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RES-10361 Denying Request for Reasonable Accommodation for Sober Living FacilityRESOLUTION NO. 10361 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ORANGE DENYING A REQUEST FOR REASONABLE ACCOMMODATION FROM THE NUMERICAL LIMIT OF SIX TENANTS FOR A SOBER LIVING FACILITY LOCATED IN THE R- l-7 ZONE.Applicant: Step- Up Recovery Appeal No.: 0526-09 WHEREAS, the Applicant filed Variance No. 2195-08 requesting an accommodation from the Orange Municipal Code's numerical limit of six tenants (seven with a house manager) on sober living facilities that are located in single-family neighborhoods (hereafter, the Variance); and WHEREAS, the Variance was processed in the time and manner prescribed by federal, state and local laws; and WHEREAS, on January 5, 2009, the Planning Commission conducted a duly advertised public hearing, at which time interested persons had an opportunity to testify either in support of or opposition to the Variance and determined by a 5-0 vote to deny the Variance; and WHEREAS, the Applicant filed Appeal No. 0526-09 in a timely manner, appealing the Planning Commission's denial of the Variance to the City Council; and WHEREAS, a duly noticed hearing was scheduled for February 24, 2009, but at the request of the Applicant was continued in order for the Applicant to be represented by legal counsel; and WHEREAS, on March 24, 2009, the City Council conducted a duly advertised public hearing, at which time interested persons had an opportunity to testify either in support of or in opposition to the Variance and determined by a 5-0 vote to deny the Variance.NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Orange that based upon substantial evidence in the record that Appeal No. 0526-09 shall be denied and that the Planning Commission' A. Background The Variance sought is for property located at 235 S. Craig Street (the Property). The Property is on a cul-de-sac consisting of 30 homes. The zoning for the neighborhood is R-1-7 single-family residential with 7,000 square foot lots). Although labeled as a variance, the request is in reality a request for reasonable accommodation under fair housing laws and the standards applicable to such a request were used in determining the appropriateness of the request.According to neighbors, the home was originally used for women who were recovering addicts and they were quiet, of a small number and did not create parking issues in the neighborhood. The home was purchased by the current owners, Daniel and Debi Commerford 50% interest) and Lucy Parker (50% interest) (hereafter, Property Owners). Daniel Commerford is also the President of Step-Up Recovery and Debi Commerford and Lucy Parker are employed by Step-Up Recovery.The Property Owners remodeled the home in late 2006/early 2007, converting the den into a bedroom and it is around this time that the City began receiving complaints from the neighbors. The property was inspected on February 22, 2007, by City code enforcement staff.Eighteen beds were found in the home, 9 in the converted den and the Assistant Manager of the Property stated there were currently 15 men residing on the property. Several building and uniform housing code violations were found.The Applicant was informed that the City only permitted six individual tenants, plus a house manager to reside in the facility. Despite repeated requests to do so, the Applicant refused to lower the number of tenants and comply with the City's code. The City filed a misdemeanor complaint on October 16,2007, due to the Applicant's failure to lower the number of tenants or to seek an accommodation from the limit of six tenants.On March 6, 2008, the Applicant filed a request for a reasonable accommodation!conditional use permit. The City treated it as a request for reasonable accommodation but under the variance procedure. Since the Applicant sought the reasonable accommodation as requested, the City dismissed its misdemeanor complaint pending the City's decision on the Variance. The only reason initially given for the Variance was the Applicant's claim that the tenants "live together as a family and constitute a single housekeeping unit." Subsequently, the Applicant claimed that 12 tenants were necessary for the financial viability of the facility and therapeutic reasons.During the course of this process the City received numerous public comments,numerous e-mails from City residents, and extensive documentation. Nearly all of the e-mails from residents in the neighborhood were against the Variance for a variety of reasons, but primarily because of an inordinate number of cars associated with the facility; an inordinate amount of second-hand smoke coming from the backyard of the facility onto other properties;loud conversation, often with cursing: an inability to ascertain who lived at the home and who did not because the tenants often changed; and one neighbor complained of tenants habitually trespassing through his backyard as of the Property interfered with their use and enjoyment of their own backyards and that the use had changed the neighborhood dynamics. Although some people in opposition did not believe a sober living facility should operate in a single family neighborhood at all, the Orange Municipal Code (OMe) permits a sober living facility to locate in an R-1-7 as a matter of right provided that it has not more than seven tenants, one of which is a house manager. Sober living facilities exceeding six tenants are also permitted under the OMC in the R-3 and R-4 multi- family residential zones with a conditional use permit.1. The Applicant's Tenants Do Not Function as a Familv or a Single-Housekeeping Unit.There was significant testimony from individuals who had resided in various sober living facilities, including the Applicant's, that they considered their fellow tenants to be family". There was testimony that members of the facility went on outings together. The Applicant stated that the average length of stay at the facility was 1-3 years. It is without question that such facilities are designed to provide a supportive environment and that the tenants provide each other with such support. The tenants also appear to jointly use common areas and interact with each other. These are interactions which are indicia of a family as defined by the OMC.However, the Applicant has shown little more family function than one might see in a college dormitory or even a boarding house. Tenants in those facilities may study together, use a common area, support each other's academic venture, engage in various activities together,stay 1-3 years, etc. The substantial weight of the evidence is that the tenants do not function as a family as defined by the OMC. The Applicant' s tenants do not have established ties or familiarity with each other when they move in. Tenants end up living on the Property in a variety of ways, self-check-in, as a final step of an intensive detoxification program, as a condition of probation and/or in lieu of being incarcerated. They live at the Property because they are trying to recover from an addiction and/or because they potentially face incarceration if they don't live in a sober living facility. Some are referred to the Property by the County Probation Department. Indeed, the goal for most tenants, if not all, is to get their lives in order so that they can leave the Property.There is no evidence that suggests the tenants have any control over who lives on the Property or even a say in their roommate. That decision is apparently made by the corporate Applicant perhaps with input from the house manager. Notwithstanding Applicant's contention to the contrary, this is not the Adamson v. Santa Barbara situation in which 12 people determined that they wanted to live together.The tenants do not share expenses or meals. As a condition of being a tenant on the Property a tenant is required to enter into a separate agreement obligating the tenant to pay a specified rent to the corporate Applicant. The tenants don't share the cost of the rent, but rather are solely responsible for their individual shares. One tenant, an Applicant-employed house manager, pays no rent; another apparently pays a reduced rent, while others pay full rents. The amount of each tenant's rent is not The facility has a coin-operated phone and coin-operated washer and dryer, indicating that the tenants also wash their clothes separately. While tenants may do chores around the Property,none of the tenants have any property interest in the Property, apparently not even a leasehold interest.There was testimony from Applicant proponents that the tenants often shared meals.However, the Applicant stated that each tenant is responsible for his own food. The four refrigerators in the facility undermine statements that meals are often shared. There is a note written on the white board inside the facility which states, "If its [sic] not yours don't eat or drink it", which further undermines the contention that meals are shared. While tenants may eat together, this is not sharing of meals in the family sense.Tenants must abide by specified rules and pay rent or may be kicked out of the Property.In the case of violating the rule against using any drug or alcohol a tenant is kicked out for a single offense. While these types of rules are necessary and appropriate for a sober living facility and families have rules as well, forcing someone to leave the Property because of a violation of a rule is not indicia of a family. Tenants must sign in and out. Many of them have probation officers. There is a dry-erase board hung in the Property which states, " Do not write on board, Management use only."The membership of the household is not stable. The Applicant' s representation that tenants stay an average from 1-3 years is not credible. And even if Applicant's statement was true, that length of stay would be much shorter than the average family. But undermining Applicant's contentions are the fact that rent is charged on a weekly basis and the program that the Applicant advertises for the Property is only 90 days. A 2005 UCLA study indicates that 65-70% of persons who enter drug treatment programs do not finish, meaning in this case they would not even stay 90 days. A study of Oxford Houses ( which the Applicant often compared itself to) found that participants spent an average of 256 days in an Oxford House or about 8 months. One of the chief complaints of the neighbors of the Property was that the tenants changed so often that they did not know who belonged on the property or in the neighborhood.The same Oxford House study appeared to indicate that very few sober living tenants moved in together after they left, choosing instead to move into their own apartment or to move back with relatives, a spouse or a friend. While transiency is not an unexpected feature of a sober living facility and is an accepted aspect of the operation, it also is a feature which is inconsistent with the City's definition ofa family.Even the Applicant was not entirely consistent on this issue, as the Applicant's attorney stated that, "No one is saying they are operating as a family."2. The Applicant's Request for 12 is Not Reasonably Necessary.The Applicant contended that it needed 12 tenants for primarily two additional reasons:1) to make the operation financially viable; and (2) to create the type of supportive structure that is necessary to enhance a. Financial viability. The Applicant's testimony and document submittals to support its position that 12 tenants were necessary to sustain its financial viability was contradictory, lacking documentary support and unreliable. It appears from the record that the Applicant initially refused to provide any information as to financial need essentially contending it was not the City's business. The Applicant stated, "The only relevant consider [sic] is whether having 12 persons in recovery residing at 235 S. Craig Drive constitutes a single housekeeping unit." Thus, on the one hand the Applicant argues that the City should make a reasonable accommodation because it needs 12 tenants to make the operation financially viable, but then on the other takes the position that financial viability is not a consideration. When the Applicant does first provide financial information, it is simply a representation from the Applicant's attorney in a letter, void of any supporting documentation. As was clearly brought forth in the record, the revenues stated by the Applicant's attorney were completely inconsistent and dramatically understated in relation to the information posted on the Applicant's website. And then at the Planning Commission hearing the Applicant testified to losses that were over double what was contained in the Applicant's attorney's letter. Six days before the continued hearing and over a year since the Applicant submitted its request for reasonable accommodation, the Applicant submits an Expense Summary Sheet, which it contends again shows it is losing money, but the stated losses are somewhere between what the Applicant's attorney stated in his letter and what the Applicant testified to at the Planning Commission hearing. While the revenues shown in the Expense Summary Sheet are in line with what the City had estimated based on information derived from the Applicant's website, they are nearly double what the Applicant's attorney first represented. Although left with little time to substantiate the claims on the Expense Summary Sheet, the record evidences that while the Applicant claims that the facility shares some overhead expenses with one other sober living facility operated by the Applicant, the Applicant's own web site indicates that it actually owns four sober living facilities. No explanation was ever offered by the Applicant for this discrepancy. In addition, the record points to the conclusion that the $4,000 rent is at least $700 or 21 % over market. The record also reflects several homes in the City that had four bedrooms and were renting for less than $3,000. The Applicant did not rebut the staff report's conclusion that the rent was significantly higher than the market. The amount of the rent being paid by the Applicant is also suspect because it apparently is not driven by normal market forces in that the individual co-owners of the home are all employees or officers of the Applicant and one is the President. The President would likely have the final say in the amount of the rent that the Applicant pays and the payment is, at least in part, going to the President's personal account.Thus, the corporate Applicant is essentially setting its own rent and the Applicant's President and employees are personally financial benefitting from the corporate payments.It is also of significance that evidence in the record indicates that the Property had been operating as a sober living facility for a number of years with far fewer tenants. If there is a financial hardship, to a significant degree it has been self-created by the Applicant, which purchased a fairly expensive home and then spent even more money remodeling it so it expand its tenant base. The Applicant undertook all of these expenses without first seeking a reasonable accommodation and at least initially chose to violate the City's laws rather than request an accommodation from them. Because the information provided by Applicant has clearly been shown to be unreliable; the Applicant has in general refused to respond to the City's request for documentation supporting its claim of financial need and/or submitted documentation at the 11th hour; failed to respond to repeated discrepancies in its financial reporting; and it appears that to some degree the Applicant created its own financial hardship, if one exists, the weight of the evidence is that an accommodation from the numerical limit of six is not reasonably necessary for financial reasons. b. 12 Tenants Are Not Reasonably Necessary to Create a Supportive Living Environment. The record contains expert testimony that fewer than even six tenants can provide the supportive living environment necessary to enhance chances for recovery. Dr. Michael Gales, M.D., a chemical dependency expert, stated that it was "true beyond any question", that a drug and alcohol rehabilitation program can be operated with as few as six clients. The Applicant submitted a document entitled "Expert Report: Leonard Jason, PhD", which was submitted for a court case "involving an Oxford House in Kansas" which concluded that larger Oxford Houses of seven or more residents had advantages over limiting the size to six or fewer. While the data and studies used by Dr. Jason to form his opinion were included in the Applicant's submittal, Dr. Jason's own credentials related to addiction recovery were not submitted as part of the record. In any event, the OMC does permit seven residents, the demarcation chosen by Dr. Jason as having an advantage over smaller homes. If anything Dr. Jason's report stands for the proposition that the OMC's limit of seven is sufficient for a supportive living environment. In addition, Dr. Gales opined that placing too many recovering addicts in a single home could actually be detrimental. For most people, 12 adults living in a single home of this size, disabled or not, would be considered overcrowded. What can be said is that the appropriate number of tenants in any particular sober living facility will be fact-based. Obviously the size of the facility, the proportion of house managers and supervisors to tenants, and other factors will determine what might be an optimum size. But what might be the optimum to create a supportive living environment is not necessarily what is reasonably necessary. Even the Applicant stated that only two per bedroom were necessary for therapeutic reasons, yet the Applicant's request would result in four tenants in one bedroom and three in another. At least for therapeutic reasons, the Applicant thus has acknowledged that only eight tenants (two to a bedroom) and a house manager in the fifth bedroom, for a total of 9 would be reasonably necessary. In addition, the Applicant converted a den to a bedroom thereby creating its own need for four of the additional tenants. If the Applicant had not done the conversion, it would have had a four-bedroom home and been able to place the house manager in one bedroom and two tenants in each of the other three bedrooms, been in compliance with the Orange Municipal Code and achieved the necessary therapeutic living environment that even it stated (two to a bedroom) was necessary and that Dr. Jason' s report stated had an advantage over limiting the size to six or The Applicant's contention that having 12 tenants on the Property makes it more likely that there will be someone at the Property for others to talk to in time of need is certainly true. But a household of seven adults, which is allowed under the Orange Municipal Code, including one who is a full-time house manager, would be reasonably sufficient to insure there would be someone at the Property to talk to as well.Group support is likely an essential element of many group home situations. State-licensed group homes in single-family neighborhoods, including those serving clients with addictions, are limited by their state licenses to six clients and a house manager. These group homes have successfully existed in single-family neighborhoods for decades. There is no reason to believe that a similar number would not achieve the group support that is reasonably necessary for the Applicant's Property.3. The Requested Accommodation Would Fundamentallv Alter the City' s Zoning Scheme.The requested accommodation is a dramatic departure from the City' s zoning code.Initially, the Orange Municipal Code limits the number of individual rental agreements in single family homes to two. A dwelling unit with three or more separate rental agreements is considered a boarding house and not allowed in the R-1-7 zone or any single-family zone.Boarding houses are permitted in multi- family neighborhoods with a conditional use permit.The requested accommodation for 12 tenants is six times the number allowed for the non-disabled in the R-1-7 zone.Second, the OMC has a built-in accommodation for unlicensed homes that are serving the disabled. It permits up to seven separate rental agreements for such homes (six clients and a house manager), which is three times the number provided for the non-disabled. The requested reasonable accommodation for 12 is nearly twice that number.The facility is located in a quiet single-family neighborhood on a cul-de-sac street.Neighbors have complained about the number of cars associated with the Property, counting nine on one occasion. The Applicant appeared to acknowledge at the hearing that the number of cars were a problem, but introduced no evidence as to exactly how many cars were associated with the Property or any suggestions on how to resolve the parking problem. The use of the Property for 12 tenants who could all potentially drive would result in the Property taking up an inordinate amount of parking. Neighbors testified that lately tenants had been parking their cars in other neighborhoods and either walking in or commuting in with other tenants to the Property. This appears to only have been recently done and this simply moves the problem to another residential neighborhood. Further evidence of the inordinate number of cars that can be associated with such a use was included in the record with respect to another sober living facility in the City operated by the Applicant. The house manager of that facility said that they had an oral agreement with the church across the street to park their cars There are likely relatively few homes with this many people in a single- family neighborhood in the City, at least that are operating legally and perhaps none that contain 12 adults. This is borne out by u.s. Census information and other information contained in the record. And as noted, with the accommodation requested by the Applicant, this Property would have the potential to contain 12 adults all with cars. The Property can only accommodate four cars, leaving potentially eight cars out on the street.The use has and would continue to disrupt the neighbors' reasonable expectation of quiet and enjoyment of their own homes. The record contains substantial evidence that the Property's tenants created a great deal of second-hand smoke which drifts into neighboring yards. The tenants engage in loud and often profane discussions. The number of police contacts at the Property is extraordinary for one single-family home. An incident which occurred on February 20th of this year resulted in an expensive response by City police and fire personnel. These incidents negatively impact and disrupt the use and enjoyment by the neighbors of their own homes and can understandably cause the neighborhood to be concerned.This type of suburban single-family neighborhood is not designed with the anticipation that there will be 12 adults living in a single home which functions more like a boarding house than a family.The City has significant experience with the problems posed by large numbers of adult tenants living in single family neighborhoods. In some neighborhoods on the east end of the City large numbers of adults were residing in single homes causing neighborhood complaints of increased noise, lack of parking and an inability to ascertain who lived in the neighborhood.Some homeowners threatened to leave the City. The situation garnered significant negative print and electronic media coverage. The same type of overcrowding complaints from neighbors arose from large numbers of student tenants living in single-family homes in and around Chapman University. These two situations led to the City adopting its Boarding House Ordinance. Whether the overcrowding of a single family home is comprised of students, non-disabled adults or tenants of a sober living facility, the complaints from the neighbors are consistent-increased noise, parking problems, not knowing who belongs in the neighborhood and a noticeable change in the neighborhood dynamics. There were also claims of a decline in property values, although this impact was not established in the record as to the Property. The primary point, however, is not whether property values decline, but rather whether the value of properties as homes for families is lessened and for the families living in neighboring properties this has certainly been the case in all of these overcrowding situations, including the Property.Indeed, a property's value, may actually increase if it could be rented out to large numbers of tenants. But in creating single-family neighborhoods, the City attempts to create an environment in which families can thrive. Placing large numbers of tenants in single-family homes, while perhaps profitable for a property owner, comes at a cost to the quiet use and enjoyment that families anticipate when they move into single-family neighborhoods.Although the testimony of the neighbors is not entirely consistent on this issue, based on the City's record of complaints, it appears that this neighborhood was able to function as a single- family neighborhood with a sober living facility use for a lengthy period of time prior to the expansion of the use by the Applicant. There is evidence in the record that prior to the conversion of the den into a which significantly expanded the number of tenants housed on the Property, that there were few complaints from the neighbors. Some of the neighbors did express some fears regarding the tenants, but these fears cannot be completely dismissed as unfounded because as the record and the testimony indicated, many of the tenants that reside in sober living facilities are convicted criminals with significant criminal history and at least four tenants at the Property had been in criminal street gangs. Many of the neighbors that testified had personal experience with addictions in their own families. Although many neighbors did not believe this type of a facility belonged in the neighborhood at all, many realized the need for these types of facilities and their value, as does the City Council. And at least as to some of the neighbors that testified at the hearings, they appeared ready to accept a seven-tenant sober living facility in the neighborhood,which the City Council has determined can operate on this Property as a matter of right. This,and the fact that neighbor complaints are so consistent with complaints from other non-disabled overcrowding situations, is evidence that many of the neighbor concerns have arisen out of the number of tenants and their impacts and not the disability of the tenants.ADOPTED this 14th day of April, 2009. ATTEST:o City Clerk, City of r e I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Resolution was duly and regularly adopted by the City Council of the City of Orange at a regular meeting thereof held on the 14th day of April, 2009, by the following vote: AYES: NOES: ABSENT:ABSTAIN:COUNCILMEMBERS: Smith, Murphy, Cavecche, Dumitru, Bilodeau COUNCILMEMBERS: None COUNCILMEMBERS: None COUNCILMEMBERS: