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HomeMy WebLinkAbout01/05/1999, 2 - REGULATION OF GROUP HOMES AFTER AB 2244 CONT0 l Office of the City Attorney City Attorneys Department Spring Meeting League of California Cities May 4 -6, 1994 Penny Nakatsu, Assistant City Attorney, City of Hayward REGULATION OF GROUP HOMES AFTER AB 2244: MUNICIPAL LIABILITY FOR HOUSING DISCRIMINATION PURSUANT TO THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT v- P: F*' �T a -46 E TABLE OF CONTENTS I. Introduction . . . . .. . . . . . . . . . . . . . . o 1 II. Background . . . . . . . . . . . . . . . ... . . . . . 2 III. Summary of AB 2244 . . . . . . . . . . . . . . . . . . . 4 IV. Application of FEHA Amendments to Cities . . . . . ... . 5 A. Cities Are Now Exposed to Liability for Housing Discrimination . . . . . . . . . . . . . . . . . . 5 B. FEHA "Familial Status" Discrimination Is Inapplicable to Certain Senior Housing . . . . . . 6 C. Nondiscriminatory Abatement of Public Nuisances Is Not Precluded . . . . . . . . . . . . . . . . . . . 7 D. FEHA Must Be Liberally Construed . . . . . . . . . 7 E. Inconsistent State Laws Are Invalid . . . . . . . . 8 F. Conditional Use Permit and Occupancy Limitations . . . . a 10 G. Regulation of Lodging boaraing nouses ana vuicr aroun Residences . . . . . . . . . . . . . . . . . 14 H, Reasonable Accommoaarion Must ne rrovaueu a5 t-u Housing for Persons with Disabilities . . . . . . . 14 I. Discrimination on the Basis of Familial Status 17 J. FEHA Prohibited Housing Discrimination Can Be 1-%v n; ecriminatory Intent or Effect 17 K. Interest . . . . . . . . . . . . . . . . . . . . . 18 I„ FEHA Remedies . . . . . . . . . . . . . . . . . . . 19 V. Concjusion . . . . . . . . . . . . . . . . . . . . . . . 20 e r� A 44 C. ,2 -4- REGULATION OF GROUP HOMES AFTER AB 2244: MUNICIPAL LIABILITY FOR HOUSING DISCRIMINATION PURSUANT TO THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT I. Introduction This article discusses the impact of AB 2244's amendments to the California Fair Employment and Housing Act ("FEHA") on land use regulation of housing inhabited by individuals ( "group housing ") who comprise members of a FEHA protected classification, particularly persons with disabilities and groups deemed to have familial status. The Legislature's uncodified findings-indicate a major purpose of AB 2244 is to limit land use regulation of group housing which serves a FERA protected class: SEC. 18. It is the Legislature's intent to make the following findings and declarations regarding unlawful housing practices prohibited by this act: (a) That public and private land use practices, decisions, and authorizations have restricted, in residentially zoned areas, the establishment and operation of group housing, and other uses. (b) That persons with disabilities and children who are in need of specialized care and included within the definition of familial status are significantly more likely than other persons to live with unrelated persons in group housing. -. (c)' That this act covers unlawful discriminatory restrictions against group housing for these persons. (Stats. 1993, c. 1277, section 17, p. 7006.) As amended effective January 1, 1994 by AB 2244, FEHA prohibits cities from adopting or applying land use regulations in a manner which discriminates or has the effect of discriminating against any class protected by FEHA: race, color, religion, sex, marital status, national origin, ancestry, familial status and disability. Further, where a city's regulation affects housing opportunities for persons with disabilities, a city will be required to provide reasonable accommodation. If a city has adopted or enforced a land use regulation which discriminates against group housing for members of a 1 l•lil • . 1 a.- +f protected class, the city will be subject to administrative complaint proceedings before the-Fair Employment and Housing Commission and an action for injunctive relief, compensatory and4 punitive damages and attorney's fees. More significantly, a'ci'E will not be entitled to the deferential rational basis standard of review traditionally applied in land use cases if a FEHA violation is alleged. Rather, in order to avoid liability, FEHA requires a defendant city to prove it has a sufficiently compelling interest in the challenged regulation and other means with a less discriminatory impact are unavailable to serve such interest. II. Background AB 22441s FEHA amendments implement the 19.88 amendments to the federal Fair Housing Act ( "FHA") which added handicap' and familial status2 as protected classifications. Therefore, an understanding of the FHA is necessary to analyze the impact of AB 2244's amendments to FEHA. The FHA, adopted in 1968 as Title VIII of the Civil Rights Act, prohibits housing discrimination based on race, color, religion, national origin and sex. (42 U.S.C. §§ 3601 et seq.) The FHA is applicable to local zoning and other land use decisions. (See Metropolitan Housing Development Coro v Village of Arlington Heights 558 F.2d 1283 (7th Cir. 1977), cert. denied 434 U.S. 1025 (finding.a statutory obligation to refrain from local zoning policies which effectively foreclosed construction of low income housing].) The FHA also provides that any law which permits any action that would be a discriminatory housing practice under the FHA is invalid to that extent. (42 U.S.C. § 3615.1 In 1988, Congress amended the FHA to add handicap and familial status as FHA protected classifications, effective March 12, 1989 ("FHAV). (Pub.* L. 100 -430 (September 13, 1988) 102 Stat. 1619.) The legislative history of the FHAA clearly indicates an intent to prohibit local requirements which discriminate against protected groups, particularly persons with a handicap. The (Judiciary] Committee intends these provisions to prohibit not only discrimination against the primary purchaser or named lessee, but also to prohibit denials of housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates who have disabilities. These new subsections would also apply to state or local land use and health and safety laws, regulations, practices or decisions which discriminate against individuals with handicaps. While state and local governments have authority to protect safety and health, K T it. •.: -4-d) and to regulate use of land, that authority has sometimes been used to restrict the ability of individuals with handicaps to live in communities. This has been accomplished by such means as the enactment or imposition of health, safety or land -use requirements on congregate living arrangements among non - related persons with disabilities. Since these requirements are not imposed on families and groups of similar size of other unrelated people, these requirements have the effect of discriminating against persons with disabilities. (H.R. Rep. 711,. 100th Congress, 2d Sess., p. 24.) States are authorized to enact a statute providing for rights and remedies substantially similar to the FHA.in order to qualify state enforcement agencies for FHA certification. Housing discrimination complaints filed in a state whose fair housing agency has been certified by HUD must exhaust such state administrative remedies before HUD can take any action on such complaint. (42 U.S.C. § 3610 (f) .) In order to certify a state agency as an enforcement agency, the HUD Secretary must make four determinations, including a finding that the substantive rights and remedies available under state law are "substantially equivalent" to those created by the FHA .3 (42 U.S.C. § 3610(f)(3).) The California Department of Fair Employment and Housing ("DFEH") was given limited grandfather status as a FHA certified agency through September 13, 1992. On September 14, 1992, the DFEH's certification 'expired. (58 Fed.Reg. 39562 (July 23, 1993).) DFEH has not been recertified as of March 30, 19941, the date this paper was prepared. In 1992 two bills were introduced to conform California law to the FHA. One proposal, AB 531 (Polanco), would have adopted a strict scrutiny standard in housing discrimination cases where there was a disparate impact on a protected classification. AB 531 was vetoed by the Governor who signed a competing League of California Cities supported bill, SB 1234 (Calderon) , which purported to adopt the provisions of federal law by adding disability and familial status to FEHA's list of protected classifications as the California Fair Housing Act of 1992. (Stats. 1992, ch. 182, § 1.) The legislative intent of SB 12341 as described in uncodified findings, is to provide state remedies which are substantially similar to the FHAA for housing discrimination against persons with disabilities and on the basis of familial status: The Legislature hereby finds and declares that this act is necessary to protect individual rights and provide remedies for rA 11 • ft ,3 -51 alleged discriminatory housing practices are substantially similar to those rights remedies provided for in the federal Fair Housing Amendments Act of 1988 (P.L. 106- 430)." that and 0 (Stats. 1992, ch. 182, § 24.) HUD later found tha.SB 1234's amendments (Stats. 1992, ch. 182) were not substarlally equivalent to the FHA. The text of AB 531 was re .troduced b Assemblyman Polanco and, after substantial comprase, ado tey 1993 as AB 2244. (Stats. 1993, ch. 1277.) As ameed by 2 44 n FEHA now applies explicitly to public land use meed s including the exercise of planning and zoning pots, which make housing opportunities unavailable to members of %'otecic class. (Gov. Code § 12955(1).) The Legislatures also employment housing encompasse regulation the FEHA.dv -Cod tion P Ym g P Y � � Code § 12993.)° The principal elements of the FEHA aments are next summarized. III. Summary of AB 2244 The principal changes to FEHA's housing dilination prohibitions which impact cities' ability to rde group housing are as follows: 1. FEHA is now expressly applicable toal government's adoption and application of zoniniother land use regulations. (Gov. Code § 12955 (1).) 2. FEHA provides that a claim of housirriminaticn may be shown based on either discriminatory irr discriminatory effect. (Gov. Code § 12955.8.;, intent to discriminate against a protected class need nhown in order to establish a FEHA violation. 3: . Futther, cities now have a duty to asonable accommodation When adopting and applying landicies which affect housing for persons with disabilitiesl4f.- has been developed by federal case law arisi the F'8A Section 504 of the Rehabilitation Act of 197 ?nded (29 and U.S.C. § 794). (See also Gov. Code § 12955.E 4. FEHA imposes a compelling governmerest standard of proof in any case-alleging that is violate d any of FEHA's housing discrimination provism. Code § 12955.8(b).) Thus, the rational basis or rarelationship standard ordinarily applicable to judicial land use decisions does not apply to FEHA housing dion cases challenging a local land use policy or deci 4 IL 00350 i.. . M -sq 1 I 5. Any state law inconsistent with FEHA is considered to be invalid. (Gov. Code § 12955.6.) Therefore, cities cannot rely on state law provisions which are inconsistent with FEHA.. An example of state laws which may be inconsistent with FEHA are state licensing laws which allow cities to treat licensed residential facilities for more than six residents as non- residential uses. ' 6. Further, FEHA may be construed by a court as affording greater rights and remedies than are available under the FHA and other state law. (Gov. Code § 12955.6.) 7. FEHA authorizes the DFEH or the Attorney General to initiate - administrative or judicial enforcement actions against a city in any case concerning the legality of any zoning or other land use law. (Gov. Code § 12981.) Reasonable attorney's -fees, compensatory and punitive damages, including damages for emotional distress, may be awarded by a court to a prevailing plaintiff who establishes that a city has violated FEHA's prohibition against housing discrimination. These FEEA ramifications are next discussed in more detail. IV. Application. of FEHA Amendments to Cities A. Cities Are Now Exposed to Liability for Housing Discrimination FEHA now explicitly requires a governmental entity to refrain from adopting or applying land use laws, including planning and zoning regulations which have the intent or effect of discriminating against a FEHA protected class by making housing opportunities unavailable to a FEHA protected class. (Gov. Code §§ 12955 and 12955.8.) As amended, FEHA provides, in relevant part, that it is unlawful: (1j- To discriminate through public or private land use practices, decisions, and authorizations because of race, color, religion, sex, familial status, marital status, dis 'onal origin, or ancestry. iscriminatio includes, but is not limited o, c ive covenants, zoning laws, denial of use permits, and other actions authorized under the Planning and Zoning Law (Title 7 (commencing with Section 65000)), that make housing opportunities unavailable." (Gov. Code § 12955.) FEHA defines "familial status" as one or more individuals 5 -OQO351. .� -5L under the age of 18 years living with a parent or other legal custodian. (Gov. Code § 12955.2.) Thus, care givers of minor children, such as operators of residential facilities are. also protected by the definition of "familial- status. �� - "Disability "., a FEHA term which is synonymous with the FHA term "handicap," is defined as having a physical or mental impairment which substantially limits one or more major life activities. (Gov. Code § 12955.3.) Disability also includes a perception of being regarded as having an impairment. (Ibid.). Current illegal use or addiction to a controlled substance does not constitute a disability for FEHA purposes or a handicap pursuant to the FHA. (Gov. Code § 12955.3 and 42 U.S.C. § 3602(h).1 However, recovering alcoholics and substance abusers who are.currently abstinent are generally covered by FHA and FEHA protections if they are perceived as suffering from a mental or physical impairment. (Ibid.) Further, the FEHA definition of "disability" is virtually identical to the FHAA definition of "handicap" and the legislative history of the FHAA clearly indicates an intent to protect recovering substance abusers.5 Both the FHA and FEHA also require cities to provide reasonable accommodation as to housing for persons with disabilities; failure to provide reasonable accommodation may be sufficient to support a claim that the FHA's housing discrimination prohibition has been violated. Reasonable accommodation requirements are discussed, infra, at section I. B. FEHA " it FEHA's prohibition of familial status discrimination does not apply to a senior housing development or mobilehome park 'which meets the definition of "housing for older persons." (Govt Code § 12955.9.) "Housing for older persons" is defined as any of the following: (1) Housing provided under any state or federal program that the Secretary of Housing and Urban Development determines is specifically designed and operated to assist elderly persons, as defined in the state or federal program. (2) Housing that meets the standards for senior housing in Sections 51.2, 51.3, and 51.4 of the Civil Code, except to the extent that those standards violate the prohibition of familial status discrimination in the federal Fair Housing Amendments Act of 1988 (P.L. 100 -430) and implementing regulations. 6 000352 z -sa _ 1 (3) Mobilehome parks that meet the standards for "housing for older persons" as defined in the federal Fair Housing ° Amendments Act of 1988 and implementing regulations. (Gov. Code § 12955.9 (b).) A city may therefore impose differential land use requirements on "housing for older persons" as long as such requirements do not conflict with rights held by another FEHA protected class, such as persons with disabilities, and meet the traditional rational basis test for review of police power regulations. C. Nondiscriminatory Abatement of Public Nuisances Is Not Precluded Government Code section 12995 provides that cities may abate nuisances as long as such enforcement actions are not carried.out in a discriminatory manner: (b) Nothing contained in this part relating to discrimination in housing shall affect the nondiscriminatory enforcement of state and local public nuisance laws, provided that those laws do not otherwise conflict with the provisions of this part. (Gov. Code § 12995.) Under this provision cities are able to continue to abate substandard buildings and other nuisances, such as illegal use of a building for controlled substance offenses pursuant to the Drug Nuisance Abatement Act. (See Health and Safety Code § 11571.) Current illegal use of any controlled substance is also excluded from the definition of a disability. (Gov. Code § 12955.3.) D. FEHA Must Be Liberally Construed FEHA states that it shall be liberally interpreted and may be construed as providing for more rights to FEHA protected classifications than are currently available under other state anti- discrimination laws which provide less protection to a protected class. (Gov. Code § 12993.) As amended, Government Code section 12993 provides in relevant part as follows: (a) The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, 7 .A, QW353 'a -s4 physical disability, mental disability, medical condition, marital status, sex, or age, unless those provisions provide less protection to the enumerated classes of - persons covered under this part. FEHA now also states that it is intended to afford protection at least equivalent to the federal Fair Housing Amendments Act of 1988 and implementing regulations promulgated by HUD, which are aimed at eliminating housing discrimination on the basis of handicap and familial status; Government Code section 12955.6 provides, in relevant part, as follows: Nothing in this part shall be construed to afford to the classes protected under this part, fewer rights or remedies than the federal Fair Housing Amendments Act of 1988 (P.L. 100 -43) and its implementing regulations (24 C.F.R. 100.1 et seg.), or state law relating to fair employment and housing as it existed prior to the effective date of this section. Any state law that shall to that extent be invalid This part may be construed'to afford greater rights and remedies to an aggrieved person than those afforded by federal law and other state laws. (Gov. Code § 12955.6. Underlining emphasis indicates language added by adoption of AB 2244.) Substantial equivalence of California law to the FHA is one of the minimum requirements necessary to enable HUD to certify California as an FHA enforcement agency. However, AB 2244 goes further by adding language authorizing courts to construe FEHA as imposing greater rights and remedies than are available under current federal and state law. (Ibid.) Thus, reliance on existing state law and federal law, including HUD regulations and federal decisions construing the 1988 FHA amendments extending housing discrimination protection to persons with disabilities and on the. basis of familial status, may not be sufficient to insulate a city against FEHA liability since courts are invited to construe FEHA as imposing more stringent requirements than are available under existing law. E. Inconsistent State Laws Are Invalid Further, cities cannot insulate themselves from liability by relying on other provisions of state law, for Government Code section 12955.6 declares that any state law which purports to require or permit any action that would be unlawful pursuant to FEHA is now invalid. However, AB 2244 does not specifically 8 QOU3f - z -9's identify, repeal, or amend any other provision of state law which may now be inconsistent with FEHA. There are a number of statutes, which include but are not limited to state licensing statutes regulating residential care facilities, which may now be inconsistent with FEHA. These include statutes which allow cities to treat a licensed residential care facility with more than six residents as a non- residential use.. Many cities have relied on such licensing statutes as the basis for imposition of conditional use permit requirements on group housing facilities serving more than six disabled persons and dependent children. Such reliance may no longer be justified in view of Government Code section 12955.6. Similarly,. the separation requirements for group homes mentioned in state law and any other requirement which treats a group home in a manner different from a single family use may no longer be valid. For instance, Health and Safety Code section 1520.5 currently allows cities to request denial of a license for a residential care facility (other than a foster family home and residential care facility for the elderly) on the grounds that overconcentration,of such 'residential care facilities impairs the integrity of residential facilities. Overconcentration is defined as a residential facility which will be located within 300 feet of another facility. There are a number of FHA cases which have found separation statutes to be facially invalid and also found a local government's refusal to grant variances or exceptions to separation requirements to be an FHA violation. In U.S. v. Village of Marshall. Wis. (W.D.Wis. 1991) 787 F.Supp. 872, the court held that a Wisconsin statute establishing a 2,500 foot spacing requirement was invalid and a village was found to have violated the FHA because its refusal to grant an exception to such spacing restriction constituted a failure to make reasonable accommodation. Similarly, in Horizon House V. Township of Upper Southampton (- .D.Pa. 1992) 804 F.Supp. 683, 693 -695, the court held that a township ordinance imposing a 1,000 foot spacing requirement for group homes discriminated against people with handicaps and was facially invalid. Further, the court held, based on the evidence considered in that case that the interest in preventing overconcentration in order to promote integration into community life was not adequate justification for the separation requirement. The court's decision was based in part on Maryland's recent repeal of a 1,000 foot distance requirement after the Maryland Attorney General advised the Maryland legislature that such rule was illegal under the FHA. (Id. 804 F.Supp. 683, at 694, citing 74 opinions of the Attorney General of Maryland (Op. No. 89- 026) .) The court also noted that the Attorneys General of the states of Delaware, Kansas and North Carolina have ruled that their respective 5,000 foot, 1,000 foot and 1/2 mile separation rules were invalid under the FHAA. (Id. 9 . 1 d -sb 804 F.Supp. 683, at 694, fn. 4.) An argument may be available that California's 300 foot..rule:_.__ is substantially less onerous than the rules which have been found to be invalid in other jurisdictions. However, if challenged in court, the state or a defendant city choosing to rely on the 300 foot rule will be required to prove that such rule is not only necessary to serve a compelling state interest but that there are no less onerous means available. (Gov. Code § 12955.8.) Further, denial of an application to' locate a facility within 300 feet of an existing licensed facility may be a violation of the duty to provide reasonable accommodation. (See e.g. U.S. V. Village of Marshall Wis. (W.D.Wis. 1991) 787 F.Supp. 872,_879.) F. Conditional Use Permit and-Occupancy Limitations on group Homes Should Be Reevaluated Can a city still impose conditional use permit and other zoning limitations pursuant to state law provisions which allow cities to treat state licensed community care and other types of licensed facilities for persons with disabilities as a non- residential use if the facility serves more than six occupants ?6 State law allows virtually all licensed facilities serving more than six residents to be treated as a group living arrangement rather than a single residential use. These facilities include licensed residential care facilities for persons with a chronic life - threatening illness (H &S Code § 1568.0831(a)), pediatric day health and respite care facilities (H &S Code § 1760.2), facilities servicing mentally disordered or mentally handicapped (H &S Code § 5116), facilities serving dependent and neglected children (W &I § 5115), alcoholism or drug abuse recovery or treatment facilities (H &S Code § 11834.23). Many cities currently require conditional use permits for residential facilities which serve more than six residents. Thus, conditional use permit requirements can currently imposed on facilities such as large family day care homes,' and other facilities serving more than six residents, such as community care facilities,8 residential care facilities for the elderly,9 and other licensed residential care facilities. These use permit requirements may no longer be valid or enforceable, even if ostensibly allowed or authorized by other provisions of state law in light of AB 2244's amendments to FEHA, and case law construing the FHA. Rather, a conditional use permit probably cannot required of such residential care facilities unless a use permit is also required for a traditional single family use or a single family dwelling. There is currently no explicit requirement that group homes for wards of the juvenile court be treated as a residential use. However, there is a strong statutory policy which encourages the 10 000356 _9 -.r% % . 1 removal of zoning restrictions which "unreasonably impair the ability of a county" to serve the needs of juvenile court wards. (H &S Code § 1567.1.) There is also a strong statutory policy in favor of the placement of juvenile court wards in the county of the ward's residence. (H &S Code § 1567.2.) Moreover, where such facilities are permitted in residential zones, current law indicates that. facilities serving six or fewer persons shall not be subject to any business license taxes, use permit fees or any other fees or requirements which are not applicable to single family dwellings (H &S Code § 1567.8.) An imposition of a conditional -use permit requirement on these types of facilities may also be invalid under the FEHA. The- FHA-states that it does not preclude ". . . any reasonable local, state, or federal restriction regarding the maximum number of occupants permitted to occupy a dwelling." (42 U.S.C. § 3607(b).) The legislative history of this provision indicates that Congress intended to give local governments reasonable latitude in imposing occupancy restrictions. These provisions are not intended to limit the applicability of any reasonable local, State, or Federal restrictions on the maximum number of occupants permitted to occupy a dwelling unit. A number of jurisdictions limit the number of occupants per unit based on a minimum number of square feet in the unit or the sleeping areas of the unit. Reasonable limitations by governments would be allowed to continue, as long as they were applied to all occupants, and did not operate to discriminate on the basis of race, color, sex, national origin, handicap or familial status. (H.R. Rep. Wo. 7111 100th Cong. 2d Sess., p. 31 (June 17, 1988).) This allowance of maximum occupancy restrictions has not been explicitly adopted in FEHA. However, FHA decisions are relevant because the Legislature has explicitly found that FEHA must be construed as affording at least the same rights as the FHAA. (Gov. Code § 12955.6.) Applicable FHA cases are next discussed. In some cases, it has been argued that the FHA's allowance of maximum occupancy restrictions applies only to a ceiling on the maximum number of persons per square foot of dwelling.lo This argument was rejected in Elliott v. City of Athens, GA. (11th Cir. 1992) 960 F.2d 975, cert. denied, 113 S.Ct. 376 (1992) where the court sustained a "rule of four" ordinance which limited single family use to no more than four unrelated persons, relying in part on Doe v. City of Butler, Pa (3d Cir. 1989) 892 F.2d 315 (upholding a "rule of six" as a valid occupancy restriction]. 11 111 A -59 On March 14, 1994, the Ninth Circuit issued an opinion in A^-F ri I"i.n�Ma.. f.1 _ _L! __i_ ...�i c a. Gl . .3 , 94 Daily .Journal D.A.R. 3308 (9th Cir. 1994).__ rejecting the Eleventh Circuit's Elliott decision in a case - construing the City of Edmonds' zoning ordinance which defined a family as a group•of no more than five unrelated persons.'The plaintiff, Oxford House, Inc., sponsors self - supporting, democratically governed residences for recovering alcoholics and drug addicts located around the country. Oxford House argued that it must. have six or more residents in each facility in order to ensure financial self- sufficiency, provide a supportive atmosphere for successful recovery and comply with federal requirements for the receipt of state start -up loans. (42 U.S.C. § 300x -25.)- -The City of Edmonds issued criminal citations because Oxford House's facility violated Edmonds'. "rule of five" and therefore could not be located in a single family zone. The Ninth Circuit found that Edmonds' "rule of five" ordinance did not. :qualify as an occupancy restriction. Instead, the court found that: The legislative history and purposes of the FHAA demonstrate that Congress intended city zoning policies to reasonably accommodate handicapped persons. This can require something more than the enactment of minimally constitutional and facially neutral zoning ordinances. Accordingly, we conclude that Edmonds' single - family restriction is not exempted. Section 3607(b)(i)•only exempts occupancy restrictions that apply to all occupants, whether related or not. (City of Edmonds v Washincton State Building Code Council et a (9th Cir. 1994) F.3d , 94 Daily Journal D.A.R. 3308, 3311 (March 15, 1994).) The court then remanded the case to the district court to 4etermine whether the City of Edmonds had satisfied. its duty to provide reasonable accommodation." The Ninth Circuit's rejection of the "rule of five" reviewed in the City of Edmonds case is also consistent with California law. Zoning rules which discriminate between traditional families composed of individuals related by blood or marriage and single housekeeping groups composed of unrelated individuals by imposing occupancy limits on the latter have been constitutionally defective in California as a violation of the California Constitution's privacy clause since city of Santa Barbara v. Adamson (1980) 27 Cal.3d 123. The restriction found invalid in Adamson was a zoning provision which required a group composed of unrelated individuals composed of more than five persons to seek a use permit as a boarding house while the definition of a traditional family was not subject to numerical limitations. The court held that Santa Barbara's "rule of five" 12 000358 ,- 59 violated the California Constitution's explicit right of privacy since the residential character of single family districts could be promoted by less restrictive methods. Thus, the Adamson decision already requires cities to treat a housekeeping group composed of unrelated individuals in the same fashion as a traditional family. However, it appears that regulations intended to protect the health and safety of residents of a group home may be imposed as long as such requirements are imposed in a non - discriminatory manner, or, . alternatively are necessary to serve a. compelling governmental interest and there are no other less onerous alternatives available and such requirements do not render it economically prohibitive to operate a group home for persons with disabilities. (See 61 Ops.Atty.Gen. 490 (1978) [no use permit or other conditions may be imposed on the types of group homes regulated by H &S Code § 5116 which are not required of single family residences unless local officials can show that the extra conditions are necessary for the health and welfare of the residents].) ro � In Bangerter v. Oren City Corp._ (D. Utah 1992) 797 F.Supp. (hour 18, the court upheld the validity of a Utah statute requiring 24 �G supervision of residents of a group home for the mentally etarded on the grounds that such requirement was rationally related to a legitimate governmental purpose and did not violate the residents' FHA rights. However, it is noted that Government Code section. 12955.6 provides in pertinent part that the FEHA a "may be construed to afford greater rights and remedies to an aggrieved person than those afforded by federal law." Thus, a• California court is free to reach a different decision if the court finds that a use permit condition requiring 24 hour supervision does not withstand scrutiny under FEHA's compelling 'State interest standard. (Gov. Code § 12955.8(b).) The Sixth Circuit found facially invalid a zoning ordinance which required. extensive safety features to be included in a single family home housing developmentally disabled persons and found that such ordinance was facially invalid and violated the FHA. (Marbrunak Inc. v. City of Stow, Ohio (6th Cir. 1992) 974 F.2d 43.) These locally required safety features were far more rigorous than those imposed by the state and were only applied to single - family dwellings serving the developmentally disabled. The ordinance was found defective because it was not tailored to the specific type of disabilities in plaintiff's homes. The net effect of the ordinance's requirements was to impose an expense which the court considered to be unduly onerous which effectively limited the ability of handicapped individuals to live in the residence of their choice. The Sixth Circuit also held that the availability of a variance did not suffice to meet the city's duty to provide reasonable accommodations because the ordinance was facially invalid. (Id. 974 F.2d 43, 48.) 13 000359 a. -6o Thus, the FHA cases discussed above and Government Code section 12955.8's compelling interest standard indicate that imposition of special safety requirements and use permit - ° requirements (e.g. 24 hour supervision or staffing ratios) maybe" valid only if they are clearly necessary to meet a demonstrated public safety need, are appropriate to the particular facility in question, no less onerous alternatives are available and do not result in making it economically infeasible for a residential facility to operate. In a related vein, cities may also continue to abate housing code and other violations of local law which result in creation of a public nuisance unless such enforcement proceedings discriminate- against a FEHA protected classification. (Gov. Code § 12995.) G. Can a city continue to apply conditional use permit and other differential zoning requirements for other types of group homes which do not serve persons with disabilities or persons possessing familial status, such as lodging, boarding and rooming houses? AB 2244 contains no language which restricts cities from continuing to regulate group housing which does not exclusively serve a FEHA protected classification. Therefore, one could argue that FEHA does not prevent cities from continuing to apply residential density limitations or otherwise regulating boarding houses and similar group homes which do not serve a FEHA protected classification. However, as a practical matter, it may be difficult to draft or administer such regulations because of possible impact on unlicensed facilities which serve persons with disabilities and those considered to be protected by the familial status provisions of FEHA. H. Reasonable Accommodation Must Be Provided as to Housing for Persons with Disabilities Nothing in FEHA explicitly mentions any duty to provide reasonable accommodation to persons with disabilities. Reasonable accommodation is a concept which was developed by the courts to implement Section 504 of the Rehabilitation Act of 1973 (42 U.S.C. § 794). It has also been adopted by the FHAA. (See, e.g. U.S. V. Village of Marshall Wis. (W.D.Wis. 1991) 787 F.Supp. 872, 879.) The FHA duty to provide reasonable accommodation is applicable to FEHA because Government Code section 12955.6 requires FEHA to be construed as providing at least the same rights and remedies as the FHAA, the 1988 amendments to the FHA. The FHAA impose an obligation to refrain from discriminating against persons suffering from a physical or mental disability and a duty to make reasonable accommodation to help persons with disabilities enter the mainstream of community 14 _1 000360 a - (Oj -1 life. (42 U.S.C. § 3604 (f) (3).) The FHAA also provides that "discrimination" includes: (A) A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises (B) a refusal to make reasonable accommodations in rules, policies,.practices, services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling. (Ibid.) 12 HUD regulations similarly define the duty to afford reasonable accommodation as follows: (a) It shall be unlawful for any person. to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity, to use and enjoy a dwelling unit, including public and common use areas. (24 C.F.R. Part 100.204(a).) Generally, an accommodation is deemed to be reasonable under the FHA: "if it does not cause any undue hardship or fiscal or administrative burdens on the municipality, or does not undermine the basic purpose that the zoning ordinance seeks to achieve." (D.N.J. 1991) 769 F.Supp. 1329, 1344 -45 and Oxford House. Inc. v. Township of Cherry Hill (D N.J. 1992) 799 F.Supp. 450, 463 -66.) An accommodation is not reasonable if it would require a fundamental alteration in the nature of a governmental agency's program or would impose undue financial or administrative burdens on the defendant. (Southeastern Community College v. Davis (1979) 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980.) However, some FHA cases have construed the reasonable accommodation obligation in a manner which imposes an affirmative duty on a governmental agency to tailor land use requirements to the specific characteristics of persons with disabilities persons who are affected by a challenged local regulation. In U.S. v. City of Philadelphia..Pa. (E.D.Pa. 1993) 838 F.Supp. 223, the court held that the City of Philadelphia violated the FHA by 15 000361 .2-62- refusing to allow substitution of a side yard in lieu of a zoning requirement for a rear yard requested by the operator of a home for persons who were mentally ill or recovering substance _ ° abusers. The court held that allowing the deletion of the rear yard had no financial or administrative burden on the City of Philadelphia, and rejected the city's argument that enforcement of the rear yard requirement was necessary to secure zoning uniformity and that the rear yard requirement was not discriminatory because it was applied to all residential uses. The court concluded there need be no "causal nexus" between the challenged zoning requirement of a rear yard and the handicaps of the prospective residents in order to establish a FHA violation. (838 F.Supp. at 229.) The court also held that the city's interest -in insuring adequate recreation room for residents and firefighter access could be adequately met by substitution of a side yard. (838 F.Supp. at 228.) The Sixth Circuit required a municipal defendant to consider the individual needs of different classes of disabilities in. considering safety requirements for group homes. In Marbrunak. Inc. v. City of Stow Ohio (6th Cir. 1992) 974 F.2d 43, the court found that the City of stow's safety requirements for boarding houses violated the FHA rights of developmentally disabled persons. These safety requirements, which were not applied to single family homes, included provision of a sprinkler system with alarms, fire retardant wall and floor coverings, push bars on all doors, fire extinguishers every thirty feet and smoke alarms. The plaintiff, a nonprofit organization which planned to operate a group home for persons with disabilities residents, chose to file suit rather than seeking a variance. The decision does not address whether exhaustion of administrative remedies was required to establish ripeness because the issue of exhaustion was not briefed in the district court. (974 F.2d 43, 46013 The Sixth Circuit then affirmed the district court's FHA judgment in favor of the plaintiff because the City of Stow's ordinance made no attempt to "individualize its requirements to the needs or abilities of particular kinds of developmental disabilities." (974 F.2d 43, 47.) In the court's words: "[T]his ordinance no attempt at individualizing its requirements to the needs or abilities of particular kinds of developmental disabilities. The ordinance requires installation of protective safety devices in a residential facility for persons with developmental disabilities attributable to mental retardation, cerebral palsy, epilepsy, or autism. The safety measures include nearly every safety requirement that one might think of as desirable to protect persons handicapped by any disability -- mental or physical; and all the requirements apply 16 000362 A -103 to all housing for developmentally disabled persons, regardless of the type of mental _ condition that causes their disabilities or of the ways in which the disabilities manifest themselves." (Id. 974 F.2d 43, 47.) The court then held that the city had an obligation to revise its requirements to meet the specific needs of the plaintiff's disabilities in order to pass FHA muster. The court also held that the availability of a variance procedure was not a sufficient substitute since the city had an affirmative obligation to accommodate the needs of the plaintiff. (974 F.2d 43, 48.) I. Discrimination on the Basis of Familial Status Some developers may now argue that a denial of General Plan amendments, zone change applications to upgrade allowable residential density and denial of conditional use permits for multi - family housing violates the FHA and FEHA prohibitions on discrimination due to familial status. A failure to plan or zone sufficient land for multi - family development can now be alleged to violate FEHA's prohibition of housing discrimination on the basis of familial status. Such claim will, like other FEHA housing discrimination claims, be subject to a compelling governmental interest standard of review if the plaintiff is able to make out a prima face case of discrimination on the basis of familial status. (Government Code section 12955.8.) In such an instance, a city would be required to prove that its policy is necessary to achieve a compelling governmental interest which outweighs the discriminatory effect on persons protected by FEHA's familial status provisions.16 J. FEHA Prohibited Heuei net n; cr±ri m; nat i nn nm„ ne Government Code section 12955.8 is a new provision which governs proof of a housing discrimination claim. A FEHA housing discrimination violation may be demonstrated by either discriminatory intent or discriminatory effect. The standard for proof of discriminatory intent provides that mere consideration of a FEHA protected classification as a factor in a land use decision may be sufficient to establish a FEHA violation even if other motivations are present: For purposes of this article, in connection with unlawful practices: (a) Proof of an intentional violation of this article includes, but is not limited to, an act or failure to act that is otherwise covered by this part, that 17 r .I a- t9 demonstrates an intent to discriminate in any manner in violation of this part. A person intends to discriminate if race, color.. _ religion, sex, familial status, marital - status, disability, national origin, or ancestry is a motivatine fantn,- 4r practice. An intent to discriminate may be established by direct or circumstantial evidence. . . . (Gov. Code § 12955.8 (a).) In addition, city FERA housing discrimination. liability may also be based solely on proof of discriminatory effect. (Gov. Code § 12955.8 (b).) K. A Findi nrr of v wa If a zoning requirement is shown to have a disparate impact on a protected classification, the city whose action is challenged will be required to prove that it has a compelling governmental interest which cannot be served by a method with less onerous impact on a member of a protected class: (b) Proof of a violation causing a discriminatory effect is shown if an act or failure to act that is otherwise covered by this part, and that has the effect, regardless of intent, of unlawfully discriminating on the basis of race, color, religion, sex, familial status, marital status, disability, national origin or ancestry. . . . In cases that An ,,,,+ serve. (1) Any determination of a violation pursuant to this subdivision shall consider whether or not there are feasible alternatives that would equally well or better accomplish the purpose advanced with a less discriminatory effect. 18 f•f1 • Z - L.S' (Gov. Code § 12955.8 (b) . Underlining emphasis added.) A court is required to apply FEHA's more stringent standard of review, similar to the compelling state interest standard used in -• - constitutional challenges involving constitutionally protected groups, i.e. race, national origin and religion, and fundamental interests. (Ibid.) FEHA's compelling governmental interest standard applies to all FEHA cases alleging housing discrimination, including discrimination on the basis of sex, familial status, marital status and disability. This compelling governmental interest means that courts are now required to conduct an independent review of a city's land use policies and actions. Therefore, a court may not utilize the reasonable relationship test ordinarily applicable to review of police power regulations. which requires a court to sustain a city's adoption or application of land use regulation if reasonable minds could differ on the reasonableness of the city's action.'s Federal court decisions construing FHA discrimination against persons with disabilities have tended to apply both the reasonable relationship test and more stringent standards of review with varying results.16 FHA cases utilizing a reasonable relationship test cannot be relied upon in California cases alleging a FEHA violation. As a result of AB 2244, California courts will be able to conduct an independent review of the city's actions in a FEHA case and may find a FEHA violation if a city cannot show that it has both a compelling governmental interest and less onerous means are unavailable to carry out such governmental interest. Further, where discrimination on the basis of mental or physical disability is alleged, a court will also be required to consider whether the city has satisfied its duty to make reasonable accommodation to such protected class. L. FEHA Remedies FEHA provides for an administrative complaint process and judicial remedies for any claim of housing discrimination. if attempts to conciliate are not successful, the Department of Fair Employment and Housing ( "DFEH") may file an accusation or the Attorney General is required to file a civil action on any complaint alleging housing discrimination based on a local land use law. (Gov. Code § 12981(b).) An accusation may include a prayer for any of the following forms of relief: actual damages and administrative fines of up.to $50,000, including damages for emotional distress. (Gov. Code § 12965.) Damages for emotional distress or other intangible injuries may be recovered in a civil action if the accusation includes a prayer for damages. (Gov. Code §§ 12965 and 12981.) If DFEH does not issue an accusation within 150 days after the filing of a complaint or determines not to issue an accusation, the complainant is entitled to obtain a right -to -sue letter. Further, if an administrative complaint filed with DFEH alleges the illegality of any zoning or land use 19 law, DFEH or the Attorney General may pursue injunctive relief, compensatory and punitive damages for emotional distress and attorney's 12981, § 12989.) an action for damages, including fees. (.Gov.. Code § If an accusation is issued pursuant to Government Code § 12981, either the complainant, any other aggrieved person or the respondent has a unilateral right to have the claim adjudicated in a civil action pursuant to Government Code section 12989. If such election is filed by any person, DFEH or the-Attorney General must represent the complaining party. (Ibid.) The court may award the complainant actual and punitive damages, including damages for any emotional distress prayed for in the accusation, and any injunctive relief which the court deems necessary to terminate or prevent repetition of an unlawful practice. (Gov. Code § 12989.2.) The Commission's orders may be appealed to Superior Court. Once the time for judicial review has passed, the court is required to issue an order enforcing the Commission's order. (Id. Gov. Code § 12981(f).) Any enforcement action taken by the court is nonatiuealable. (Ibid.) 17 Government Code section 12955.8 provides that proof of a violation may be shown either by evidence of intent to discriminate or by evidence that the challenged regulation has a disparate impact on members of a protected classification. Thus, all cities are now subject to liability for adopting or enforcing any land use regulation which has a disparate impact on members of a protected classification than on non - protected classification. V. Conclusion AB 2244's amendments to FEHA impose significant obligations on all cities to refrain from using their land use authority in a manner which has the intent or effect of detrimentally affecting a FEHA protected classification. It is anticipated that FEHA will have a major impact on local regulation of group homes and result in increased scrutiny by advocacy groups of a city's- implementation of its housing element and zoning rules which impact group homes. Cities will no longer be able to shield themselves by relying on state law provisions which enable cities to regulate licensed group homes with more than six persons as non - residential uses. The courts are required to construe FEHA Provisions liberally and may impose more stringent requirements than are currently imposed by other state laws and the FHA. Further, if a prima facie case of FEHA housing discrimination is established, courts will be required to apply'a compelling governmental interest standard of review to a city action. Liability for an FHA violation could result in an award of compensation and punitive damages, injunctive relief and an award of attorney's fees. 20 {f1 . - 1 a -67 ENDNOTES 1. "Handicap," as used in the FHA is synonymous with "disability," -as used in FEHA. Both terms apply to mental and physical impairments as well as the perception of having such an impairment and exclude any current, illegal use or addiction to a controlled substance. The FRA's.definition of "handicap" is as follows: (h) "Handicap" means, with respect to a person -- (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance as defined in section 802 of Title 21. (42 U.S.C.§ 3602(h).) The FEHA definition of "disability" is as follows: For purposes of this part, "disability" includes, but is not limited to, the following: .(a) A physical or mental impairment that substantially limits one or more of -a person's major life activities. (b) A record of having, or being perceived as having, a physical or mental impairment, but not including current illegal use of, or addiction to, a controlled substance (as defined by Section 102 of the federal Controlled Substance Act, 21 U.S.C. Sec. 802.) (Gov. Code § 12955.3.). 21 { �a -ba 2. "Familial status" is defined in a similar manner by the FHA and the FEHA. The FHA defines "familial status as follows: Y "Familial individuals (who status" hohavenot sattained the oage oof 18 years) being domiciled with -- (1) a parent or another person having legal custody of such individual or.individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years. (42 U.S.C. § 3602(k).) FEHA defines "familial status'l somewhat more broadly as also applying to someone who has been given care and custody of a minor under 18 years of age by a state or local agency. The FEHA definition is as follows: For purposes of this part, "familial status" means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (Gov. Code § 12955.2) 22 I :f;I . : _ , Iz-ti 9. _ 1 3. The FHA standards for certification are as follows: —' (3) (A) The Secretary may certify an agency under this subsection only if the Secretary determines that- (i) the substantive rights protected by such agency in the jurisdiction with respect to which certification is to be made; (ii) the procedures followed by such agency; (iii) the remedies available to such agency; and _ (iv) the availability of judicial review of such agency's action; are substantially equivalent to those created by and under [the FHA]. (B) Before making such certification, the Secretary shall take into account the current practices and past performance, if any of such agency. (42 U.S.C. § 3610(f)(3).) 4. The declaration of preemption is as follows: (c) While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state, nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code. (Govt. Code § 12993 (c).) 5. The House Judiciary Committee's report on the definition of handicap makes it clear that individuals which a past history or drug use or'addiction may be protected if they otherwise come within the definition of handicap. The definition adopted by the [Judiciary] Committee makes it clear that current illegal users of or addicts to controlled substances, as defined by the Controlled Substances Act [footnote omitted], are not considered to be handicapped persons under the Fair Housing Act. This amendment is intended to exclude 23 Oflt '2 -70 6. current abusers and current addicts of illegal drugs from protection under this Act. The definition of handicap is not intended to 0 be used to condone or protect illegal - activity. This exclusion does not eliminate protection for individuals who take drugs defined in the Controlled Substances Act.for a medical condition under the care of, or by prescription from, a physician. Use of a medically prescribed drug clearly does not constitute illegal use of a controlled substance. Similarly, individuals who have a record of drug use or addition but who do not currently use illegal drugs would continue to be protected if they fell under the definition of handicap. The Committee does not intend to exclude individuals who have recovered from an addiction or a re participating in a treatment program or a self -help group such as Narcotics Anonymous. Just like any other person with a disability, such as cancer or tuberculosis, former drug - dependent persons do not pose a threat to a dwelling or its inhabitants simply on the basis of status. Depriving such individuals of housing, or evicting them, would constitute irrational discrimination that may seriously jeopardize.their continued recovery. Individuals who have been perceived as being a drug user or an addict are covered under the definition of handicap if they can demonstrate that they are being regarded as having an impairment and that they are not currently using an illegal drug. (H.R. Rep. No. 711, 100th Cong. 2d Sess., at p. 22 (1988).) These California statutes are discussed in a previous League of California Cities City Attorneys Department papers- authored by Joan R. Thomas B. Ruby, and authored by Hadden itions on Zoning Powers, May 1993, Gallo, Brian Doyle, Edmundo J. Moran and State and Federal Preemtition of Local .nd Other Land Use Controls, May 1991, .oth and Vivian Lillv. 24 1.1 1 ! Z -11 7. Small day care homes serving up to 6 children are deemed to be residential uses of property for zoning purposes. (H &S Code § 1596.45.) However, large child day care homes; _ .. defined as serving 7 -12 children may currently be required to obtain a local use permit. (H &S Code § 1597.46.) 8. Community care facilities are regulated by Health and Safety Code sections 1500 et seq., and are defined as including facilities which provide community care for the mentally ill, developmentally and physically disabled and children and adults who require care by a state licensed facility. (H &S § 1596.45.) Current state law prohibits cities from imposing conditional use permit requirements on a community care facility serving six or fewer persons if a conditional use permit is not required for a traditional family. (H &S Code § 1566.3.) 9. A residential care facility for the elderly serving six or fewer persons must be considered a residential use of property. (H &S Code § 1569.85.) 10. For instance, the Uniform Housing Code, 1988 edition, requires a dwelling unit to have at least one room with not less than 120 square feet of floor area and requires the minimum floor area to be "increased at the rate of 50 square feet for each occupant in excess of two." (Uniform Housing Code, 1988 edition, Section 503(b).) 11. Other decisions which have also rejected similar zoning restrictions as a violation of the FHAA are Oxford House. Inc. v. Town of Babylon (E.D.N.Y. 1993) 819 F.Supp. 1179 [issuing a permanent injunction pursuant to the FHA to prevent the.City from taking any further steps to evict residents-of a group home for recovering.alcoholics and drug addicts because the residents were neither a natural family nor the functional equivalent of a natural family and . because -the plaintiff's residents did not maintain a "stable non - transient existence "], Oxford House. Inc. v. City of Virginia Beach. Va. (E.D. Va. 1993) 825 F.Supp. 1251, 1257- 1259 [holding that the City's "rule of four" was a violation of the FHA], Oxford House Inc v Township of Cherry Hill (D.N.J. 1992) 799 F.Supp. 450, [town enjoined from enforcing a "rule of six" and a permanency and stability showing . required of plaintiff's group home was held to be a violation of the FHA because it was not applied to traditional families], U.S. v. City of Taylor. Mich. (E.D. Mich. 1992) 798 F.Supp. 442 [City's refusal to grant zoning approval to operate an adult foster care home for 12 elderly disabled persons in a single family area was a violation of the FHA's prohibition of handicap discrimination] and U.S. v. Borough of Audubon, N.J. (D.N.J. 1992) 797 F.Supp. 353 [a case involving another Oxford House facility which resulted ..1 .a -72 in the imposition of a civil penalty of $10,000 and injunctive relief prohibiting the Borough of Audubon from requiring Oxford House to apply for a variance to use its property as a boarding house or taking any other step's-to- vacate the property]. 12. The Congressional record describes the major purpose of the 1988 FHA amendments prohibiting housing discrimination protection against the handicapped as follows: Prohibiting discrimination against individuals with handicaps is a major step in changing the stereotypes that have served to exclude them from American life. These persons have been denied housing because of misperceptions, ignorance, and outright prejudice. The Fair Housing Amendments.Act, like Section 504 of the Rehabilitation Act of 1973, as amended [footnote omitted] is a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. General perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion. (House Report No. 100 -711 (H.R. Rep. No. 100 to 711, 100th Cong. 2nd Sess. (1988) reprinted in 1988 U.S. Code Cong. & Admin News 2173, at pp. 2178 - 2179.) 13. , The FEHA does not necessarily require administrative remedies to be exhausted prior to filing of an administrative complaint or a lawsuit. Government Code sections 12981 and 12989.2 both contemplate the possibility that an accusation may be issued by the DFEH or a civil suit may be filed alleging a facial validity challenge or to enjoin a threatened violation prior to the specific application of a zoning requirement to the complainant. Government Code section 12981 provides in pertinent part that an accusation shall be issued by DFEH in "the case of failure to eliminate a violation . . . which has occurred, or is about to occur" through the conciliation process "or in advance thereof if circumstances warrant." (Govt. Code § 12981 (a) .) Similarly, Government Code section 12989.2 specifically grants the court the discretion to issue 26 73 injunctive relief for any discriminatory housing practice which "has occurred or is about to occur." (Govt. Code § 12989.2.) 14. In Suffolk inrerrei3.criou5 Brookhaven (N.Y.A.D. 1 Dep court held that the denial property for multi - family view of the availability such uses. t. 1991) 575 NY.S.2d 548, the of an application to rezone development did not violate FHA in of vacant land already zoned for 15. See Village of Euclid v Ambler Realty Co. 47 S. Ct. 114 (1926).and Mira Dev. Corp v City of San Diego (1988) 205 Cal.App.3d 1201 [zoning ordinances may be invalidated only if it bears no reasonable relationship to the public welfare]. Compare with Litton Intern. Dev. Corp. v. City of Simi Valley (C.D.Ca. 1985) 616 F.Supp. 275, 296 [sustaining Simi Valley's denial of a zone change application in a case filed by a developed who alleged that his development application had been denied because his hotel project would have provided foreign student housing]. Under the traditional reasonable relationship, a court must sustain a city's land use regulation or action on a development permit if the validity of the city's action are fairly debatable. (Ibid., citing Construction Ind. v. Sonoma County (9th Cir. 1975) 522 F.2d 897.) 16. To date, the Ninth Circuit has not established a standard for a prima facie case of FHA discrimination in those cases alleging FHA discrimination on the basis of disability and familial status. (Cf. Keith v. Volpe (9,th Cir. 1988) 858 F.2d 467, 482 -484, [City of Hawthorne's refusal to approve construction of housing for low and moderate income residents displaced by freeway construction was found to be FHA discrimination because the city's decision had a racially- discriminatory effect]. See also Litton Intern. Dev Corn v City of Simi Valley.(C.D.Ca. 1985) 616 F.Supp. 275 [reasonable relationship test applied to a case alleging that denial of zone change application and development permit was motivated by an intent to discriminate against the foreign students who would b-e housed by the proposed hotel development.) However, the Eighth Circuit has held that the reasonable relationship standard of review is applicable to cases alleging discrimination against the disabled. In Familystyle of St Paul v Village of St. Paul (D. Minn. 1990) 728 F.Supp. 1396, the district court applied a compelling governmental interest standard and found that a Minnesota statute and local zoning ordinance requiring a 1,320 feet separation between licensed residential 27 lit .1 =74 facilities for retarded or mentally ill persons was not FHA discrimination. On appeal, the Eighth Circuit affirmed the decision, but held that the appropriate level of scrutiny was the reasonable relationship test because disability ig• not a constitutionally protected suspect class. (Familvstyle of St. Paul V. City of St. Paul. , Minn. F.2d 91, 94.) (8th Cir. 1991) 923 17. Government Code section 12981 provides, in pertinent part as follows: (f) If the time for judicial review of final commission order or decision has lapsed, or if all means of judicial review have been exhausted, the department may apply to the superior court . . . for the enforcement . of the order or decision or order as modified in accordance with a decision on judicial review. If, after a hearing, the court determines that an order or decision has been issued by the commission and that either the time limits for judicial review have lapsed, or the order or decision was upheld in whole or in part on judicial review, the court shall issue'a judgment and order enforcing the order or decision or order as modified, in accordance with a decision on judicial review. The court shall not review the merits of the order or decision. The court's judgment shall be nonappealable and shall have the same force and effect as, and shall be subject to all the provisions of law relating to, a judgment in a civil action. (Govt. Code §-12981 (f).) 28 00037/ z -9!Z November 9, 1998 -7- ATTACHMENT 3 city of sAn Luis oBispo 990 Palm Street, San Luis Obispo, CA 93401 -3249 Bud & Betsy Retzloff 71 Benton Way San Luis Obispo, CA 93401 Dear Bud & Betsy, The City of San Luis Obispo is currently in the process of updating the City's zoning regulations. One of the areas that is being considered for modifications is the city's regulations for secondary residential units (Chapter 17.21). As part of this process, the City Planning Commission has directed City staff to contact all property owners who have approved permits for a secondary dwelling unit. According to City records you have a secondary dwelling unit on your property. The Planning Commission would bike to obtain additional information on how secondary dwelling units are being used before making any decisions. Please take a moment to answer the questions on the enclosed survey and return it by Thursday November 19, 1998. A self addressed, stamped envelope is enclosed for your convenience. You may also call with your responses. If you have any questions you can call me at 781- 7166 or Phil Dunmore at 781 -7183 Thank you for your time and cooperation. John P. Shoals, Associate Planner San Lis Obispo Community Development Department The City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. Telecommunications Device for the Deaf (805) 781 -7410. 1 --7 1- Survey-of Seeondav Dwelling Units :in the City -of San Luis Obispo 1. What is the size:of•the piitnary residence? What is the size of the secondary -? dwelling unit 2. Is the secondary dwelling Wait within the priinmy residence, or.a separate structure? 3. How Many park -mg spaces are - provided for the secondary dwelling unit ? 'Are all the spaces. —used? i 4: Is the occupant of the secondary dwellirig,unit a member of your family? 5: Have, you ever requested a 3 year mriew of the 2od- Dwelling Unit? Z- 1 .7 S�- 5L lb CA .6131o� Survey of Secondary Dwellme Units in the City of San Luis Obispo 1. What is the size of the primary residence? What is the size of the secondary dwelling unit ? NIVV\ar1� - 116m s9. i- 5 eju,ndar � 5 Ott 2. is the secondary dwellWg unit withir_ the primary residence, or a separate structure? W\-Az ` m\ - 3. How Many parking spaces are provided for the secondary dwelling unit? Are all the spaces used? Oh e, - yes 4. Is the occupant of the secondary dwelling unit a member of your family? �D 5. Have you ever requested a 3 year review of the 2nd Dwelling Unit? N13 '0 --7 St Survey of Secondary Dwelling Units in the City of San Luis Obispo 1. What is the size of the primary residence? What is the size of the secondary dwelling unit ? 2. Is the secondary dwelling unit within the.primary residence, or a structure? 3. How Many parking spaces are provided for the secondary dwelling unit? Are all the spaces used? (1/'ES/ 4. Is the occupant of the secondary dwelling unit a member of your family? /)U 5. Have you ever requested a 3 year review of the 2°d Dwelling Unit? A), (D, /mac r K,.jo 6.j 4-.i4 -+r 7Z1 A-r I S z -79 Survey of Secondary Dwelling Units in the City of San Luis Obispo 1. What is the size of the primary residence? What is the size of the secondary dwelling unit ? 2. Is the secondary dwelling unit within the primary residence, or a separate structure? iii % /„ / i� -o, -� 3. How Many parking spaces are provided for the secondary dwelling unit? Are all the spaces used? 4. Is the occupant of the secondary dwelling unit a member of your family? 5. Have you ever requested a 3 year review of the 2od Dwelling Unit? M -An Survey of Secondary Dwelling Units in the City of San Luis Obispo (� II b What is the size of the secondary dwelling unit 1. What u the size of the primary residence. dart g + 2. Is the secondary dwelling unit within the primary residenoe, or a separate structure? 3. How Many parking spaces are provided for the secondary dwelling unit? Are all the spaces used? 5 7 �� J 4. Is the occupant of the secondary dwelling unit a member of your family? �1 5. Have you ever requested a 3 year review of the 2od Dwelling Unit? 1 -at Survey of Secondary Dwelling Units in the City of San Luis Obisao 1. What is the size of the primary residence? What is the size of the secondary dwelling unit ? 2. Is the secondary dwelling uno within yhe primary residence, or a separate structure? 3. How Many parking spaces are provided for the secondary dwelling unit? Are all the spaces used? 12 e`er 4. Is the occupant of the secondary dwelling unit a member of your family? 5. Have you ever requested a 3 year review of the 2°d Dwelling Unit? 1) _AIt ;bda Kadie Wheeler 764MUTOyAymA-- Son LaaO,bapp CA 9345 Survey of Secondary Dwelline Units in the City of San Luis Obispo What is the size of the primary residence? What is the size of the secondary dwelling unit ? 2. Is the secondary dwelling unit within the primary residence, ? How Many parldng spaces are provided for the secondary dwelling unit? Are all the spaces used? z 4. Is the occupant of the secondary dwelling unit a member of your 5. Have you ever requested a 3 year review of the Zed Dwelling Unit? O n _Qx �lhi►► Will t� -t oUSA STVoAF —T MTNCttJ Ahh E � Isg1 Survey of Secondary DweL a Units in the City of San Luis Obispo Whatj§-the4ig,o residence? What is the size 11 secondary dwe ' 1 unit ? lznv S�. 2. Is the secondary dwelling unit within the primary residence, or a separate structure? W l"I'd 3. How Many parking spaces are provided for the secondary dwelling unit? Are all the spaces used? (00 ,Z - NO 7H&V PZE F -A 51MC —T 1:hgml j 4. Is the occupant of the secondary dwelling unit a member of your family? No 5. Have you ever requested a 3 year review of the 2ad Dwelling Unit? .A4 Attachment "C» SAN LUIS OBISPO PLANNING COMMISSION RESOLUTION NO. 5245-98 WHEREAS, the Planning Commission of the City of San Luis Obispo did conduct a public hearing in the Council Chamber, City Hall, 990 Palm Street, San. Luis Obispo, California, on December 2, 1998, pursuant to a proceeding instituted under application ER and TA 70 -94, City of San Luis Obispo, applicant. ITEM REVIEWED: ER and TA 70-94: Zoning Regulations amendments changing various development standards and definitions. WHEREAS, said Commission as a result of its inspections, investigations, and studies made by itself, and in behalf of testimonies offered at said hearing has established existence of the following circumstances: 1. The Initial Study/Negative Declaration adequately addresses the potential environmental impacts of the proposed zoning text amendments. 2. The proposed zoning text amendments are consistent with the City's General Plan and other applicable City ordinances. 3. Modifications to Section 17.21.04A and B of the Zoning Regulations (Secondary Dwelling Units - Performance Standards) are recommended based on the finding that additional parking requirements are directly related to the use of the secondary dwelling unit as experienced throughout the city and due to the intense demand and usage of housing in the city. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission recommends to the City Council, adoption of the Phase III Zoning Text Amendments, '2 -As Resolution No. 5245 -98 Page 2 TA 70 -94, with the modifications as noted on attached Exhibit A, and approval of negative declaration of environmental impact, ER 70-94. The foregoing resolution was approved by the Planning Commission of the City of San Luis Obispo upon a separate roll call vote: AYES: Commissioners Senn, Jeffrey and Cooper NOES: Commissioner Whittlesey REFRAIN: None ABSENT: Commissioner Ready Two vacancies Arnold B. Jonas, Secretary Planning Commission .Ah Attachment "D" DRAFT SAN LUIS OBISPO PLANNING COMMISSION MEETING MINUTES DECEMBER 2, 1998 CALL TO ORDERIPLEDGE OF ALLEGIANCE: The San Luis Obispo Planning Commission was called to order at 7:00 p.m. on Wednesday, December 2, 1998, in Council Chambers of City Hall, 990 Palm Street, San Luis Obispo, California. ROLL CALL: Present: Commissioners Mary Whittlesey, David Jeffrey, Allan Cooper, and Chairman Charles Senn Absent: Commissioner Paul Ready and two vacant seats Staff Present: Development Review Manager Whisenand, Recording Secretary Leaha Magee, Planning Technician Michael Codron, and Assistant City Attorney Gilbert Trujillo. ACCEPTANCE OF THE AGENDA: The agenda was accepted as presented. APPROVAL OF THE MINUTES: The minutes of October 4, 1998, were accepted as amended and the minutes of November 14, 1998, were accepted as presented. PUBLIC COMMENT ON NON - AGENDA ITEMS: There were no public comments. PUBLIC HEARINGS: 2. Citywide: Zoning Regulations Amendments changing various development standards and definitions; City of San Luis Obispo, applicant. Development Review Manager Whisenand presented the staff report and recommended that the Commission recommend to the City Council of approval of the A -87 Draft Minutes Planning Commission Meeting 12/2/98 Page 2 negative declaration of ER -70 -94 and adoption of the Phase III Zoning Text Amendments. Commissioner Cooper questioned staff on the recommendation of parking calculations based on 1 space /unit or 2 spaces/unit and residential care facilities based on 1.5 spaces/first bedroom plus one space for each additional bedroom. He understands that residential care facility requirements can be no more restrictive than residences and he believes 1.5 for the first bedroom is a greater requirement. Development Review Manager Whisenand explained that secondary dwelling unit parking is a separate issue area. Commissioner Jeffrey asked why PDs are excluded from Section 17.21.030, C, General Requirement, Page 8 of the Zoning Regulations Amendments relating to secondary dwelling units. Development Review Manager Whisenand stated the exclusion is currently in the ordinance and no change is proposed. Commissioner Jeffrey noted the Gearhard development discussed on Nov. 18 was a PD. Development Review Manager Whisenand stated the Gearhard project was in an R -2 Zone which allows for multifamily development. The idea was that they would be able to have a small studio apartment above the garage. Commissioner Jeffrey cited Section 17.21.040, B, Performance Standards, Page 9 of the Zoning Regulations Amendments, and questioned if this may hinder the intent of the City's Affordable Housing Ordinance. He's concemed that older, nonconforming houses may not be able to participate in the pursuit of affordable housing. Development Review Manager Whisenand stated this is the existing language — it may be modified by the Commission and recommendations will be sent to Council if the Commission feels changes are necessary. Commissioner Jeffrey asked for clarification on the second sentence of Section 17.21.0505, Procedure Requirements, B, Page 10 of the Zoning Regulations Amendments. Development Review Manager Whisenand stated basically all applications require architectural review and he explained the various levels of architectural review. Commissioner Jeffrey asked why residential care facilities would be allowed in C /OS Zones, Table 9, Page 11 of the Zoning Regulations Amendments. A -27A Draft Minutes Planning Commission Meeting 12/2/98 Page 3 Development Review Manager Whisenand stated residential care facilities cannot be treated any differently than dwellings the C /OS Zone. He explained that under State and Federal law, one would be able to establish a residential care facilities in a home that is in a C /OS Zone. Commissioner Jeffrey asked for comment on Section 17.08.120, C, Page 14 of the Zoning Regulations Amendments relating to pool equipment. Development Review Manager Whisenand stated this is technically new language because it was previously mistakenly eliminated from the Municipal Code. The exact same language is proposed to be put back in. The idea is to protect adjacent residents from noisy pool equipment. There were no further comments or questions from staff and the public comment session was opened. PUBLIC COMMENT: Mattie Gates, 125 Serrano Hts., doesn't want to sacrifice the residential parking criteria. Each household needs to be responsible for the parking needs of its inhabitants. Brett Cross, 1217 Mariner's Cove, is surprised staff didn't survey other communities for residential parking standards. A survey conducted by Brian Christianson looked at similar communities with collages and found impacts with regards to parking. An impacted parking area was created which required two spaces per dwelling because there wasn't enough on -site parking. The city needs to continue with the needed two required spaces. Doreen Case, Albert Dr. resident, referred to Pat Veesart's newspaper article entitled San Luis Neighborhoods Are Under Siege, Need Protection, noting neighborhood protection needs to go hand -in -hand with economic development and policies to protect the quality of life for our neighborhoods. There are few protections in R -1 Zones and many battles are lost due to inadequate ordinances. Regarding the city survey, only seven of 17 responses were returned. She requested a follow -up on the remaining ten. The burden is put on residents to report more than five occupants, but proof is required. Home occupation follow -ups are necessary. There are no restrictions to the number of occupants of a secondary unit. She noted 1734 Alta has a 1,200 s.f. secondary unit. Many secondary unit owners know nothing about annual review. The purpose of a secondary unit is to provide low -cost housing while providing greater security, companionship, and family support, but it has not yet been determined if any of this is occurring. She asked that neighborhood be protected and requested rejection of the change in the parking requirements for secondary dwelling units. Jim Gates, 125 Serrano Hts., disagrees with the findings of the insufficient parking capacity on -site. The intent of the ordinance is not being fulfilled. In a two -block area in a -118 Draft Minutes Planning Commission Meeting 12/2/98 Page 4 his neighborhood there are six secondary units, all are being rented to students - half with inadequate parking. Low - cost/affordable housing is not met by this ordinance. Requiring two parking spaces is consistent with neighborhood needs. He doesn't believe staff has the ability or time to conduct an adequate survey. AI Bonnan, 272 Del Mar Ct., feels neighborhoods are changing. Many homes are purchased by parents of students and houses are packed with students. Parking should not be diminished, but increased. He's read 55% of SLO housing are rental units. Mr. Cross added there isn't an affordable housing requirement on secondary dwelling units. Seeing no further speakers come forward, the public comment session was closed. COMMISSION COMMENTS: Commissioner Whittlesey corrected the last sentence of 8, Energy and Mineral Resources, Page 8 of the Initial Study, to reflect the project will not conflict with city energy conservation plans. Commissioner Whittlesey questions the "cumulatively considerable" definition on 16c, Mandatory Finding of Significance, Page 8 of the Initial Study. Commissioner Cooper raised a question with 6d, Transportation /Circulation, on Page 6 of the Initial Study. He believes it's less than fair to state there are "no impacts" in terms of insufficient parking capacity on or off site. The Commission reached consensus that the definition of Fraternity House (or Sororities House), Section 17.04.190, is acceptable as amended by staff. The words "six or more" were stricken from the first sentence. The Commissioner reached consensus that the Sections Multifamily Dwellings, 1 Commissioner Whittlesey had staff review Table 6.5 on Page 5 of the Zoning Regulations Amendments. Chairman Senn questioned staff on the usage of bicycle lockers. He's noticed some are unused and targets for vandalism. A -11C Draft Minutes Planning Commission Meeting 12/2/98 Page 5 Commissioner Jeffrey feels Table 6.5, d, is an additional set of conditions. Development Review Manager Whisenand explained that a, b, and c are footnotes to Table 6.5 and only apply in categories where indicated. Care Facilities: Table 6: and V Secondary Dwelling Units, A and B are acceptable as presented by staff. presented by staff. Commissioner Cooper requested the language of Section 17.08.120, C, be clarified. of noise equipment shall be located not less than 10 feet from any window or other opening into a dwelling or other habitable building on an adjacent property. The Commission reached consensus to accept the deletion of Fortuntelling. Section 9.20.010. The Commission discussed III, Density Regulations, Section 17.16.010. Chairman Senn questioned why two years is referenced in E2. Development Review Manager Whisenand explained the relative stated law. Commissioner Jeffrey raised a concern with replacements not occurring within a timely manner and unsightly or dangerous conditions remaining if three years is recommended rather than two. the date of the damage or destruction. Commissioner Whittlesey recommended E3c read: The existing nonconforming use of the building or structure would be more appropriately moved to a zone which the use is permitted. A additional item, E3d, should should read: There no longer exists a zone in which the existing nonconforming use is permitted. a -$7D Draft Minutes Planning Commission Meeting 12/2/98 Page 6 The Commission reached consensus to accept ill, Density Regulations, Section Chairman Senn questioned deleting references to PD projects, Section 17.21.030, C. Commissioner Whittlesey does not support secondary dwelling unit additions to PDs. She feels PDs developments request and receive many accommodations as it is. Development Review Manager Whisenand feels the city has the ability to address this issue through the exception process as part of the use permit. Commissioner Jeffrey is concerned about the rights of homeowners as opposed to only the rights of developers. He doesn't want to eliminate the possibility of a secondary dwelling units. The Commission reached consensus that Chapter 17.21, Sections 17.21.010, Purpose: 17.21.020, Definitions, and 17.21.030. General Requirements, are acceptable as presented by staff. The Commission accepted Section 17.21.050, Procedure Requirements, as presented Commission Ordinance and Guidelines. The Director shall determine, upon receiving complete application, whether the project is declared minor or incidental. If the project is not determined to be minor or incidental by the Director it is forwarded to the Architectural Review commission for review. The Commission reached consensus to accept Section 17.21.060, Periodic Review - Violations, as presented by staff , and after discussion, deleted the last sentence of A relative to property owners initiating review. The Commission discussed Section 17.21.040, Performance Standards, and reached consensus to accept, 14, as presented by staff. The Commission discussed Section 17.21.040, Performance Standards, A -C. Commissioner Jeffrey feels the reason we're trying to make sure R -1 and R -2 parking is the same is for code compliance. It seems our hands are tied unless there's an exception requested. He proposed amending the last sentence of C as follows: The parking requirement for a secondary dwelling unit in the R -1 Zone shall be the same as a dwelling unit of the same type in the R -2 Zone, except in impacted parking neighborhoods where the Director may determine additional parking would be required. a- IM E Draft Minutes Planning Commission Meeting 12/2/98 Page 7 Development Review Manager Whisenand expressed a concern for a definition of "impacted parking neighborhoods." Commissioner Whittlesey feels secondary dwelling units occupied by students have a different impact on neighborhoods than granny units do. She believes we need to have a greater requirement for parking because this is a college town and residential parking is impacted. She's not willing to lessen the requirement. She feels the discretionary aspect of Commissioner Jeffrey's suggestion is too great. Commissioner Cooper would like to see the wording clarified where conditions of exception can be stated /specked. He is uncomfortable about giving parking up without getting something in return. He's contemplated making tradeoffs where one parking space would be relinquished in return additional use of open space or additional bicycle parking spaces. He believes we should keep it as is and maybe explore circumstances where exceptions can be made. Commissioner Jeffrey is under the impression that it can't be left as is. In order to comply with the code we need to change it to one space. Attorney Trujillo cited Government Code Section 65852.2. Commissioner Whittlesey believes secondary dwelling unit parking impacts are felt citywide. Commissioner Jeffrey is concerned that the Neighborhood Wellness Program is not acted upon. If neighborhoods could demonstrate that they have impacted parking areas to the satisfaction of the Director, it would seem reasonable the Director could determine if an extra parking space would be required for that secondary dwelling unit. Development Review Manager Whisenand understands Commissioner Jeffrey's concern, but questions the definition what may be considered "impacted." Attorney Trujillo stated the Director could be given the discretion to determine on a case -by -case basis whether or not a particular neighborhood needs an additional parking space for a secondary dwelling units. Commissioner Cooper expressed concern about acting on an exception based on current use. Exceptions should be acted on what the potential, long -term use could be. dwelling unit under Section 12.21.040 C. The motion was seconded by Commissioner Cooper. a -97F Draft Minutes Planning Commission Meeting 12/2/98 Page 8 Commissioner Jeffrey feels the city needs to be ensured that areas where there needs to be two parking spaces the city has the ability to require two. He is concerned why the Commission would pass on to the Council a recommendation that might cause litigation — he was under the impression the requirement of two spaces could be grounds for litigation at a later date. experienced throughout our city due to the intense demand and usage of housing in our city. Commissioner Cooper accepted the amendment to the motion. Chairman Senn and Commissioner Jeffrey feel two parking spaces are adequate, but if appropriate exceptions or an appropriate reason can be found, one space may be appropriate. Development Review Manager Whisenand cited Subsection 2, which was already accepted by the Commission, and does not prohibit applicants from requesting exceptions for variances from the strict interpretation of Zoning Regulations to the extent allowed by said regulation for any other use. Commissioner Jeffrey would prefer B be deleted entirely. The Commission and Staff discussed the Administrative Hearing level review of nonconforming structures for proposed secondary units. The Commission reached consensus to delete A and B of 17.21.040. Performance Standards. Commissioner Whittlesev dissented. to the motion. AYES: Commissioners Whittlesey, Cooper, Jeffrey, and Chairman Senn NOES: None REFRAIN: None The motion carried 4 -0 -0. Commissioner Ready was absent and there are two vacant seats. Commissioner Jeffrey moved to recommend to recommend to the City Council Section 17.21.040, Performance Standards, A and B be deleted. The motion was seconded by Commissioner. AYES: Commissioners Jeffrey, Cooper, and Chairman Senn a -siq Draft Minutes - Planning Commission Meeting 12/2/98 Page 9 = NOES: Commissioner Whittlesey REFRAIN: None The motion carne_ d 304 Commissioner Ready was absent and' there are two vacant seats. a =RAN O %�ej J2, RECEIVED NOV 3 G 1998 CITY OF SAN LUIS OBISPO COMMUNITY DEVELOPMENT Honorable Members of the City Planning Commission: Re: Zoning Regulations Amendments Phase Dwelling Units. Removal of one parking a secondary unit in R1 neighborhoods. November 27, 1998 111. Secondary space requirement for We support secondary units where there is sufficient property to accommodate the extra occupants and cars. Because of the burgeoning university population pressures on the Alta Vista neighborhood and the existing "other" units here and in other R1 areas., we strongly oppose reducing the present two space requirement. California law supports the two space requirement where unusual circumstances exist. To illustrate the density that occurs in the Alta Vista neighborhood, please see the accompanying sheet. In fairness, we support striking the line in 17.21.030 G. "Whenever an increase in floor area if involved, it shall not exceed 10% of the existing living area." Under 17.21.060 Periodic Review -- Violations, we favor the suggestion of Commissioner Ready, to make the city responsible for initiating the review of the property. Sincerely, Henry and Doreen 244 Albert Drive San Luis Obispo, Case CA 93405 -1_ne ALTA VISTA NEIGHBORHOOD DENSITY SLACK STREET - -Eight student houses (40 +cars), with more than 5 adults per house - cannot prove with solid parking and open parking across the street. One house has a secondary unit with a covenant, no way to prove a violation. Owner not on premises. ALBERT DRIVE- -five houses with covenanted agreements for "recreation" rooms with bath, etc. One house has a deluxe covenanted apartment over garage which the city allowed to be built against the wishes of neighbors. Cannot prove it is rented and has kitchen. City never.investigates. Also, two student residents in neighborhood. CHAPLIN LANE- -Two student rentals, one with unheated separate room being occupied. Home has a history of violations but is never inspected. LONGVIEW LANE- -One legal secondary unit, one "recreation" unit rented by widow with no objection, one covenanted studio over a garage, and two student rentals. KENTUCKY AVENUE- -One unattached granny house, one house with probably covenanted attached unit rented to student, one historic converted garage (unused), one student rental house. HATHWAY STREET (Longview to Bond) -- Thirteen students rentals (65 cars), two houses with rental units. FREDERICKS STREET (Chaplin to Grand) - -One house with enclosed unit, one house with converted shed, one house with living quarters adjoining garage, one house with separate shed rental, etc. ORANGE DRIVE - -One house with secondary unit, another house with covenanted separate unit that had been rented out. Owners cited when house recently sold. Five student rentals. Q 9 Planning Commission Krim -September 23, 1998 Page 3 Gates, 125 Serrano Heights, supports neighborhood wellness activities and feels ma unnecessary hearings could be eliminated by implementing this program. He app tes staffs efforts to contact some of the neighbors, but wishes he would have been co cted and City regulations were uniformly followed. He would like subcontract to be listed in Condition #1 as well as employees. Mr. Irwin stated h�farely has subcontractors at his home and doesn't hold meetings there. �� Michael Codron noted the pbnit will be reviewed if complaints are received. Seeing no further speakers come COMMISSION COMMENTS: , the public comment session was closed. include "or subcontractor" with Condition #1. AYES: Commissioners Ready, Jeffrey, Marx, Whittlesey, and Ch ' an Senn NOES: None ABSTAIN: Commissioner Ewan The motion carried 5-0-1. Commissioner Ewan refrained from participating due t late arrival. COMMENT AND DISCUSSION: 2. Study Session: TA 70 -94: Review and discussion of Phase III Zoning Regulations Amendments; City of San Luis Obispo, applicant John Shoals, Associate Planner, presented the staff report and recommended reviewing the text amendments, taking public input, and providing staff with direction. Ronald Whisenand, Development Review Manger, noted numbering errors. Page 2, II A should reflect 17.12.020, Page 2, II B should reflect 17.14.020, and Page 4, IV A should reflect 17.16.060. Chairman Senn opened the public comment session to receive input PUBLIC COMMENTS: n -Q ft Planning Commission Minui. = September 23, 1998 Page 4 Brett Cross, 1217 Mariner's Cove, believes Chairman Senn should step down from discussion regarding the Mixed Use Ordinance. He believes there is a conflict of interest because the chairman is a commercial real estate broker. Doreen Case, 244 Albert Drive, is concerned about secondary dwelling units and lowering parking requirements. R -1 areas are becoming college dormitories. Densities are too high and parking is at a premium. There are many unmonitored legal and illegal secondary units in town. Residential areas are over burdened with secondary units. Mr. Cross stated it's the Commission's job to make sure projects and zoning regulations meet the intent of the General Plan. The intent for the mixed use aspect is to try to encourage commercial developers to include residential in their projects. He believes uses should be reviewed for C-S and C-N Zones. Richard Schmidt. 112 Broad Street, distributed a handout to the Commission and stated the original idea behind the Mixed Use Ordinance was to recapture and encourage some of the residential density and liveliness that we used to have downtown. He originally hoped the City would apply an MU Overlay to the areas that it wanted to direct this sort of development, but was left up to individual property owners to propose. He doesn't favor all of the proposed changes and noted staffs shading of recommendations didn't appear clearly on copies. He questions combining uses on contiguous parcels, Page 12, B. The primary purpose of the MU zone is to permit combining residential uses and commercial uses on a single parcel within non- residential zones. It needs to be clarified this ordinance is not for adding commercial uses to residential zones. He added that hedge height limits are not complied with or enforced. Rick Racouillat, 511 Serrano Drive, feels secondary dwelling units, Page 8, C, should have the same parking requirements as in the R -1 zone rather than the R -2 zone. Secondary dwelling unit parking requirements should not be reduced. He cited Government Code Section 65852.2, Paragraph E, and suggest it be added to Page 8, C. Bill McLennon, 706 Meinecke, asked that the MU Ordinance be tabled so that it can be discussed explicitly. He feels everything is being done to facilitate projects, causing. more liberal interpretations of zoning regulations. He feels MU would be a disaster for R -1 and R -2 neighborhoods. Commercial development doesn't have any place in an R -1 zone. Wolfoang Gartener, (Inaudible) Santa Rosa St., is concerned about the preservation of residential life. He suggested an investigation of how many downtown properties for sale are losing residential qualities. Suggested language should be clarified so discretion is not left with only a few people. 1) _ai Planning Commission Minna, . - September 23, 1998 Page 5 Mattie Gates, 125 Serrano Heights,_feels R -1 zones are being obliterated. She asked that the second sentence of the last paragraph of Page 2 be deleted. Square footage of secondary units should be defined to meet state law. Ronald Whisenand clarified that there is no proposal to modify the area limit of 450 sq. ft. or the 10% required. Jim Gates, 125 Serrano Heights., believes Chairman Senn adds diversity to the quality of the Commission and should not step down. He feels it is becoming difficult to tell R -1 from R -2 zones in terms of parking and density. R -1 zones need to be preserved and developed. Tom McKay, 369 Chaplin, concurred with previous speakers. His main concern is over parking for secondary dwellings. A reduction from two to one space doesn't make sense. Star Jenkins, 285 Morning Vista, disagrees with parking reductions for secondary dwelling units. Seeing no further speakers come forward, the public comment session was closed. COMMISSION COMMENTS: The Commission reached consensus to accept staffs recommendation on Definitions, A, 17.04.080, Convalescent Hospital, and, after discussion, agreed to replace "bed care" with "skilled nursing and/or allied health professional care," at the suggestion of Commissioner Jeffrey. The Commission reached consensus to accept staffs recommendation on Definitions, A, 17.04.330, Rest Home, and, after discussion, agreed to replace "ambulatory" with "independently mobile," at the suggestion of Commissioner Jeffrey. Ronald Whisenand reviewed revised definitions for 17.04.190, Fraternity House (or Sorority House). The Commission reached consensus to accept staffs recommended revision. The Commission reached consensus to accept staffs recommendation for Definitions 17.04.271, Multifamily Dwelling, and, after discussion, agreed to include a note that this does not include secondary dwelling units as defined. After brief staff summary, the Commission reached consensus to accept staffs recommendation for Non-conforming Regulations, A. Non - conforming lots, 17.12.020, Regulations, as presented. After brief staff summary, the Commission reached consensus to accept staffs Non- conforming Regulations, B, Non - conforming Structures, 17.14.020, Regulations, and n -91 Planning Commission Minute._ - September 23, 1998 Page 6 after discussion, agreed to replace "SB 2112" with the current code section, at the suggestion of Commissioner Marx. Ronald Whisenand reviewed Parking Regulations, B, Parking for Residential Care Facilities, Table 6, and noted staff will replace AB 2244 with the current code section, pursuant to Commissioner Marx's previous suggestion. Commissioner Jeffrey is troubled by the intensity of the use versus availability of parking. The Commission reviewed Land Use Matrix (Table 9) changes and reached consensus to accept staffs recommendations on the Fortunetellers and Residential Care Facilities categories.. The Commission reached consensus to accept staffs recommendation on Commercial Zoning District Standards, A, 17.42.020, Property Developments, as presented. After staff review and brief discussion, the Commission reached consensus to accept staffs recommendation on Section IX Miscellaneous Amendments, as presented. Chairman Senn asked Commissioners to provide comments on Page 2, III, Density Regulations. Commissioner Jeffrey is concerned about the criteria that would be available to turn down reconstruction, 3a, Page 3. Commissioner Ewan noted an inconsistency using "more than 50 %" and "one -half or more" in this section. Commissioner Marx favors discretion being retained in this section and noted the appeals process is available for those unhappy with results. Commissioner Whittlesey questioned requirements regarding reconstruction of non- conforming utility infrastructures. Chairman Senn believes the degree of discretion may be too broad, for example with 3a and 3b, and asked that clarification be brought back before the Commission. Chairman Senn asked Commissioners to provide comments on Page 3, IV, Parking Regulations. Commissioner Jeffrey is concerned about granting parking reductions and underutil'ization of bicycle parking by employees /employers. Commissioner Marx believes there should be some nexus between granting a parking reduction based on providing motorcyclelbicycle parking and the nature of a h -4R Planning Commission MinL.-.i -September 23, 1998 Page 7 business/store. She would like staff to provide more information/discussion on how this has been working and if there have been complaints. Commissioner Whittlesey noted there is nothing mentioned about the Circulation Element and a link to the General Plan. Chairman Senn asked Commissioners to provide comments on Page 6,V, Secondary Dwelling Units. Chairman Senn asked how many legal secondary dwelling units there are at this time. Ronald Whisenand replied 13 applications have be submitted, but less than 10 that have been constructed. There have been reports of illegal units. Commissioner Jeffrey is troubled by the secondary unit size limitation based on 10% of the existing living area or a maximum of 450 s.f. Nowadays many are caring for elderly relatives and a secondary unit would be helpful. He is concerned about 17.21.040, Performance Standards, B, because there are older areas of town which may be precluded from constructing secondary units because of changes in regulations which have resulted in a nonconformance. A parking reduction from two spaces to one and R -1 and R -2 requirements are also a concern. Commissioner Ewan is concerned about secondary dwelling unit uses such as by elderly relatives versus students. Commissioner Whittlesey can support the 450 sq. ft. or 10% size limitation on secondary dwelling units, but has an issue with a parking reduction. Commissioner Marx concurred. Commissioner Ready feels the last sentence of 17.21.050 B, Page 9, is awkward and should be reworded. He questions enforcement of 17.21.060, Periodic Review - Violations, A, Page 10. Chairman Senn shares Commissioner Jeffrey's concerns regarding size limitations on secondary dwelling units. Someone would have to have a 4,500 sq. ft. home to build a 450 sq. ft. secondary dwelling unit. Economic status will govern secondary dwelling unit sizes. Chairman Senn asked for Commission comment on R -1/R -2 parking issues. Commissioner Marx agrees with RQN's concerns and feels a reduction in parking requirements would be a disaster. Commissioner Ewan believes two parking spaces should be required. ,.1 -cd Planning Commission Minu. s - September 23, 1998 Page 8 Commissioner Whittlesey feels two parking spaces is not unreasonable. Commissioner Ready is not opposed to considering two additional spaces per unit, but questions if it would be possible to tie this requirement into the number of bedrooms in the existing structure. This may help address the concerns of the neighborhood. Commissioner Jeffrey agrees with some way of tying the parking requirement into the number of bedrooms. Ronald Whisenand reviewed parking requirements for apartments. Staff feels two parking spaces for a 450 sq. ft. unit may be excessive. Chairman .Senn would like staff to provide information on the 13 secondary dwelling units that have been approved, such as how many persons are living in each unit, size of the main structure, number of cars, etc. Commissioner Marx strongly disagrees with reducing the parking requirement A parking reduction may allow more students to pack into a unit. R -1 neighborhoods need protection. Chairman Senn reopened the public comment period. PUBLIC COMMENTS: Brett Cross, 1217 Mariner's Cove, raised a concern about secondary dwelling unit required parking. Doreen Case, RQN member, noted up to three people live in a studio apartments and many have cars. Neighborhoods are being overloaded. Secondary units for elderly family members is a great thought, but unfortunately it doesn't work out as planned. Rick Racouillat, 511 Serrano Dr., asked if it is customary to have applicants prepare the agreement on Page 10, #2. Commissioner Ready suggested rewording the sentence to reflect the applicant shall "execute" and "sign" the final copy rather than "submit" and "prepare" the final copy. Mr. Racouillat questioned 17.21.060, Periodic Review - Violations, A, and enforcement. Staff should review these permits on a timely basis. Seeing no further speakers come forward, the public comment session was closed. COMMISSION COMMENTS: .a -95 Planning Commission Mims,. s - September 23, 1998 - Page 9 Chairman Senn requested factual information on the 13 existing secondary dwelling units and stated he feels the 10% size based on the size of the existing structure is economically restrictive to those with smaller homes. Commissioner Jeffrey questioned why the Commission should stick to an arbitrary percentage rather than a universal square footage guideline of determining the size of the secondary unit. Commissioner Ready agrees with a limitation on the square footage, but has a problem with the 10% figure. The Commission directed staff to bring back alternative language on secondary dwelling units for further Commission discussion. The Commission agreed to continue discussion on the PD/MU Designations after the upcoming workshop is held and input is received. Chairman Senn stated it was never the intention for the MU Designation to be used to allow commercial expansion in residential areas. Atty. Trujillo stated Parking for Residential Care Facilities, B, Page 5, is preempted by State Legislature. He will replace AB 2244 with the current code section. Qaau — n cnua rWI W%,aaa. October , 1998 — A zoning classification/Escort Bldg. to allow extended uses, a road abandonme on Johnson Ave., zoning classification for downtown Bank of America building. October 20, 1998 — Th ouncil will consider a request to modify the conditions of approval for Food 4 Less in er to extend their hours of operation. November 4, 1998 — DeVaul Ranch nexation 4. Commission: Commissioners interested in attending the Leagu f California Cities conference should contact staff. Chairman Senn will notify Council that airport expansion cems have been expressed to the Commission. The Commission and staff discussed ways to improve public noticing procedu Staff will report back with any suggestions /changes. .2-9/0