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Home My WebLink About10/15/2024 Item 6b, Dietrick Wilbanks, Megan Subject:RE: Reference Staff Response From: Dietrick, Christine <cdietric@slocity.org> Sent: Tuesday, October 15, 2024 1:00 PM Subject: RE: Reference Staff Response Bcc: City Council Sandy, in general the answer to your question below is primarily based on the First and Fourth Amendments to the US Constitution, as well as the broader First Amendment to the California Constitution, as interpreted by case law, which requires careful drafting of requirements that implicate the right to freedom of association, privacy in one’s home, and the right to be free from unreasonable searches and seizures. There is case law peripherally addressing the regulation of fraternities that qualifies some of these absolute rights, but it is a nuanced area of law that counsels regulatory focus on conduct, behaviors, and impacts on others, rather than on the relational or associational status of those engaged in misconduct or violations of law. More specifically, Article I, section 1 of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” It is established that the right to privacy is fundamental in nature and encompasses “our freedom to associate with the people we choose.” (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130 \[emphasis added\].) "The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, \[and\] our freedom of communion . . .” (White v. Davis (1975) 13 Cal. 3d 757, 774.) The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should be abridged only when there is a compelling public need ....'" (Id.) In the context above, local land use regulation seeking to regulate the individuals with whom someone may reside or associate in one’s own home (i.e., “government intrusion”), absent a compelling public need, have been struck down as unconstitutional. “‘The fatal flaw in attempting to maintain a stable residential neighborhood through the use of criteria based upon biological or legal relationships is that such classifications operate to prohibit a plethora of uses which pose no threat to the accomplishment of the end sought to be achieved. . . .’” (Adamson, 27 Cal. 3d at 134.) In general, local land use regulations “are much less suspect when they focus on the use than when they command inquiry into who are the users.” (Id. at 133.). For that reason, the City attempts to regulate focused on events, activities and impacts versus the status, association or relationships of those engaging in a particular activity. Imposing a land use regulation, such as a condition to a use permit, that only allows residents of a home to be present during certain hours, or could be read to prohibit the presence of a person in a private home based on the relationship of the person to the resident, could be subject to challenge on the ground that it impinges on one’s right to privacy, and by extension their “freedom to associate with the people \[they\] choose,” and is not narrowly tailored to advance a legitimate governmental interest of regulating noise and unruly conduct in residential areas, which more validly could be regulated through imposition of conditions that regulate conduct, not association. Enforcement of a condition permitting only residents of a home to be present during certain hours may also give rise to concerns related to the Fourth Amendment, which provides the right to be free from unreasonable search and seizure. In practice, the government generally does not have the right to enter a private home and demand information about its occupants or guests of residents absent probable cause and a warrant. Thus, enforcement of such a condition become practically infeasible, because it would essentially require a warrant to allow government entry into a private residence for the purpose of searching/questioning persons to discern 1 their personal and organizational associations and purpose for being present (i.e. whether having personal guests over constitutes a “meeting or event” or a protected hosting of guests in ones home. To do so, the City would either need probable cause or to get a court to issue a search/inspection warrant to allow the City to demand entry, and compel people to disclose if they live there or are a guest, and if a guest, the purpose for their presence in the home after certain hours. The better approach is simply to prohibit and enforce against conduct that disrupts a neighborhood, without need for inquiry into relationship. Christine Dietrick pronouns she/her/hers City Attorney City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E cdietrick@slocity.org T 805.781.7140 slocity.org Stay connected with the City by signing up for e-notifications The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT (805) 781-7140. Thank you. From: Sandra Rowley <macsar99@yahoo.com> Sent: Saturday, October 12, 2024 9:18 PM To: McDonald, Whitney <WMcDonal@slocity.org>; Dietrick, Christine <cdietric@slocity.org> Subject: Reference Staff Response This message is from an External Source. Use caution when deciding to open attachments, click links, or respond. Hi Whitney and Christine, I am looking for a specific citation in the California Constitution or elsewhere that supports the following comments in the Staff Report, REVIEW OF AN APPEAL OF THE PLANNING COMMISSION’S DECISION TO APPROVE A CONDITIONAL USE PERMIT TO ESTABLISH A FRATERNITY (USE-0331-2023, APPL-0365-2024), specifically as it refers to the Staff Response on pages 518 and 519 of the staff report, which state as follows: People in private residences (e.g., residents of the fraternity) are legally allowed to gather and meet with guests without government interference into their private residences, relationships, and associations, provided that the number and conduct of those residents 2 and guests conform to applicable regulations. Due to constitutional concerns with placing a condition that limits the type of people in private residences ( i.e., residents vs. nonresidents), Condition No. 14 was written to directly address noise concerns by identifying an extended range of hours between 10:00 p.m. and 9:00 a.m. for regular compliance with a lower exterior noise limit. Due to constitutional concerns regarding government interference into private residences, relationships, and associations, staff does not recommend adding or revising a condition to limit the type of people in private residences. This appeal issue is addressed through incorporation of Condition No. 14 as well as requirements and enforcement actions detailed in Chapter 9.12 (Noise Control), Chapter 9.13 (Unruly Gatherings), and Chapter 9.22 (Safety Enhancement Zones). It would also be helpful to know 1) the context in which "government interference" is used; 2) if "type" refers to race, sex, color, creed, ethnicity, or national origin rather than a general term like non-resident; and 3) if "into their private residence" includes the outside areas. The only information I have been able to find in the California Constitution that involves the right for people to assemble, was in Article 1 Declaration of Rights, Section 3a where it says "The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good." Thank you so much for your assistance! Sandy Rowley 3