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HomeMy WebLinkAboutPlanning Commission 2012-11-13 #2 CITY OF Community Development Department – Planning Division P. O. Box 151560, San Rafael, CA 94915-1560 PHONE: (415) 485-3085/FAX: (415) 485-3184 Meeting Date: November 13, 2012 Agenda Item: Case Numbers: ZO11-001 Project Planner: Lisa Goldfien - (415) 485-3080 Raffi Boloyan - (415) 485-3095 REPORT TO PLANNING COMMISSION SUBJECT: Citywide (Regulation of Group Homes) Consideration of an Ordinance to amend the San Rafael Zoning Ordinance, San Rafael Municipal Code Title 14, to include new definitions and regulations concerning group residential uses including unlicensed “residential support facilities” for the disabled. Applicant: City of San Rafael, File No.: ZO11- 001 EXECUTIVE SUMMARY In early 2011, the City learned of the impending opening of two new unlicensed “Sober Living Environments” or “SLE’s”-- homes intended to provide supportive group housing in a single family residence setting for individuals recovering from drug and/or alcohol addiction. To allow staff time to study the possibility of regulating this and similar uses, the City Council adopted a moratorium on the establishment of new “large” (7 or more residents not including staff) unlicensed group homes. The Council directed staff to research the law and to determine whether and to what extent such uses could be regulated. After staff reported back that some regulation of the use was possible, the Council extended the moratorium through December 2012 to allow staff time to complete its research and to draft possible amendments to the zoning ordinance to regulate the use. This hearing is to consider options and make recommendations to the City Council for zoning ordinance amendments to regulate this type of group home use. Notably, while staff has proposed the adoption of specified regulations, staff has also concluded that a viable option would be for the City to adopt no additional regulations for the use at present, but rather to take a “wait and see” approach. RECOMMENDATION It is recommended that the Planning Commission adopt the attached Resolution recommending to the City Council adoption of amendments to various sections of the Zoning Ordinance to include definitions and regulations concerning group residential uses, including residential support facilities for the disabled. (Exhibit 1) BACKGROUND The Moratorium: In early 2011, the City learned of the impending opening of two new unlicensed “Sober Living Environments” (“SLE’s”) intended to provide supportive group housing in a single family residence setting for seven (7) or more individuals recovering from drug and/or alcohol addiction. The news caused a great deal of concern among neighbors of the two homes, who were adamant that this type of use needed to be regulated by the City. The residents expressed fears that there would be too many people living in the proposed residences, resulting in unacceptable fire hazards and adverse noise, parking and traffic impacts. Some residents objected to allowing such homes at all in single family residential neighborhoods, asserting that the SLE’s were fundamentally a commercial use catering to a transient population, which would undermine the character and stability of those neighborhoods. The City Council responded by asking for a report from staff concerning the City’s ability to regulate this use. REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 2 The City Attorney determined at the time that the City’s zoning ordinance does not currently contain provisions for any kind of group residential use other than traditional “boarding houses” and “residential care facilities” licensed by the State of California, and that the alleged business operation of an unlicensed group home for occupancy by disabled persons did not appear to come within either definition and was therefore not permitted in San Rafael. The City Attorney also concluded that the City’s ability to regulate such a use is governed by a complex set of laws designed to promote fair housing for disabled persons; therefore, as a precautionary measure to allow staff adequate time to study the matter, the City Attorney recommended that the City Council adopt an urgency “moratorium” ordinance temporarily prohibiting the opening and operation of any “unlicensed large group home” in any residential zoning district within the City. The Council adopted the recommended moratorium on March 7, 2011. The Council subsequently established a subcommittee consisting of Council member Mark Levine and Mayor Gary Phillips to work with staff in studying the regulation of group homes. The moratorium defined an “unlicensed large group home” as “a residential use of real property in a residential zoning district of the City operated on either a for-profit or not for-profit business basis as a group home, not licensed by the State of California, for the housing of seven (7) or more unrelated adults, not including onsite managers or operators, on a month-to-month or similar transitory basis.” By its terms, the moratorium did not apply to homes that were already open and occupied on or before March 7, 2011. The Council subsequently extended the moratorium twice to provide staff with additional time to research the law and to make recommendations for amendments to San Rafael Municipal Code Title 14 (“Zoning Ordinance”) to regulate the use. The moratorium is now due to expire on December 31, 2012. NOTE: While much of the discussion in this report is in reference to SLE’s, because the input staff has received has been focused on that use, it should be remembered that the research and recommendations described below would apply to group housing for any disabled population, not merely those recovering from substance addiction. Staff Research and Outreach: Following their initial research of laws pertaining to group homes, the City Attorney and Community Development Department staff hosted a community meeting in July 2011, to present their findings. At that community meeting, City staff reported that it appeared that the City has some ability to regulate group home businesses in residential districts, and that the City Attorney would continue to research and develop recommendations that could include proposed amendments to the City’s Zoning Ordinance. Thereafter, staff continued its research and considered numerous approaches and options to permitting and/or regulating group homes. On July 25, 2012, staff held a second community meeting to present proposed recommended changes to the City’s zoning ordinance to the community. In addition to the community meetings, staff has met, during the course of the moratorium, with interested City residents and their attorneys, the Council/Coalition/Federation committee, an attorney for two of the operators of unlicensed group homes, and a group of providers of support services for potential clients of group homes. Two of these providers, Community Action Marin and the Marin Recovery Project, have been working with County of Marin staff to develop and administer a countywide client “referral service” for SLE’s. In recent months, the Marin Recovery Project has created a set of policies and procedures entitled “Guidelines for Sober Living Environments” which will be used by the County of Marin’s Department of Health and Human Services for oversight of SLE’s to which it makes referrals. A copy of the Guidelines is attached as Exhibit 5, and staff believes they provide an excellent standard for operation of SLE’s in the community. In our latest communication with the organizers of this service, we have been informed that the guidelines have been ratified and approved and that the Marin Recovery Project is now recruiting SLE operators to join its network of endorsed homes. Marin Recovery Project’s outreach to SLE’s REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 3 continues, and a finalized list of endorsed homes is expected to be completed by the end of this year. This SLE referral service is intended to be transparent, meaning that once an SLE operator chooses to be a part of this network, it will consent to having its home(s) included in a publicly-accessible list. To maintain a listing on the network, the SLE must continue to comply with the adopted guidelines referenced above. Lastly, the Marin Recovery Project will regularly monitor and evaluate the endorsed SLE’s, and is looking at implementing a ‘grading’ system of sorts. PROJECT DESCRIPTION Amendments to Title 14 of the City of San Rafael Municipal Code (Zoning) to add new definitions and regulations concerning group residential uses including unlicensed “residential support facilities” for the disabled. ANALYSIS Research and Data Collected During Moratorium: During the pendency of the moratorium, staff conducted extensive research to determine the location of existing licensed and unlicensed group homes in San Rafael. An inventory of licensed group homes, designated as “residential care facilities” in the Zoning Ordinance, is available on the State of California Department of Social Services website (www.ccld.ca.gov). In San Rafael, there are approximately 40 such residential care facilities. For unlicensed group homes, there are no public agencies, nor any one resource, that can provide an accurate count or location in the community. However, for SLE-type homes, staff found several sources that are membership-based, which provide support and/or referrals for clients and SLE operators. These organizations include Intervention America, Arcuria, CAARR, and Nor Cal Clean & Sober Network. Several of these organizations publish a listing of participating SLE’s in communities throughout California and beyond. In reviewing these resources, staff was able to identify approximately 16 SLE’s in San Rafael. Of the 16, six are located in North San Rafael (Terra Linda), five are located in Central San Rafael East (east of US101) and five are located in Central San Rafael West (west of US101). Of these, 9 are located in low density R or DR residential zones, and 7 are located in medium or high density MR or HR zones. Since the adoption of the moratorium, the Bay Area Sober Living SLE at One Culloden Park Road ceased operation. Staff believes that this inventory of participating SLE’s may not represent all of the SLE’s or similar unlicensed group homes in San Rafael, as there may be some homes that are not affiliated with membership and support organizations. Since the start of the moratorium, staff has been tracking complaints regarding known group homes, in an effort to obtain some sense of whether this use is creating significant or distinct neighborhood issues. In discussions with community residents about group home issues, particularly in the two community meetings that were held during the moratorium, residents were informed that specific complaints about known group homes should be submitted and/or reported to the City. During the pendency of the moratorium (February 2011 to present), Police Incident Reports were filed and the Police Department staff responded to 13 neighbor complaints at the 200 and 201 Marin Street SLE’s. All but two of the complaints were in response to abandoned vehicles or vehicles parked in a red zone. One complaint was for evening noise and another was a report of petty theft. During this time two neighbor complaints were filed with Code Enforcement about street parking associated with an SLE located in Terra Linda. Lastly, there is one pending Code Enforcement case addressing the conversion of a garage to habitable space in an SLE located in Terra Linda. The garage conversion has been corrected and returned to a garage. There were no other neighbor complaints to Police or Code Enforcement associated with SLE’s or other unlicensed group homes during this 18-month period. Staff’s conclusion is that at present, the unlicensed group home use is not creating significant neighborhood impacts distinct from those ordinarily created by single family homes. REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 4 Legal Authorities: City Attorney staff has reviewed numerous statutes, cases and articles concerning the regulation of various types of group living arrangements. This complex area of law requires consideration of federal constitutional principles of free speech, equal protection and due process, the California State constitutional right of privacy, the federal Fair Housing Act (“FHA”) and the Fair Housing Amendments Act of 1988 (“FHAA”), the federal Americans with Disabilities Act (“ADA”), the California Health and Safety Code and Welfare and Institutions Code provisions governing licensed residential care, health and treatment facilities, and principles and requirements of California planning and zoning law. Persons considered “disabled” are protected from discrimination in housing by both federal and state laws; in particular, the federal Fair Housing Amendments Act (“FHAA”), the Americans with Disabilities Act (“ADA”), and the California Health & Welfare Code provisions concerning certain types of congregate care homes for the disabled. The FHAA makes it unlawful to discriminate in the sale or rental of, or to otherwise make unavailable or deny, housing to persons protected under the Act.1 These protections are applicable to individuals recovering from drug or alcohol addiction, as it is well established that such individuals are considered to be disabled under federal law.2 In addition, whether for able-bodied or disabled individuals, the City’s ability to regulate group occupancy of single-family homes is constrained by California law. The California Supreme Court has held that the California Constitutional right of privacy prohibits discrimination among group residential occupancies based on whether or not the occupants are related (i.e., by blood, marriage or adoption), but confirmed that cities can regulate to preserve “residential character” by restrictions on transient and institutional uses such as hotels, motels, boarding houses, clubs, etc. (Adamson v. City of Santa Barbara (1980) 27 Cal.3d 123, 133. [Court held unconstitutional city’s definition of “family” that would have prohibited occupancy of a single family home by a group of 12 adults, not related by blood, marriage, or adoption, living in a 24-room, 10-bedroom, 6-bathroom house, who became a close group with social, economic, and psychological commitments to each other and shared expenses, rotate chores, and ate evening meals together.].) Furthermore, while numerical occupancy limits are permissible under federal fair housing laws3, the State of California has established building occupancy limits in its housing code, and California cities may not impose stricter occupancy limits than those adopted by the state unless the City Council expressly finds that there are “local climatic, geological, or topographical conditions” which justify deviations from the state standards. (Health & Saf. Code § 17958.7; Briseno v. City of Santa Ana (1992) 6 Cal.App.4th 1378, 1383) The state housing code occupancy limits are quite liberal, allowing, for example, up to seven (7) persons to reside in a 400 square foot residence (the size of an average two-car garage). Finally, both federal and state law require that the City provide a “reasonable accommodation” process to disabled persons, whereby they may request relief from particular City requirements in order to be able to live in the housing of their choice. In such a process, the City is required to grant an accommodation shown to be reasonable and necessary, unless to do so would necessitate a fundamental alteration of the City’s zoning program or other policies, or would impose undue financial or administrative burdens on the City, or would directly threaten the health and safety of other persons or property. (Bryant Woods Inn 1 42 U.S.C. Section 3604(f)(1). 2 Corporation of Episcopal Church in Utah v. West Valley City (D. Utah 2000) 119 F.Supp.2d 1215, 1219. 3 The FHA permits cities to impose “maximum occupancy restrictions,” which the Supreme Court has described as “ordinarily apply[ing] uniformly to all residents of all dwelling units.” City of Edmonds v. Oxford House, Inc. (1995) 514 U.S. 725, 733. Rules designed to preserve the family character of a neighborhood, focusing on the composition of households rather than on the total number of occupants that living quarters can contain, do not come within this provision. Id. at 734-35. REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 5 v. Howard County, Maryland, 124 F.3d 597, 604 (4th Cir.1997).) For this reason, the reasonable accommodation process is at once situation specific and substantially nondiscretionary. In short, these laws have established important limitations on how the City may regulate group housing for disabled persons, including individuals recovering from drug or alcohol addiction. Notably: · Groups of unrelated individuals who live together as a single household must be treated as the equivalent of a traditional family for zoning purposes and cannot be subjected to special occupancy restrictions; · The 9th Circuit Court of Appeals has held that “to allow the circumstance of facial discrimination [based on a protected classification]. . ., a defendant must show either: (1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes.” (Community House, Inc. v. City of Boise (9th Cir. 2007) 490 F.3d 1041, 1050.); · The City cannot adopt spacing or density requirements applicable only to the disabled; · Under the FHAA, it is a discriminatory practice to refuse to make a reasonable accommodation in rules, policies, practices, or services when such accommodation may be necessary to afford [a disabled] person equal opportunity to use and enjoy a dwelling. (42 U.S.C. § 3604(f)(3)(B).) The federal 9th Circuit Court of Appeals has held that the FHAA imposes an affirmative duty on a City to make reasonable accommodations in the application of its land use regulations to disabled person residences. (Gamble v. City of Escondido (9th Cir. 1996) 104 F.3d 300, 307.); · The City is required to permit small licensed group homes (6 or fewer residents not including staff) wherever a single family residence is permitted. The City’s regulation of this type of use, denominated a “small residential care facility” in the zoning ordinance, complies with this requirement. (Licensed facilities for 7 or more, called “large residential care facilities” also are not currently regulated if they serve the disabled, but require a conditional use permit otherwise.) Policy Considerations: Through long-standing policy, San Rafael has made a commitment to provide housing for all segments of its community, including housing to meet the special needs of the disabled. The Housing Element of San Rafael’s General Plan 2020 provides: Goal 3. It is the goal of San Rafael to have a strong sense of community and responsibility in meeting housing needs. Historically, San Rafael has provided housing of all types to meet the varied needs of its population in settings that enhance the feeling of community. It is important to enhance our sense of community by identifying responsibilities of all sectors within the community (neighborhoods, business, non-profits, government, etc.) to effectively address the City’s housing needs and to assure effective application of Fair Housing laws. The intent in this approach is to continue to be purposeful and creative in finding ways to increase local funding resources and/or financially equivalent incentives for lower income and special needs housing, and to take a proactive approach in creating and responding to opportunities to achieve San Rafael’s housing goals. New development must be compatible with and enhance existing community character. San Rafael residents at the 2020 Visioning session stated that maintaining community diversity is one of their highest priorities. The City’s policies encompass two approaches. The first is that the City and its neighborhoods share a responsibility in helping to meet housing needs; investment in new housing and improvements should be distributed REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 6 throughout the city. Second, new housing development must recognize and enhance the design character of the surrounding neighborhood. In the end, future development is planned based on community wide needs, sound citywide policies, neighborhood involvement, capital improvements, and public facility and service capacity. This local policy advances the strong governmental policy found in the federal FHAA and ADA, and the California Health and Welfare Code, to promote the integration of disabled persons into the mainstream. At the same time, the policy recognizes the City’s goal to accommodate such housing in a manner consistent with the maintenance of the character of the surrounding neighborhoods. Options for Regulation: Based upon its research, including the authorities summarized briefly above, the City Attorney’s office has concluded that legally, it is possible for the City to regulate a group home use in residential zones to the extent the home is truly operated as a business or institutional use rather than as a “household” of persons living together, and provided that any regulations do not expressly or effectively discriminate against such a use based upon the disability of the owners and/or occupants. Therefore, taking into account the factual, legal and policy considerations set forth above, Staff proposes that the Commission consider three alternative approaches to the regulation of group homes. The pros and cons of these three approaches are summarized in Exhibit 2. Option 1: Classify Use as a Single Household and Adopt No Additional Regulation at Present. Staff’s research and information from operators and support agencies confirm that a Sober Living Environment is a predominant therapeutic model for recovery from alcohol and drug addiction. The SLE is a residence, usually a single-family home in a residential neighborhood, where the occupants are intended to live together as a mutually supportive household, sharing chores and abiding by a set of house rules which, among other things, require eviction of any resident who fails to maintain his or her sobriety. No actual treatments occur on the premises; therefore no license is required by the State of California. Proponents of SLE’s argue, and many courts have recognized, that the ability to live in a residential setting with a supportive group of persons recovering from substance abuse is an extremely important and successful component of the process of recovery from addiction. They argue tha,t regardless whether an “operator” manages the residence or the home is operated by a business entity, the residents of such an SLE are legally indistinguishable from a single “family” or “household,” so that no regulations may be imposed on their use that are not also imposed on every single family use in the zone. While this characterization is not undisputed, it is probably a valid portrayal of many group homes for the disabled. Therefore one approach to regulation, urged by advocates, operators and support services for the disabled, would be for the City to decline to adopt any special regulations for this use at present, allowing these group homes to be classified under the category of a single household or housekeeping unit. There are several advantages to this approach. First, this alternative would be the most supportive of the efforts of this disabled population to live inconspicuously throughout the community, and would promote the policies of the General Plan noted above. This option would recognize the efforts of the operators and residents of these homes to create a unified, sharing, and mutually supportive living environment to facilitate the recovery process. Second, additional regulation may not be necessary at this time. As noted above, staff has, at present, no evidence that the fears voiced by some neighbors have been or will be borne out if unlicensed group homes are permitted sans regulation in single family neighborhoods. In the 19 months since adoption of the moratorium, staff has received 13 Police Department complaints from neighbors regarding 200 and 201 Marin Street and two Code Enforcement complaints regarding an unlicensed group home in Terra Linda; however, in staff’s view, these complaints do not provide substantiation of any significant REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 7 problems caused by the presence of SLE’s or other unlicensed group homes for the disabled in residential zones of the City that would distinguish the use from other single family homes. Of the 13 complaints received for the Marin Street properties, all but two of the complaints were in response to abandoned vehicles or vehicles parked in a red zone. One complaint was for evening noise and another was a report of petty theft. Both the Code Enforcement complaints filed for an SLE in Terra Linda related to street parking. These impacts cannot be distinguished from similar impacts that would be created, for example, by a traditional single family home with a large family with multiple drivers, vehicles, and frequent guests. Such households are not uncommon in San Rafael and the City does not impose any special density, parking, or noise limitations on them. The City has Code Enforcement remedies to address true nuisance situations or code violations such as excessive noise or other disturbance of the peace in residential neighborhoods; and these remedies could similarly be relied upon instead of additional regulation of the group home use. Staff also notes that the City’s adoption of the moratorium has encouraged the establishment of a strong movement among substance abuse recovery advocates and providers to promote a high professional standard among SLE operators in Marin, as evidenced by the “Guidelines for Sober Living Environments” developed by Community Action Marin, the Marin Recovery Project, and the County of Marin. It is expected that the efforts of these entities will substantially help to advance the City’s interest in ensuring that SLE’s in San Rafael operate in a highly professional manner, as well as in monitoring the locations of the facilities in the Marin Recovery Project’s network of endorsed homes. (Exhibit 5.) Finally, a decision not to enact regulations at this time would not foreclose regulation at a later date; therefore, the City could “wait and see.” The law in this area is still evolving. Many cases involving housing for the disabled are litigated in federal court and some have been appealed all the way to the U.S. Supreme Court. During the moratorium, the City of Newport Beach has obtained a favorable result from a federal trial court in a case involving a challenge to that city’s aggressive group home regulations, and that case is now on appeal to the federal Court of Appeals for the 9th Circuit, the federal appellate court governing California. A decision in that case, which may be forthcoming within the next several months, would likely provide some additional helpful guidance as to the law governing regulation of licensed and unlicensed group homes for the disabled. While the possibility of negative impacts on the City from uncontrolled proliferation of unlicensed group homes is one of the main concerns staff has heard from residents, from the evidence available to staff, there does not appear to be an actual or threatened proliferation of this use in the City. Therefore, it is a policy decision whether the City should wade into the murky waters of regulating group homes for the disabled based merely upon speculative fears. For the foregoing reasons, staff has concluded that classifying the unlicensed group home use as a single household use and waiting to adopt any additional regulations is a very viable option for the City to consider. However, in response to the City Council’s direction to develop possible regulations, staff has proposed the Zoning Ordinance amendments described in Option 3 below. Staff does note that if the Commission recommends this option, staff will have to return to the Commission with a revised Resolution and Draft Zoning Ordinance amendment (the amendment would be limited to changing the definition of household). Option 2: Classify Use as a “Boarding House” and Regulate with Full Discretionary Review Process. At the other extreme, it appears that under applicable laws, it would be permissible to treat the business operation of a group home similarly to a traditional “boarding house.” Under San Rafael’s zoning ordinance, boarding houses are only permitted in medium and high density residential zones, and only with the grant of a conditional use permit. As noted above, the California Supreme Court has confirmed in City of Santa Barbara v. Adamson that cities legally may regulate boarding houses in residential zones. However, as held in that case, a true “household” of unrelated persons must be treated similarly REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 8 to a traditional family. Under this option then, it is crucial to distinguish between an unlicensed group home operating as a commercial or institutional use and one which is operating as a true “single household.” Staff believes that the City’s current definitions of boarding house and single household are not adequate to assist staff in objectively distinguishing between the business/boarding house use that can be regulated, and the household use that cannot. Therefore, staff has therefore developed revised definitions for this purpose, as follows: “Boarding (or rooming) house" means a structure or portion thereof where rooms, with or without meals, for two (2) or more persons are provided for compensation under separate oral or written rental agreements. Such rooms do not include complete cooking and sanitary facilities. Includes single-room occupancy developments, sororities, fraternities, and residential clubs. Does not include a dwelling unit occupied by a single household; a hotel; a motel; a bed and breakfast inn; a residential care facility, small; supportive or transitional housing (as defined in H&S Code sections 50675.2 and 50675.14); or a permanent, temporary, or rotating emergency shelter for the homeless. “Household” or “Housekeeping Unit, Single” unless otherwise defined by applicable law, means the functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit, including the joint use of and responsibility for common areas, and bona fide sharing of household expenses, activities, and responsibilities (e.g., meals, chores, household maintenance, etc.) and where, if the unit is rented, all adult residents have chosen to jointly occupy the entire premises of the dwelling unit, under a single written lease with no sub-leases or -rental agreements, with joint use and responsibility for the premises, and no set limit on the length of residence other than as set by the lease, and where the makeup of the household occupying the unit is determined by the residents of the unit rather than the landlord or property manager. Under these definitions, the key element that would objectively distinguish a household from a business operation of a group home is the requirement that if the unit is rented, all adult residents have chosen to occupy the entire premises of the dwelling unit jointly, under a single written lease with no sub-leases or sub-rental agreements. This is a definition that has been adopted by some other California cities, including Newport Beach, and approved by the California Attorney General. (86 Ops.Cal.Atty.Gen. 30 (2003).) The advantage of this alternative is that it provides the most visibility for the establishment of a new group home business, since the conditional use permit process requires notices and a public hearing. This visibility may provide some comfort to concerned neighbors. However, this visibility may be more theoretical than actual. It is evident to staff that there will be a large subset of group home operators who will urge that the occupants of their homes live together as a single household, and who will argue that they are not “businesses” at all, or that the business aspect of their operation does not negate the character of the use as a single household use. Since staff does not have the resources to conduct in- depth factual investigations in most cases, staff will likely have to take the operators at their word unless clear evidence to the contrary is available. As a result, even with the adoption of rigorous regulations, there will undoubtedly be SLE’s and other similar unlicensed group homes operating in residential neighborhoods that are not subject to such regulations. Moreover, the visibility of the conditional use permit process is simultaneously a disadvantage for potential operators and disabled residents of the homes, who may object to a perceived loss of privacy and see the public hearing requirement as inviting and encouraging discrimination against the users of the homes. REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 9 Another significant disadvantage of this alternative is that it would also impose the greatest demands on limited staff and Planning Commission time. Applying the conditional use permit process to a use serving the disabled would be complicated by the right of the applicant to make requests for reasonable accommodation. If unlicensed group homes for the disabled were not permitted at all in low-density residential zones, it is very likely that some group home applicants would nevertheless seek reasonable accommodation from this prohibition so that they could locate in the housing of their choice. As noted above, the City has only limited discretion in the reasonable accommodation process; the City would be required to grant a reasonable and necessary accommodation unless to do so would necessitate a fundamental alteration of the City’s zoning or other program or policy, or would impose undue financial or administrative burdens on the City, or would directly threaten the health and safety of other persons or property. While this does not mean that all requests for reasonable accommodation must be granted, it is likely that many should be granted, and a careful analysis by the City Attorney of the laws governing the disabled and reasonable accommodation would be required in every case in order to reach a determination. Therefore, with a conditional use permit requirement it is not unlikely that neighbors would seek the imposition of conditions on the permit that the City may not be able to lawfully impose if a request for reasonable accommodation is made, leaving staff and the Planning Commission powerless to satisfy neighbor concerns. For the foregoing reasons, Staff does not recommend adoption of this Option 2. However, should the Commission choose to recommend this option, staff will have to return to the Commission with a revised Resolution and a Draft Zoning Ordinance amendments. The revised amendments would be extensive and would take some time to draft. Option 3 (Staff Recommendation): Classify as a New Use and Enact Regulation with Nondiscretionary and Discretionary Review Processes. A third alternative, and staff’s recommendation if the City chooses to further regulate the use, is to treat a business operating an unlicensed group home for the disabled as a unique use akin to but distinguishable from a traditional boarding house, and to incorporate elements of reasonable accommodation into the regulatory scheme. Staff believes that this is a valid distinction in light of the significant role of this housing model in the treatment of the occupants’ disability. Therefore, staff’s recommended amendments to the Zoning Ordinance create a new classification for these homes, called “residential support facilities,” as follows: “Residential Support Facility, Small” means a dwelling unit or group of dwelling units not licensed by the State of California, in which six (6) or fewer persons (excluding persons employed or compensated as facility management or staff) reside who are not living together as a single household, each of whom is an individual with a disability. This is a business group residential use in that it is operated or managed by a person or persons or by a business entity for compensation on a nonprofit or for-profit basis. “Residential Support Facility, Large” means a dwelling unit or group of dwelling units not licensed by the State of California, in which seven (7) or more persons (excluding persons employed or compensated as facility management or staff) reside who are not living together as a single household, each of whom is an individual with a disability. This is a business group residential use in that it is operated or managed by a person or persons or by a business entity for compensation on a nonprofit or for-profit basis. Because these definitions would not apply to persons living together as a single household, the proposed amendments would also include the revised definitions of boarding house and household set forth above. REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 10 A flow chart illustrating the operation of this option is attached as Exhibit 3. Staff recommends permitting small residential support facilities in low-density as well as higher density residential districts as of right, as the City is required to do now with small residential care facilities licensed by the State. In staff’s view, not only would the impacts of these homes be similar to those arising from traditional single family household uses, but in addition it is highly likely that some group home applicants would otherwise seek reasonable accommodation to locate in these zones, and that many of those requests would have to be granted under the law. For large unlicensed residential support facilities and large licensed residential care facilities, the proposed amendments would permit those uses in residential zones subject to the grant of a nondiscretionary permit issued by staff, provided the applicants could meet certain established performance standards intended to mitigate possible adverse impacts of the group home use. The attached amendments propose the following performance standards: 1. Zoning. Large residential support or residential care facilities must comply with existing zoning requirements including property development standards for setbacks, lot coverage, building height and private yard; 2. Parking. Large residential support or residential care facilities would be required to meet the single family residential requirement for 2 covered off-street parking spaces, and to provide 1 additional covered/uncovered space for clients 7-10, plus 1 additional uncovered space for each 4 clients above 11, plus 1 additional covered/uncovered space for each on-site manager; 3. Building inspection to detect and correct existing building code violations. All living areas must be suitable for residential purposes, as determined by the building inspector. 4. Fire inspection to detect and correct existing fire code violations. The site must be free of hazardous materials and comply with fire code requirements, as determined by the Fire Department. 5. House rules. Large residential support or residential care facilities must establish house rules and “Good Neighbor” policies addressing such issues as noise, visitor parking, and property maintenance, to enhance the facility’s compatibility with, and mitigate disruption to, the surrounding neighborhood, including provision for 24-hour on-site manager(s) responsible for enforcement. The house rules would be filed with the City and available for public review. Applicants failing to meet the performance standards could still make a request for reasonable accommodation; however there should be fewer such applications, and less need for discretionary staff decisions and review by the Planning Commission. As with Option 2, there will undoubtedly be SLE’s and other unlicensed group homes operating in residential neighborhoods that are true households and therefore not subject to even the ministerial permit requirement. However, for the group homes that are operating as businesses, staff recommends this option because it would have the benefit of requiring some mitigation of possible adverse neighborhood impacts, while minimizing the City’s intrusion into the privacy of the applicants and reducing the number of applications requiring discretionary processing by the City. San Rafael General Plan 2020 Consistency: It is required that any project, including Zoning Ordinance amendments, be reviewed for consistency with the San Rafael General Plan 2020. It is important to note that General Plan consistency is determined by reviewing and weighing the goals and policies of all elements of the San Rafael General Plan 2020. Both the City’s General Plan and case law interpreting REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 11 general plan requirements recognize that the General Plan is a collection of competing goals and policies, which must be read together, as a whole and not in isolation, policy by policy. In reviewing a project for consistency with the General Plan, the City is required to ‘balance’ the competing goals and policies. Case law has determined that a project “need not be in perfect conformity with each and every policy” and that “no project could completely satisfy every policy stated in the General Plan, and that State law does not impose such a requirement.” Through the research, analysis and development of the proposed Zoning Ordinance amendments (Option 3 above and Exhibit 1), staff has considered the proposed amendments and their consistency with the San Rafael General Plan 2020. The pertinent and applicable policies have been weighed and staff has found that some of the policies and goals naturally conflict, such as policies providing opportunities for transitional housing and group homes in residential neighborhoods [H-8 (Housing Discrimination), H-13 (Special Needs), H-15 (House Sharing), G-2 (Variety of Housing), G-18 (Support for Special Needs Groups)] versus policies seeking to minimize impacts on residential neighborhoods [CD-2 (Neighborhood Identity). Staff recommends that overall the proposed amendments are consistent with the General Plan. A complete analysis of the project’s consistency (only as it relates to Option 3) with the pertinent General Plan 2020 policies and programs is presented in the General Plan consistency analysis table (Exhibit 4.) ENVIRONMENTAL DETERMINATION As required by state law, this project must be reviewed to determine the applicability of the California Environmental Quality Act (CEQA) and the need to assess potential environmental impacts. The project proposes changes to City regulations and policies, which would not result in a direct or indirect environmental impact. For this reason, the project is not subject to environmental review as it is covered by the “general rule” that CEQA applies only to projects that have the potential of causing a significant effect on the environment pursuant to CEQA Guidelines Section 15061(b)(3). NEIGHBORHOOD MEETING / CORRESPONDENCE As discussed in the background section, staff has provided for outreach to interested persons on all sides of the matter, including neighbors, neighborhood groups and operators, throughout the research, analysis and draft amendment process. Following the preparation of the draft amendments, the project was scheduled for review and recommendation by the Planning Commission. Notice of hearing for the project was conducted in accordance with noticing requirements contained in Chapter 29 of the Zoning Ordinance. A Notice of Public Hearing was published in the Marin Independent Journal, 15 days in advance of this hearing. In addition, staff emailed notice of this meeting to all interested parties that have asked to receive notification on this project Copies of all written public correspondence on the proposed project received at the time of the reproduction of this staff report (Nov 1st) are attached to this report as Exhibit 6. This includes two emails from residents in the Forbes neighborhood who express serious concern with allowing any sort of group home in residential neighborhoods. In addition, a letter from a local attorney representing the Gerstle Park Neighborhood Association was submitted following the July community meeting and make various suggestions and comments about the draft ordinance amendment Any further correspondence received after the distribution of the staff report and the hearing, will be forwarded to the Commission by separate cover. REPORT TO PLANNING COMMISSION - Case No: ZO11-001 Page 12 CONCLUSION As directed by the City Council, staff has researched the laws governing regulation of unlicensed group homes and has developed a recommendation to add a new classification to the Zoning Ordinance describing this use as a “Residential Support Facility” for the disabled, and imposing reasonable regulations to minimize the potential adverse effects of the use in residential neighborhoods. Notably, however, during the moratorium staff has made efforts to determine the impact this use is having on San Rafael and has obtained no evidence that the use is posing any unique problems on the City’s residential neighborhoods. This fact, in addition to the efforts to self-regulate made during the last 19 months by community organizations such as the Marin Recovery Project, and the pending appeal of a challenge to another California city’s group home regulations, suggest to staff that the City could benefit by declining to adopt further regulations at this time and taking a “wait and see” approach, with the possibility of revisiting this issue in the future, OPTIONS The Planning Commission has the following options: 1. Recommend approval to the City Council of the draft Zoning Ordinance Amendments as presented (Option 3); or 2. Recommend approval to the City Council of the draft Zoning Ordinance Amendments (Option 3) with certain modifications or changes; or. 3. Recommend approval to the City Council of Option 1 (Classify use as single household and adopt no additional regulation at present) and direct staff to return to a future meeting with a revised Resolution and Zoning Ordinance amendments; or. 4. Recommend approval to the City Council of Option 2 (Classify use as “boarding house” and regulate with full discretionary review) and direct staff to return to a future meeting with a revised Resolution and Zoning Ordinance amendments; or. 5. Continue the applications to allow the staff to address any of the Commission’s comments or concerns; or 6. Recommend denial of the draft Zoning Ordinance amendments. EXHIBITS 1. Draft Resolution 2. Table summarizing policy options considered by staff 3. Option 3 Flow Chart 4. General Plan 2020 Consistency Table 5. Marin Recovery Project Guidelines for SLE’s 6. Correspondence Received Through 11/1/12