Who may obtain a building permit? Since the federal Fair Housing Act "the Act" was amended by Congress in to add protections for persons with disabilities and families with children, there has been a great deal of litigation concerning the Act's effect on the ability of local governments to exercise control over group living arrangements, particularly for persons with disabilities.
The Department of Justice has taken an active part in much of this litigation, often following referral of a matter by the Department of Housing and Urban Development "HUD".
Following is an overview of the Fair Housing Act's requirements in this area. The Fair Housing Act prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disability.
The Act does not pre-empt local zoning laws. However, the Act applies to municipalities and other local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities. The Fair Housing Act makes it unlawful to: Utilize land use policies or actions that treat groups of persons with disabilities less favorably than groups of non-disabled persons.
An example would be an ordinance prohibiting housing for persons with disabilities or a specific type of disability, such as mental illness, from locating in a particular area, while allowing other groups of unrelated individuals to live together in that area. Take action against, or deny a permit, for a home because of the disability of individuals who live or would live there.
An example would be denying a building permit for a home because it was intended to provide housing for persons with mental retardation. Refuse to make reasonable accommodations in land use and zoning policies and procedures where such accommodations may be necessary to afford persons or groups of persons with disabilities an equal opportunity to use and enjoy housing.
The Fair Housing Act requires jurisdictions to offer reasonable accommodation to meet the needs of disabled persons. What constitutes a reasonable accommodation is a case-by-case determination.
Not all requested modifications of rules or policies are reasonable. If a requested modification imposes an undue financial or administrative burden on a local government, or if a modification creates a fundamental alteration in a local government's land use and zoning scheme, it is not a "reasonable" accommodation.
The Fair Housing Act does not protect persons who currently use illegal drugs, persons who have been convicted of the manufacture or sale of illegal drugs, or persons with or without disabilities who present a direct threat to the persons or property of others.
HUD and the Department of Justice encourage parties to group home disputes to explore all reasonable dispute resolution procedures, like mediation, as alternatives to litigation. Adapted from the Joint Statement of the Department of Justice and the Department of Housing and Urban Development August 18, Definitions Alcoholism or Drug Abuse Recovery or Treatment facility - An adult alcoholism or drug abuse recovery or treatment facility that is licensed pursuant to Section Conditional use permit CUP - A discretionary approval usually granted by the planning commission which allows a use or activity not allowed as a matter of right, based on specified findings.
Group home - A facility that is being used as a supportive living environment for persons who are considered handicapped under state or federal law. Handicapped - As more specifically defined under the fair housing laws, a person who has a physical or mental impairment that limits one 1 or more major life activities, a person who is regarded as having that type of impairment, or a person who has a record of that type of impairment, not including current, illegal use of a controlled substance.
Integral facilities - Any combination of two 2 or more group homes which may or may not be located on the same or contiguous parcels of land, that are under the control and management of the same owner, operator, management company or licensee or any affiliate of any of them, and are integrated components of one 1 operation shall be referred to as integral facilities and shall be considered one 1 facility for purposes of applying federal, state and local laws to its operation.
Examples of such integral facilities include, but are not limited to, the provision of housing in one 1 facility and recovery programming, treatment, meals, or any other service or services to program participants in another facility or facilities or by assigning staff or a consultant or consultants to provide services to the same program participants in more than one 1 licensed or unlicensed facility.
Integral uses - Any two 2 or more residential care programs commonly administered by the same owner, operator, management company or licensee, or any affiliate of any of them, in a manner in which participants in two 2 or more care programs participate simultaneously in any care or recovery activity or activities so commonly administered. Any such integral use shall be considered one 1 use for purposes of applying federal, state and local laws to its operation.
Operator - A company, business or individual who provides residential services, i. Operator does not include a property owner or property manager that exclusively handles real estate contracting, property management and leasing of the property and that does not otherwise meet the definition of operator. Permitted use - Any use allowed in a land use zoning district without requiring a discretionary approval, and subject to the provisions applicable to that district. Single Housekeeping Unit - The occupants of a dwelling unit have established ties and familiarity with each other, jointly use common areas, interact with each other, share meals, household activities, and expenses and responsibilities; membership in the single housekeeping unit is fairly stable as opposed to transient, members have some control over who becomes a member of the household, and the residential activities of the household are conducted on a nonprofit basis.
There is a rebuttable presumption that integral facilities do not constitute single housekeeping units. Additional indicia that a household is not operating as a single housekeeping unit include but are not limited to: Sober living homes shall not include the following: Residential Care facilities that provide drug and or alcohol abuse treatment are licensed by DHCS and are known as alcoholism or drug abuse recovery or treatment facilities.
Homes are required to be licensed by the DHCS when at least one of the following services is provided: A Sober Living Home is a home used by people recovering from substance abuse, which serves as an interim environment between rehab and their future lives.
These homes are not allowed to provide the same services as a DHCS licensed alcoholism or drug abuse recovery or treatment facility. Sober Living Homes are primarily meant to provide housing for people who have just come out of rehab and need a place to live that is structured and supportive for those in recovery.
How the City regulates sober living homes. The general requirements are as follows: Group homes, including sober living homes, with 6 or fewer residents, plus one house manager are allowed to locate in all residential zones with a special use permit SUP , which requires: Group homes, sober living homes, and DHCS licensed alcoholism or drug abuse recovery or treatment facilities with 7 or more residents may locate only in the multiple-family residential zones.
The general requirements are: The state of California has determined that licensed facilities serving six or fewer residents are residential uses under state law, and cannot be subject to zoning regulations that do not apply generally to all residences in an area. Therefore, Residential Care Facilities serving six or fewer persons are permitted in the R1 zone. Residential Care Facilities serving six or fewer persons are permitted in multifamily zones pursuant to state law. Pursuant to Federal regulations, the city is required to grant disabled individuals reasonable accommodation from zoning restrictions when necessary to allow equal use or enjoyment of a dwelling.
An accommodation is reasonable if it does not cause undue hardship, fiscal, or administrative burdens on the municipality, or does not undermine the basic purpose a zoning ordinance seeks to achieve.
A three-part test is applied to determining whether a reasonable accommodation is necessary: The city must make exceptions in its zoning rules to afford people with disabilities the same access to housing as those who are without disabilities.
However, fundamental or substantial modifications from municipal or zoning codes are not required. When a state license is required. The DHCS licenses facilities providing hour residential nonmedical services to eligible adults who are recovering from alcohol or other drug misuse or abuse.
Facilities are required to be licensed by the DHCS when they offer at least one of the following services: