HomeMy WebLinkAbout01/05/1999, 2 - REGULATION OF GROUP HOMES AFTER AB 2244 CONT0
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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
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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
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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
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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,
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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
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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)."
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(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
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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
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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.
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"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.
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(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,
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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
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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.
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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
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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].
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On March 14, 1994, the Ninth Circuit issued an opinion in
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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
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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 ?
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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?
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5. Have you ever requested a 3 year review of the 2nd Dwelling Unit?
N13
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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?
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5. Have you ever requested a 3 year review of the 2°d Dwelling Unit?
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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
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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?
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4. Is the occupant of the secondary dwelling unit a member of your family?
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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
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�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 ?
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2. Is the secondary dwelling unit within the primary residence, or a separate structure?
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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