s from adopting or enforcing zoning ordinances that impact group homes for handicapped individuals differently than non - handicapped residential uses in the same zone unless the City: (a) can prove the ordinance is necessary to further a legitimate governmental interest; and (b) reasonably accommodates handicapped individuals by waiving enforcement unless we can prove that a waiver would impose an undue burden on the City and undermine the basic purpose of the ordinance. Mr. Goldfarb's analysis of our Zoning Code suggests that certain amendments may be appropriate to enable us to enforce the Zoning Code in a manner consistent with Federal and State statutory and decisional law. Subrri'tted by: Robert Burnham City Attorney MEMORANDUM TO: City Attorney Robert Burnham Assistant City Attorney Robin Clauson FROM: Jeffrey A. Goldfarb, Rutan & Tucker, LLP DATE: February 6, 2004 RE: Regulating Group Homes INTRODUCTION: Your office has asked us to outline the regulatory framework goveming local legislation and enforcement of the City's zoning laws on Group Homes. As explained below, the City's ability to regulate such uses is greatly circumscribed by the requirements of the Fair Housing, Amendments Act of 1988,42 USC § 3601 (the "FHAA "). SUMMARY: The FHAA restricts the City's ability to adopt and enforce zoning or other regulations which affect group homes for handicapped individuals ("Group Homes ") differently than similarly situated non - handicapped residential uses in the same zone. The FHAA requires a municipality to demonstrate that any regulation which impacts Group Homes differently than traditional residential uses be necessary to further a legitimate governmental interest. Furthermore, the FHAA requires municipalities to waive the enforcement of such regulations when they adversely impact " handicapped" individuals unless the municipality can demonstrate that such a waiver would impose an undue burden on the municipality and undermine the basic purpose which the regulation seeks to achieve. Regulations that typically have been found to violate the FHAA include, but are not limited to, the following: prohibitions on Group Homes in residential zones which allow other group living arrangements (boarding homes, fraternities and sororities, and apartments); conditional use permit requirements for Group Homes in residential zones if other group living arrangements are not similarly regulated; dispersal requirements mandating a certain distance between Group Homes; annual review of Group Homes' operating permits if not equally applied to other group living environments; and maximum occupancy levels for group homes not similarly imposed on other group living environments. The City's zoning ordinance regulates group homes by subdividing group homes into several categories and specifying whether each is permitted, conditionally permitted or prohibited in each of the City's residential zones. While the regulatory scheme is relatively sound, we have 2611066751 -OD23 472254.01 a02/06104 3 attached a list of possible amendments to the zoning code (Exhibit "X the City Council may want to consider. DISCUSSION: A. FHAA Limits on Zoning Code Enforcement This portion of the memorandum addresses the manner in which the FHAA limits the City's ability to regulate Group Homes through enforcement of the City's zoning ordinance. For the purpose of this memo, the term "Group Home" is. defined as a residential facility for persons defined by the FHAA as being "handicapped." The FHAA broadly defines "handicapped person" as either a person who is physically or mentally impaired in a way which limits one or more life activities, or a person who is not so impaired but is viewed as impaired by society. (42 USC § 3602(h); U.S. v. Southern Management Corp. (4th Cit. 1991) 955 F.2d 914.) As a result, a Group Home protected by the FHAA includes a home for the physically and/or mentally retarded, a convalescent home, and a half -way house or recovery home for abstinent, recovering alcoholics and drug addicts. (See, e.g. U.S. v. Southern Mgmt. Corp. (4a' Cit. 1992) 955 F.2d 914, 917 -23.) Conversely, if a facility does not provide a residence for "handicapped persons," the facility is not protected by the FHAA. The FHAA prohibits "disparate treatment" or "intentional discrimination" against handicapped persons (including individuals with substance abuse histories) vis -a -vis non handicapped persons that impacts the availability of housing for handicapped persons. The FHAA also prohibits actions which simply have the effect of discriminating against handicapped persons with regard to the availability of housing, regardless of whether such impact was intended (so -called "disparate impact" discrimination). Congress clearly intended the FHAA's prohibitions to apply to municipal zoning and land use regulations' Moreover, the FHAA also requires governmental entities to make "reasonable accommodations necessary to afford persons with disability equal housing opportunities." (42 USC § 4604(f)(3)(B).) Therefore, even though a regulation does not directly discriminate against handicapped persons, the City might nonetheless be required to waive such a regulation if the waiver is "(1) reasonable and (2) necessary (3) to afford handicapped persons equal opporhmity.to use and enjoy housing. (See, e.g., Corp. of the Episcopal Church in Utah v. West Valley City (D. Utah 2000) 119 F.Supp.2d 1215, 1221.). Each of these restrictions on municipal regulation are discussed below. 1. Intentional Discrimination Under the FHAA. The FHAA prohibits cities from intentionally discriminating against handicapped persons by adopting zoning or other regulations which limit the housing opportunities for the handicapped. A city will be held to have intentionally discriminated against handicapped persons when its actions ' in the House of Representatives' Committee Report on the FHAA, the Committee noted that it intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. "The act is intended to prohibit the application of special requirements through land use regulations, restrictive covenants, and conditional or special -use permits that have the effect of limiting the availability of such individuals to live.in the residence of their choice." (H.R. Rep. No. 100 -711; 100th Cong., 2d Sess. 24.) 261/066751 -0023 472254.01 a02/06/04 -2- restrict housing opportunities for handicapped persons vis -a vis non - handicapped persons and the regulations are based upon the handicapped status of the resident. "The `intent' of which the court speaks is the legal concept of intent, to be distinguished from motive. To prevail on a claim of discriminatory treatment, plaintiff is required to show only that the [handicapped status] of the people who were to live in the [proposed facility] was a.motivating factor in the [city's] decision. (Stewart B. McKenny v. Town Plan and Zoning Commission (D. Conn. 1992) 790 F.Supp. 1197, 1211, citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266.) The plaintiff is not required to prove that "the defendants were motivated by some purposefully malicious desire to discriminate against [handicapped persons] or that the defendants were motivated solely, primarily, or even predominantly by the [handicapped] status of the [applicant's] future tenants." A significant number of cases have found that municipalities' adoption and/or enforcement of various code provisions regarding the use of residential property for Group Homes intentionally discriminates against handicapped persons in violation of the FHAA. In Potomac Group Home v. Montgomery County, Maryland (D. Md. 1993) 823 F.Supp. 1285, the Court noted that "to prove discriminatory intent, a plaintiff need only show that the handicap of the potential residents of a Group Home, a protected group under the FHAA, was in some part the basis for the policy being challenged. [Citations.] Simply put, the inquiry under a disparate treatment analysis is whether similarly situated persons or groups are subject to differential treatment." (Id at 1295.) The Potomac Court invalidated a County requirement that a Group Home owner notify neighboring property owners of the type of Group Home planned, the nature of the anticipated handicapped residents, and the contact person within the county health department to .whom questions or complaints about the proposed Group Home may be addressed. The Court ruled that the regulation violated the FHAA as it constituted "intentional discrimination" because this was a requirement not generally imposed against non - handicapped `housing and because requirement was based upon the handicapped status of the resident. The court therefore ruled the regulation invalid as it violated the FHAA . (See also, Horizon House Development Services v. Township of Upper South Hampton (1992) 804 F.Supp. 683 [zoning requirement mandating homes for the handicapped be separated from each other by no less than one thousand (1,000) feet violated FHAA because the determination of whether the separation requirement applied was dependent on the handicapped status of the residents 2].) Courts have interpreted the "intentional' element of the discrimination claim very loosely. Recognizing that cities might attempt to disguise their discriminatory intent, the Court has allowed plaintiffs' cases to go forward once they simply establish an "inference" of intentional. discrimination. Once a plaintiff makes this relatively easy preliminary showing, the burden shifts to the city to demonstrate that the regulation stemmed from a legitimate, non - discriminatory reason or ` The court also rejected the argument that the dispersal requirement did not discriminate against handicapped persons, but rather was adopted in order to assist such persons' assimilation into the community by ensuring there was not an overconcentration or "ghettoization" of handicapped people. The court concluded that the dispersal requirement was based on unfounded or stereotypical fears regarding handicapped persons and was not and could not have been supported by a rational basis or a legitimate goal. As a result, the court found that the ordinance on its face violated the FHAA because, by placing a cap on the number of handicapped persons that can live within the community, it constituted an intentional denial of housing based on the handicap status of the Group Homes' future residents. (Id. at 696 -97.) 261/066751 -0023 472254.01 a02106/04 -3- / objective. The Ninth Circuit applied this test in Gamble v. City of Escondido (9th Cit. 1996) 104 F.3d 300. The Court stated that to establish a prima facie case for disparate treatment or "intentional discrimination" under the FHAA, the plaintiff need only show: (1) plaintiff is a member of a protected class; (2) plaintiff applied for a permit and was qualified to receive it; (3) the permit was denied despite plaintiff being qualified; and (4) defendant approved a permit for a similarly situated party during a period relatively near the time plaintiff was denied its permit. (Id. at 305.) The Court then noted that if the plaintiff makes the preliminary showing, the burden shifts to the city to articulate a legitimate non - discriminatory reason for its action. If the city can make such a showing, the burden again shifts back to the plaintiff to demonstrate that the articulated rationale for the action was mere pretext. In Gamble, the discriminatory treatment claim stemmed from the city's denial of a building permit to construct a Group Home in the city's residential district. The city denied the building permit because the Group Home was "too large for the lot and did not conform in size and bulls to the neighboring structures." (Id. at 303.) In rejecting the plaintiff's discriminatory treatment claim, the court first noted that the complaint did not allege that the city granted a permit to similarly situated parties relatively near the time the city denied the plaintiff's permit. As a result, the court found that the plaintiff had not established a prima facie case. The court nevertheless continued the analysis by noting that the city satisfied its burden by demonstrating that the reasons for the denial of the building permit (i.e., concern for the character of the neighborhood) was a legitimate non- discriminatory reason for the denial of the building lermit. (Id at 305.) As the plaintiff was unable to demonstrate that such a rationale is pre - textual, the court found that the plaintiff had failed to make a case for discriminatory treatment. (Id at 306.) These cases demonstrate that, regardless of how the court articulates the test, the FHAA requires the adoption or enforcement of regulations affecting Group Homes to be based on facts completely unrelated to the handicapped status of the facility's residents. As a result, any attempt to regulate Group Homes that is, or appears to be, based on a concern that handicapped persons (including persons with substance abuse problems) will, live in a particular area or zone, or a desire to reduce the housing opportunities available to handicapped persons in an area or zone, will likely run afoul of the FHAA. 2. Discriminatory Effect Under the FHAA.. A zoning regulation may also run afoul of the FHAA if it simply has a discriminatory impact or effect on handicapped persons. When challenging a zoning regulation on the theory that it has a discriminatory impact, the plaintiff need only show that the regulation negatively impacts housing opportunities for handicapped persons. If such an impact is shown, the burden is then placed on the city to demonstrate that the regulation furthers "a legitimate, bona fide governmental interest and that no alternative to the regulation or action would serve that interest with less discriminatory effect." (See, e.g., Oxford House, Inc. v. Town of Babylon (E.D. NY 1993) 819 F..Supp. 1179, 1182.) 3 Notably absent from this case was the typical outpouring of neighbor opposition to the Group Home, a fact that has regularly been used to argue the action being challenged is a mere pre -text for discrimination against handicapped persons. 261/066751 -0023 472254.01 02/06/04 -4- (a) Finding of Discriminatory Effect A plaintiff must establish "at least that the defendant's action had a discriminatory effect" to establish "disparate impact" or discriminatory effect" under the FHAA. (Gamble v. City of Escondido, supra, 104 F.3d at 306.) In Gamble, the plaintiff claimed the city's denial of a conditional use permit and building permit to construct a 10,360 square foot group home with a 10 car parking lot in a traditional single family neighborhood had a disparate impact on handicapped housing opportunities in violation of the FHAA. The Ninth Circuit noted that a disparate impact case is made when the occurrence of certain outwardly neutral practices (i.e., denying permits for structures physically inconsistent with the surrounding property) create a significantly adverse or disproportionate impact on handicapped persons' housing opportunities. (1d) The Gamble plaintiff failed to establish his disparate impact case because he presented no statistics or other proof demonstrating that the city's permit practices have had or will have a significantly adverse or disproportionate impact on handicapped persons' housing opportunities. (Id. at 306.) Rather, all the plaintiff could show was that there remained in the community a significant need for handicapped housing facilities and that such facilities needed to be larger than traditional single family structures. As the court noted, "a plaintiff must prove actual discriminatory effect, and cannot rely on inference." The court found that all the plaintiff had demonstrated is that the city's policy of limiting the issuance of building permits in the single family zone to buildings whose size was comparable to its neighboring properties merely limits opportunities for large group living. This conclusion, however, does not affect handicapped living groups differently than other large living groups. As a result, the court found the plaintiff failed to demonstrate that the city's policy had a discriminating impact. (b) Establishing the Challenged Regulations Are Necessary To Promote A Legitimate Governmental Interest. As previously noted, once a plaintiff demonstrates a rule or regulation which is neutral on its face actually has a discriminatory effect on handicapped persons' housing opportunities, the burden shifts to the city to demonstrate: 1) that the rule or condition serves a legitimate governmental purpose; and 2) the rule represents the least discriminatory means to serve that governmental purpose. Oxford House, Inc. v. Town of Babylon (E.D. NY 1993) 819 F.Supp. 1179, is illustrative. In Oxford House, plaintiffs sought to enjoin the town from enforcing its single - family zoning regulations against a proposed alcohol recovery home. Under the town code, a single - family dwelling must be occupied by: (1) persons related by blood, marriage, or adoption; or (2) by no more than four unrelated persons. Plaintiffs established a prime facie case by demonstrating that recovery homes cannot function with only four unrelated persons living together because the recovery process requires a critical mass of recovering persons in the same residential environment to be effective.4 The court therefore concluded that because recovering alcoholics need to live with more than four unrelated persons to effectuate recovery, the `Yule of four" adversely impacted their access to adequate housing. (Id. at 1183.) The burden then shifted to the town to prove that its 4 (See also, Oxford House, Inc. v. City of Albany (N.D. NY 1993) 819 F.Supp. 1168, 1176 ["plaintiffs assert the handicap requires them to live in close proximity -- in groups of six or more -- to provide necessary and moral support and counseling during their road to recovery "].) 261/066751 -0023 472254.01 a02/06/04 -5- actions furthered a legitimate governmental interest and that there were no less discriminatory alternatives to serve that governmental interest. The town asserted that the `Yule of four" was designed to maintain the residential character of the areas zoned for single - family dwellings. If more than four unrelated persons are permitted to live together, there will be a significant amount of transiency, which is inconsistent with the single family zone. Thus, the town argued, any discriminatory effect the rule of four may have on the recovery homes is due to the plaintiffs' transiency and failure to live as a family, not because of their handicap. (Id) The court found that, although the town's interest in its zoning requirements was substantial, that interest was not furthered by the rule of four. The court found that the history of plaintiffs' recovery home demonstrated that their operation did not in any way do harm to the residential character of the neighborhood.. The court therefore concluded that because the town failed to legitimize a policy that had a discriminating impact on housing for the handicapped, the rule of four violated the FHAA. Finally, even if the challenged regulations further the legitimate governmental interest, the town has the added burden of demonstrating that there is no less restrictive means to further that substantial governmental interest. In Stewart B. McKenny v. Town Plan and Zoning Commission, supra, 790 F.Supp. 1197, the plaintiff challenged a requirement that Group Homes obtain a special exemption permit in order to locate within a single - family residential zone. The town attempted to justify the requirement by arguing that a special exemption permit forces the Group Home to undergo an analysis which is necessary to ensure that the home would be consistent with the objectives of the town's single - family zone. After reaching the same conclusion as did the Town of Babylon court (i.e., that the plaintiff made a prima facie case by showing the policy had a discriminatory effect against handicapped persons' housing opportunities), the court concluded that the town's regulations violated the FHAA because there existed significantly less discriminatory alternatives available for the town to address its legitimate concerns. "The town could use its traditional police powers to ensure that the property is used in a manner conforming to a residential zone, to address any health or law enforcement problems that may arise, and to protect the welfare of the prospective tenants and the neighborhood. If a plaintiff operates the house in a manner in violation of the regulations, the town can investigate and issue a cease and desist order as it could with any other residential property." (Id at 1220.) 3. Affirmative Duty to Provide "Reasonable Accommodation ". In addition to prohibiting the adoption of regulations which are found to adversely impact housing opportunities for handicapped persons as a group, the Fair Housing Act has also been interpreted to require cities to waive valid regulations or make other `reasonable accommodations" to ensure housing is available for handicapped persons on the same basis as it is available to others. Specifically, the FHAA states that it is a discriminatory practice to ref se to make "reasonable accommodations in rules, policies, practices, or services when such accommodation may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." (42 USC § 3604(f)(3)(B).) As a result, even if a Group Home regulation was validly adopted, the City could be required, under certain circumstances, to waive the regulation if it restricted access to housing by handicapped persons. 261/066751 -0023 472254.01 a02/06/04 -6- lo/ "'Reasonable accommodation' means changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual." (Oxford House v. City of Albany (N.D. N.Y. 1993) 819 F.Supp. 1168.) A reasonable accommodation is required unless it would result in a fundamental alteration in the nature of a program or would impose undue financial or administrative burdens on the city. (See, U.S. v. Village of Marshall, Wisconsin (W.D. WI 1991) 787 F.Supp. 872, 878.) In Oxford House, Inc. v. Cherry Hill (D. N.J. 1992) 799 F.Supp. 450, the court gave the following example to crystallize the concept of a reasonable accommodation: "Thus, where everyone is provided with `equal access' to a building in the form of a staircase, reasonable accommodation to those in a wheelchair may require building a ramp." (Id at 642, fir. 25.) The affirmative duty to provide a reasonable accommodation was discussed in great detail in Hovsons, Inc. v. Town of Brick (3rd Cir. 1996) 89 F.3d 1096. There, the Town of Brick prohibited nursing homes in the R -R -2 zone but provided a variance procedure to allow such uses at the discretion of the town. An applicant for a nursing home for the handicapped sought a variance to locate the nursing home in the R -R -2 zone. The town denied the variance and the applicant sued under the FHAA claiming that the town violated its affirmative duty to provide a reasonable accommodation by granting the variance. The court of appeal agreed with the nursing home applicant. First, the court noted that the town, and not the applicant, has the burden of demonstrating that it has reasonably accommodated handicapped persons. (Id. at 1103.) The question remained, however: When is an accommodation "reasonable "? Finding the precise obligations encompassed by the FHAA's affirmative duty to reasonably accommodate are ambiguous, the court looked to the legislative history of the Act for guidance. The court noted that the House Report on the FHAA demonstrated that "the FHAA is intended to prohibit the application of special requirements through land use regulations ... that have the effect of limiting the availability of such individuals to live in the residence of their choice in the community." (Id. at 1105, citing H.R. Rep. No. 711, 100th Congress, Second Session 24.) The court thus reasoned that the town must waive its zoning requirements and therefore grant the requested variance, unless the town could satisfy its burden of proving the accommodation proffered by the nursing home (i.e., grant the variance) was not "reasonable." The court ruled that a town can satisfy its burden by demonstrating that it could not have granted the variance without (1) incurring undue financial and administrative burdens on the town; (2) incurring undue hardship upon the town; or (3) requiring a fundamental alteration in the nature of the town's zoning program. (Id) Applying the above analysis, the court found that the town could not make the required showing. The court concluded that the town failed to satisfy either of the first two methods of proving the requested accommodation was not reasonable because granting the variance would not "saddle the Township of Brick with undue financial and administrative burdens or otherwise result in the imposition of an undue hardship." (Id. at 1105.) The court reasoned that the nursing home would not require substantially more municipal services than other living groups. "The mere fact that the employees and residents of [the nursing home] will at times require the assistance of local police and other emergency services does not raise to the level of imposing a cognizable admini- strative and financial burden upon the community." (Id) The court also concluded the town could not demonstrate that granting the variance would undermine the town's zoning. In reaching this conclusion, the court essentially determined that the nursing home was not a land use that was so 261/066751 -0023 472254.01 a02/06/04 -7- substantially different from other land uses in the R -R -2 zone as to "fundamentally undermine the town's zoning scheme." (Id) B. Analysis of City's Existing Group Home Regulations. 1. Group Home Categories In The Citv Code The City's zoning ordinance creates several categories of Group Home -type uses: "Group residential" which is defined as "shared living quarters without separate kitchen or bathroom facilities for each room or unit. This classification includes boarding houses, dormitories, fraternities, sororities, and private residential clubs, but excludes residential hotels" (Newport Beach Municipal Code ( "NBMC ") § 28.05.030(B)); "Residential care, limited" which is defined as "twenty -four hour non - medical for six or fewer persons in need of personal services, supervision, protection, or assistance essential to sustaining the activities of daily living" (NBMC § 28.05.030(D)); and "Residential care, general" which is defined as "twenty - four hour non - medical care for seven or more persons, including wards of the juvenile court, in need of personal services, supervision, protection, or assistance essential to sustaining the activities of daily living. This classification includes only those services and facilities licensed by the State of California." (NBMC § 28.050.040(R).) The City's Residential Zoning Matrix (NBMC § 20.10.020, the "Matrix ") purports to specify whether these uses are permitted in the City's residential zones and any conditions such as a use permit. 2. Residential Zoning Categories The City's residential zones are divided into five categories: residential agricultural (RA), single family residential (R -1), restricted two family residential (R -1.5), two family residential (R -2), and multi- family residential (MFR). The Matrix contains the list of prohibited, permitted and conditionally permitted uses in these residential zones. According to the Matrix, "Group Residential" uses are only permitted in the R -A zone, while "Residential Care, Limited" is permitted in all residential zones. "Residential Care, General" is permitted in any residential zone but only if the applicant first obtains a conditional use permit. Although it is not entirely clear, it appears the City intends that all of its residential zones be defined by reference to the number of "family units" that can live in the dwelling unit or units located on the property5. This formulation limits the "single family zone" to one family in one dwelling unit per lot, while the "two - family residential zone" allows two dwelling units on the property but continues to limit that use to one family per dwelling unit. Similarly, the "multi family zone" permits multiple dwelling units, but again limits the occupancy to one family per dwelling unit (i.e., apartments, etc.) (NBMC § 20.05.030). "Family," in turn, is defined as "two or more persons living as a single housekeeping unit within a dwelling." The California Supreme Court has characterized a "single housekeeping unit" as living groups that "bear the generic character of a family unit as a relatively permanent household." (Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 134.) As such, with one exception which we will discuss below, 5 We reach this conclusion based upon the fact that the zoning designations include the word "family" (i.e., single family zone, two - family zone, etc.), and the code then defines the word "family." Presumably the use of the word "family" in the zoning name was intended to call out the nature of the occupancies within the zone. 261/066751 -0023 472254.01 a02 /06/04 the code only allows people to live together in a dwelling unit in any residential zone if they live as. a "single housekeeping unit." This is true regardless of the particular residential zone. This issue is vitally important for purposes of analyzing whether the City's zoning regulations on group home uses violate the FHAA. If we are correct in our understanding that the City intends all dwelling units in its residential zones to be occupied by groups living together as "single housekeeping units," the City's Zoning Ordinance does not discriminate against handicapped persons in the provision of housing, except for the Residential. Care, General category, which is discussed below. If we are wrong, however, the City's zoning ordinance likely violates the FHAA in several respects. Based upon the forgoing, reference to the Matrix alone will not provide an accurate account of the residential uses permitted in the specific zones. This is because the definition of "family" includes the following caveat: "The term `family' shall not apply to residential care facilities for six or fewer developmentally disabled, mentally disordered, or otherwise handicapped persons." (NBMC § 20.03.030.) Although the language can be clearer, it would appear the intent was to eliminate the "family" requirement for living groups of six or fewer handicapped persons. Because abstinent drug or alcohol addicted persons are "handicapped" persons under the FHAA, six or fewer of them are permitted to live together in a dwelling even though they are not living as a single housekeeping unit. Accordingly, even thought the Matrix would appear to exclude Group Residential uses from all residential zones except the R -A zone, to the extent the Group Residential is composed of not more than six persons who, are "developmentally disabled, mentally disordered, or otherwise handicapped persons," they would be permitted in the same way as a traditional "family." Given the importance of this issue, we recommend that various provisions of the City's Zoning Ordinance be revised both to clarify this important distinction and to reflect the way the City has been interpreting its code.6 These recommendations are contained in Appendix "A" to this Memorandum. (a) The Regulation of Group Residential (No Onsite Service) Uses. We believe that with a few minor changes, the City's regulation of "Group Residential" uses complies with the requirements of the FHAA as interpreted by the Ninth Circuit. Recall that "Group Residential" is defined as "shared living quarters without separate kitchen or bathroom facilities for each room or unit. This classification includes boarding houses, dormitories, fraternities, sororities, and private residential clubs, but excludes residential hotels. "7 ( "NBMC" § 28.05.030(B).) Except as provided below, this category applies to all residential groups who: (1) do not live together as a "single housekeeping unit" and (2) offer no onsite services. The most prevalent type of recovery home will fit within this category —a sober 6 For instance, we believe the City probably has not enforced the requirement that the occupants of each dwelling unit in the multi- family zone live together as a single housekeeping unit. Rather, it is more likely that this zone is simply a multiple dwelling unit zone where groups of roommates (such as young adults, college students, etc.) live together as somewhat fungible roommates rather than single housekeeping units. For this reason, we will recommend changing the name of this zone from "multi- family residential" to "multi -unit residential." 7 These uses are distinguished from "Residential Care, Limited," and Residential Care, General" because they do not involve the provision of any services 2611066751 -0023 472254.01 a02/06/04 -9- living environment where no services are provided but the residents assist each other in their 12 -step programs through meetings and mutual support. Because the code exempts a living group of six or fewer handicapped persons from the requirement that they live together as a single housekeeping unit, a group home of six or fewer persons are currently permitted in a dwelling unit in any residential zone of the City. As such, a group home with six or fewer persons per dwelling unit is permitted as a matter of right and would therefore not have an FHAA claim. Group homes (Group Residential uses) for seven or more persons are not exempt from the single housekeeping unit requirement. Under the Matrix, such uses are prohibited from all but the R -A zone. Would such a prohibition in the City's code violate the FHAA? We think not. There are typically two types of FHAA discrimination claims raised: (1) intentional discrimination; and (2) disparate impact discrimination. The first would not likely be successful. It would be very difficult to establish a prima facie case to support an intentional discrimination claim. To do so, the plaintiff would have to prove that he or she were entitled to a permit to operate the sober living environment in one of the City's residential zones and that the permit was denied or withheld from them even though similarly situated parties were given a permit to operate their group living environments in the same zone. (See, Gamble v. Escondido, supra, 104 F.3d at 305; Sanghiv v. City of Claremont (91h Cir. 2002) 328 F.3d 532, 536.) But, with the exception of Group Homes for six or fewer, the Newport Beach Municipal Code excludes from its residential zones all groups not living as a "single housekeeping unit " The plaintiff would not be able to show that similarly situated groups (i.e., other non - single housekeeping units) were given permission to operate non - handicapped group housing in a residential zone. Moreover, if the code discriminates in the area of group living, it does so to favor handicapped groups. The only group of more than six persons not living together as a "single housekeeping unit" permitted to live together in a residential done are groups providing 24 -hour non - medical care, the so- called "Residential Care, General" category defined in NBMC § 20.05.040. But because the "Residential Care, General" category allows handicapped housing for seven or more, the discrimination would be based on the existence or non - existence of on -site service providers, not on whether the living group is or is not handicapped. It is less clear whether a Group Residential use will able to prevail on an FHAA "disparate impact" discrimination theory. "To prevail on a disparate impact case a plaintiff must establish `at least that the defendant's action has a discriminatory effect. "' (Gamble v. City of Escondido, supra, 104 F.3d at 306.) "The relevant comparison group to determine a discriminatory effect on the [handicapped] is other groups of similar size living together." (Id. at 306 -07.) For Group Residential uses involving six or fewer persons, we think no discriminatory impact claim can successfully be made. This is because the only permitted non single housekeeping groups of six or fewer permitted in the City's residential zone are handicapped living groups. Therefore, there is no discriminatory effect. The analysis is less clear for Group Residential uses involving seven or more persons. Under NBMC § 20.10.20, Residential Care, General uses (24 hour non - medical care residential facility for seven or more) are permitted in all residential zones with a conditional use permit ( "CUP "). Conversely, the code only permits Group Residential uses to occur in residential zones if they have 6 or fewer persons. As previously noted, the distinction between Group Residential 261466751 -0023 472254.01 a02/06104 -10- uses and Residential Care, General uses are that the Group Residential uses do not provide any onsite care. In our experience, "sober living environments" or "recovery homes" typically do not provide any onsite care. Rather, they are a tenant -run operation where the tenants themselves simply provide encouragement to each other to foster their own recovery by way of a 12 -step program. We are concerned that a sober living environment or recovery home type use may be able to claim that although the code does not discriminate against handicapped people generally, the disparate impact between Group Residential (i.e., sober living environment or recovery home) for seven or more persons and Residential Care, General discriminates against a category of handicapped persons: the recovering alcoholic or drug dependent person. For this reason, we recommend that this portion of the code be changed to treat Group Residential and Residential Care, General alike. (b) The Regulation of Residential Care, Limited Uses (24 -Hour Onsite Service Provided, Six or Fewer Residents). Under NBMC § 20.10.020, Residential Care, Limited uses are permitted in all residential zones. As such no discrimination claim can be made. (c) The Regulation of Residential Care, General Uses (24 -Hour Onsite Service Provided, Seven or More Residents). Provided the City amends the code in the manner proscribed below, we believe there are only minimal chances for a successful FHAA challenge by a Residential Care, General applicant. Residential Care, General is defined as "24 -hour non - medical care for seven or more persons, including wards of the juvenile court, in need of personal services, supervision, protection, or assistance essential to sustaiiiing the activities of daily living. This classification includes only those services and facilities licensed by the State of California." (NBMC § 28.050.040(R).) Residential Care, General uses are permitted in each of the City's residential zones, but only if one first obtains a CUP. Because the Residential Care, General definition so closely tracks the definition of "handicapped, "8 it would appear that this provision is aimed specifically at housing facilities for the handicapped. In Association for Advancement of the Mentally Handicapped v. City of Elizabeth (D. NJ 1994), the court found that a CUP requirement for a residence housing more than six disabled persons violated the FHAA. "An ordinance that uses discriminatory classifications is unlawful in all but rare circumstances." (Id., citing Horizon House v. Township of Upper South Hampton (E.D.. PA 1992) 804 F.Supp. 683, 693.) The court found the CUP requirement discriminatory on its face because it "imposed conditions on the establishment of community residences for the developmentally disabled housing more than six persons that are not imposed on residences housing more than six persons who are not developmentally disabled." (Id. at 621.) As a result, the court concluded that the ordinance is "facially discriminatory and will only be upheld if it serves a legitimate governmental purpose." (Id.) The city claimed that the ordinance did serve a 8 The FHAA defines "handicapped" as a person with "a physical or mental impairment which substantially limits one or more of such person's major life activities." (42 USC § 3602 (h).) 261/066751 -0023 472254.01 a02/06l04 �J legitimate governmental purpose by preserving the residential character of neighborhoods. While the court recognized that the City "has a legitimate interest in protecting the residential character of the surrounding neighborhood" (id. at 623), the court found the record to be "devoid of any evidence upon which a fact finder could reasonably conclude that community residences housing more than six developmentally disabled persons would detract from a neighborhood's residential character." (Id.) As such, the court found the city failed to demonstrate the ordinance served a legitimate governmental purpose. On its face, the City's conditional use permit requirement for Residential Care, General uses appears to suffer the same problem as the City of Elizabeth ordinance. The CUP require- ment appears directed toward "handicapped" persons. Because the Zoning Ordinance imposes conditions on the establishment of handicapped housing for more than seven persons which are not imposed on residences housing more than seven persons who are not handicapped, the ordinance discriminates on its face against handicapped persons. This shifts the burden to the City, forcing it to demonstrate the CUP requirement serves a legitimate governmental interest. We presume the legitimate governmental interest the CUP requirement serves would be the preservation of the residential character of the City's residential neighborhoods. The CUP requirement serves this interest in the following way: City Code generally prohibits from its residential zones groups of seven or more persons not living together as a single housekeeping unit. The Residential Care, General uses would not only constitute an exception to the rule, but it would constitute a high intensity exception to the rule given that it would allow seven or more transient persons per dwelling unit. Presumably, the large numbers of constant changing of residents would be the antithesis of the stability typically prevalent in residential zones. We believe that, as currently drafted, the City Code would not support this argument. The City's restrictions on Residential Care, General uses apply across all residential categories. While the rationale would likely prevail for purposes of the R -1 zone (and perhaps even for the R -1.5 and R -2 zones), it would almost certainly fail when applied to the "multi - family" residential zone. This is because there is not only a significant turnover of residential units in the typical multi- family residential zone, but a significant and relatively constant turnover of the residents which comprise the living groups within a dwelling unit in that zone. For instance, we would imagine that significant numbers of young adults live in the multi - family residential zone. Young adults frequently change roommates and, therefore, can hardly be considered to embody the stability typically associated with persons living together as a "single housekeeping unit." A court would therefore be unlikely to accept the argument that a CUP requirement for Residential Care, General uses in the multi- family residential zone furthers the City's interest in preserving the zone's "residential character" as a long term, stable residential neighborhood. Therefore, to make the City's regulations more defensible, we recommend amending the code as provided in Appendix "A ". CONCLUSION & RECOMMENDATION: Based on the foregoing, we recommend the City amend the definitions in the Zoning Ordinance in the manner provided in Appendix "A" attached. In general terms, these amendments will: (1) redefine the Multi - Family Residential Zone to the Multi-Unit Residential Zone; (2) clarify the application of the "single housekeeping unit" requirement; (3) eliminate the distinction between service providing and non - service providing handicapped group housing; (4) 261/066751 -0023 472254.01 a02/06/04 -12- clarify that handicapped group housing permitted for groups of six or fewer are permitted as a matter of right in all residential zones, that handicapped group housing for groups of seven or more is at least permitted in the Multi -Unit Residential Zone and prohibited in the others and that non - handicapped group housing is prohibited in all but the Multi -Unit zone, in which it is at best conditionally permitted. As many of these changes are merely clarifications of the existing code, we recommend the ordinance indicate that the changes are declarative of existing law where appropriate. We believe the attached changes will increase the likelihood of prevailing in an FHAA challenge to the City's residential regulatory design. The above notwithstanding, we caution that any case involving a question of whether and to what extent a group of people are living together as a "single housekeeping unit" will be factually intensive, and the facts may be difficult to obtain. In addition, this area of the law is constantly changing due to the significant quantity of judicial decision issued on the topic. The City should make sure it remains abreast of those decisions to ensure its laws remain consistent with those decisions. We hope you have found this memorandum helpful. Should you have any questions, please do not hesitate to contact us. 2611066751 -OD23 472254.01 a02/06N4 -13- ' APPENDIX "A" PROPOSED CHANGES Amend Section 20.03.030 in the following manner: (a) Existin : "Dwelling, Multifamily" means a building containing three or more dwelling units. Proposed Amendment: "Dwelling, Multi -unit' means a building containing three or more dwelling units. (b) Existing: "Dwelling, Single - family" means a building containing one dwelling unit. Proposed Amendment: "Dwelling, Single - family" means a building containing one dwelling unit for occupancy by one family. (c) Existine: "Dwelling, Two - Family" means a building containing two dwelling units. Proposed Amendment: "Dwelling, Two - Family" means a building containing two dwelling units, each of which is for occupancy by a single family. (d) Existing: "Family" means two or more persons living as a single housekeeping unit within a dwelling unit. YThe term "family" shall not apply to residential care facilities for 6 or fewer developmentally disabled, mentally disordered or otherwise handicapped persons. Proposed Amendment: "Family" means one or more persons living as a single housekeeping unit within a dwelling such that they bear the generic character of a family unit as a relatively preeminent household . The term "family" shall include Residential Care, Limited facilities for 6 or fewer developmentally disabled, mentally disordered or otherwise handicapped persons, but no other living group not living as a single housekeeping unit. It is the intent of the City that considering Residential Care Limited facilities to fall within the definition of "family" to the exclusion of all other living group which is do not live together as a single housekeeping constitutes a "reasonable accommodation" as that term is used in the Fair Housing Act Amendments (42 USC § 3604 et. seq.) 2. Amend Section 20.05.030 in the following manner: (a) Existing: "Day -Care, Limited" means non - medical care and supervision of 12 or fewer persons on a less than 24 hour basis. This classification includes nursery schools, preschools, and day care centers for children (large and small fancily day care homes) and adults. 2611066751 -0023 472254.01 ao2/06104 -14- Proposed Amendment: "Day -Care, Limited" means non - residential, non- medical care and supervision of 12 or fewer persons on a less than 24 hour basis. This classification includes, but is not limited to, nursery schools, preschools, and day care centers for children (large and small family day care homes) and adults. (b) ExistinE: "Multi- family Residential" means three or more dwelling units on a site. This classification includes mobilehome and factory built housing. Proposed Amendment: "Multi -unit Residential' means three or more dwelling units on a site. This classification includes mobilehome and factory built housing. (c) Existing: "Group Residential" means shared living quarters without separate kitchen or bathroom facilities for each room or unit. This classification includes boarding houses, dormitories, fraternities, sororities, and private residential clubs, but excludes residential hotels (see single room occupancy (SRO) residential hotels, sec. 20.05.050(EE)(4)). Proposed Amendment: "Group Residential" means shared living quarters without separate kitchen or bathroom facilities for each room or unit. This classification includes boarding houses, dormitories, fraternities, sororities, and private residential clubs, but excludes Residential Care, Limited, Residential Care, General, and residential hotels (see single room occupancy (SRO) residential hotels, sec. 20.05.050(EE)(4)). (d) Existin : Proposed Amendment: "Residential Care, Limited" means shared living quarters without separate kii'chen or bathroom facilities for each room or unit for 6 or fewer persons with physical or mental impairments which substantially limit one or more of such persons' major life activities. This classification includes but is not limited to group homes, sober living environments, recovery facilities, and establishments providing non - medical care for persons in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. (e) Existin¢: "Single - family Residential" means buildings containing one dwelling unit located on a single lot. This classification includes mobilehome and factory built housing. Proposed Amendment: "Single - family Residential" means buildings containing one dwelling unit located on a single lot for occupancy by one family. This classification includes mobilehome and factory built housing. (f) Existins: "Two - Family Residential" means buildings containing two dwelling units located on a single lot. This classification includes mobilehome and factory built housing. 2611066751 -0023 472254.01 a02ft/04 -15- Proposed Amendment: "Two- Family Residential" means buildings containing two dwelling units located on a single lot, each unit limited to occupancy by a single family. This classification includes mobilehome and factory built housing. (g) Add: "Residential Care, General " means shared living quarters without separate kitchen or bathroom facilities for each room or unit for 7 or more persons with physical or mental impairments which substantially limit one or more of such persons' major life activities. This classification includes but is not limited to group homes, sober living environments, recovery facilities, and establishments providing non - medical care for persons in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. 3. Amendments to Section 20.05.040 (a) Delete definition of "Residential Care, General ". 4. Amend Section 20.10.020 in the following manner: Existing: R -A R -1 R -1.5 R -2 MFR Additional Regulations RESIDENTIAL (A),(B),(C) Day -Care, Limited P P P P P f Group Residential P Limited P P P P Single - family Residential P P P P P (D),(E),(M) Multifamily Residential P (D) Two - Family Residential P P P (D) 261/066751 -0023 472254.01 a02/06/04 -16- Proposed Amendment: R -A R -1 R -1.5 R -2 MFR Additional Regulations RESIDENTIAL Day -Care, Limited P P P P P Group Residential — or CUP Residential Care, Limited P P P P P Residential Care. General CUP Sinl�le-- family Residential P P P P P (D),(E ),(M. ) Multi -Unit Residential P (D) Two - Family Residential — P P P (D) 4. Amend Section 20.10.010(H) in the following manner: (a) Existine: H. Provide public services and facilities to accommodate planned population densities. Specific residential districts are as follows: Residential - Agricultural (R -A) District. Provides areas for single - family residential and light farming land uses. Single - Family Residential (R -1) District. Provides areas for single - family residential land uses. Restricted Two Family Residential (R -1.5) District. Provides areas for single - family and two family residential land uses with the total gross floor area of all buildings limited to a maximum floor area ratio of 1.5 times the buildable area. Two Family Residential (R -2) District. Provide areas for single - family and two - family residential land uses. Multifamily Residential (MFR) District. Provides areas for single- family, two - family, and multiple family residential land uses. 2611066751 -0023 472254.01 a02106/04 -17- Proposed Amendment: H. Provide public services and facilities to accommodate planned population and densities. The specific residential districts and their purposes are as follows: Residential - Agricultural (R -A) District. Provides areas for single - family residential and light farming uses. Single - Family Residential (R -1) District. This is the City's most restrictive residential zoning district, established to provide for a stable, social neighborhood for single - family residential land uses by limited occupancy to single - family groups. Restricted Two - Family Residential (R -1.5) District. Like the single - family district, this district is intended to provide for a stable residential neighborhood by providing areas for single - family and two - family residential land uses with a total gross floor area of all buildings limited to a maximum floor area ratio of 1.5 times the buildable area. Occupancy in this area is limited to dwelling units occupied by one family. Two - Family Residential (R -2) District. Like the R -1 and R -1.5, this district is intended to provide for a relatively stable residential neighborhood. This district provides for a single family and two - family residential land uses within dwelling units limited to occupancy by a single family. Multi -unit Residential (MUR) District. This District is high residential intensity district which provides housing for single - family, two - family and non - family, multi -unit residential uses. . 261/066751 -0023 472254.01 a02/06/04 -18-