HomeMy WebLinkAboutResolution 2014-42 expressing support for the City of Newpor 1 �+I4trr/
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Meeting Date:7/21/2014
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CITY OF HUNTINGTON BEACH
REQUEST FOR. CITY COUNCIL ACTION
MEETING DATE: 7/21/2014
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Jennifer McGrath, City Attorney
PREPARED BY: Jennifer McGrath, City Attorney
SUBJECT: Adopt Resolution No. 2014-42 expressing support for the City of Newport
Beach's Petition for U.S. Supreme Court Review of the Ninth Circuit's Decision in
Pacific Shores, LLC et al., v. City of Newport Beach
Statement of Issue:
The City of Newport Beach petitioned the United States Supreme Court to request review of a Ninth
Circuit Court decision wherein the Court overturned an ordinance regulating Group Homes; Pacific
Shores, LLC et al., v City of Newport Beach. The City of Newport Beach has requested several
cities in California adopt a resolution urging the Supreme Court to hear the appeal.
Financial Impact:
Not applicable.
Recommended Action:
Adopt Resolution No. 2014-42, "A Resolution of the City Council of the City of Huntington Beach
Expressing Support for the City of Newport Beach's Petition for U.S. Supreme Court Review of the
Ninth Circuit's Decision in Pacific Shores, LLC et al., v. City of Newport Beach."
Alternative Action(s):
Do not adopt Resolution No. 2014-42, "A Resolution of the City Council of the City of Huntington
Beach Expressing Support for the City of Newport Beach's Petition for U.S. Supreme Court Review
of the Ninth Circuit's Decision in Pacific Shores, LLC et al., v. City of Newport Beach."
Analysis:
The Ninth Circuit Court of Appeal overturned an ordinance of Newport Beach regulating group
homes. Specifically the court found a discriminatory intent of the Newport Beach City Council in
adopting the ordinance even though the ordinance was not discriminating on its face.
On January 22, 2008, the City of Newport Beach, California, enacted Ordinance No. 2008-05 to
address perceived concerns caused by transients living in residential neighborhoods. The
Ordinance redefined certain residential categories that are permitted to occupy various.zones of the
city. Such categories, as relevant here, included the "single housekeeping unit," the "group
residential" units, and "residential care facilities." Although single housekeeping units are allowed in
any residential district in Newport Beach, group residential units are prohibited; residential care
facilities, on the other hand, whether pre-existing the Ordinance or opened thereafter, may occupy
any residential zone after obtaining a use permit or seeking a reasonable accommodation.
Premises occupied by recovering addicts may fail to qualify as a "single housekeeping unit" or a
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Dept. ID CA 14-008 Page 2 of 2
Meeting Date:7/21/2014
"residential care facility," on a case-by-case basis, but the definitions do not exclude disabled
individuals as a matter of course.
Three treatment home operators (Plaintiffs) sued the City of Newport Beach in U.S. District Court to
overturn Ordinance No. 2008-5. Plaintiffs—occupants and owners of group homes that qualify as
residential care facilities—charged that the Ordinance discriminates against them on the basis of
disability in violation of the Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the California Fair Employment and Housing Act,
Cal. Gov't Code § 12900 et seq., and the Fourteenth Amendment. Before the district court, they
advanced both disparate treatment and disparate impact as theories of liability. The City of Newport
Beach successfully sought summary judgment on the disparate treatment claims. In its disposition,
the district court concluded that the plaintiffs "failed to identify any evidence showing that [disabled
individuals] were treated differently than similarly situated non-disabled individuals" under the
"facially neutral" Ordinance.
The U.S. District Court granted a motion for summary judgment in the city's favor, which caused the
three treatment home operators to file an appeal with the Ninth Circuit. A three-judge panel of the
Ninth Circuit sided with the three treatment home operators against the City and in the process held
that a neutral law applied in a neutral manner may be discriminatory if it was adopted with an
alleged discriminatory intent.
At this time, the City of Newport Beach is seeking support from other cities based on their assertion
that the Ninth Circuit's decision weakens all cities' rights under California Constitution Article 11,
Section 7 to make and enforce local ordinances and regulations, because the dissent held `facially
neutral legislation can generate civil liability without evidence of discriminatory effect'. The City of
Newport Beach has petitioned U.S. Supreme Court review of the Ninth Circuits decision in Pacific
Shores Properties, LLC, et al. v. City of Newport Beach (Pacific Shores), and believes it is
important for other cities to support Newport Beach's efforts to ensure municipalities retain the right
to adopt zoning regulations that are non discriminatory.
Environmental Status:
N/A
Strategic Plan Goal:
Enhance and maintain public safety
Attachment(s):
1. Resolution No. 2014-42.
2. Fact Sheet from Newport Beach regarding Group Residential uses.
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ATTACnMENT # 1
RESOLUTION NO. 2014-42
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH EXPRESSING SUPPORT FOR
THE CITY OF NEWPORT BEACITS PETITION FOR U.S. SUPREME COURT
REVIEW OF THE NINTH CIRCUIT'S DECISION IN
PACIFIC SHORES, LLC ET AL., v. CITY OF NEWPORT BEACH
WHEREAS, on January 22, 2008, the City of Newport Beach adopted an ordinance
(Ordinance No. 2008-5), which established zoning regulations for transients living in residential
.neighborhoods; and
Ordinance No. 2008-5 provided that: (i) a State-licensed treatment home serving six or
fewer persons is allowed by right in all residential districts; (ii) new"seven and oveFtreatment
homes (licensed or unlicensed) and all new unlicensed treatment homes which do not operate as
single housekeeping units (regardless of size) are allowed in multi-family residential zones (R-3
and above), with a Use Permit; (iii) a series of small licensed treatment homes linked together in
management created one larger`integral'facility and limited these facilities to multi-family
residential zones with a Use Permit; and (iv) a person or operator of any group residential use
may apply for and receive reasonable accommodation from the zoning regulations following a
determination by an independent hearing officer; and
Three treatment home operators sued the City of Newport Beach in U.S. District Court to
overturn Ordinance No. 2008-5; the U.S. District Court granted a motion for summary judgment
in the citys favor, which caused the three treatment home operators to file an appeal with the
Ninth Circuit; and
A three judge panel of the Ninth Circuit sided with the three treatment home operators against
the city and in the process held that a neutral law applied in a neutral manner may be
discriminatory if it was adopted with an alleged discriminatory intent; and
The Ninth Circuit's decision weakens all cities rights under California Constitution Article 11,
Section 7 to make and enforce local ordinances and regulations, because the dissent held`Tacially
neutral legislation can generate civil liability without evidence of discriminatory effect"and
The City of Newport Beach has petitioned U.S. Supreme Court review of the Ninth Circuit.'s
decision in Pacific Shores Properties, LLC, et al. v. City of Newport Beach (Pacific Shores), and
it is important for cities to support Newport Beach's efforts to ensure municipalities retain the
right to adopt zoning regulations that are non discriminatory.
NOW, THEREFORE, the City Council of the City of Huntington Beach does
hereby resolve as follows:
SECTION 1. The City Council believes that municipalities have the right to adopt
facially non-discriminating neutral in the absence of evidence of discriminatory effect without
being subject to civil litigation.
14-4294/110799.doc 1
Resolution No. 2014-42
SECTION 2. To that end, the City Council supports the City of Newport Beaclis
petition to the U.S. Supreme Court to seek review of the Pacific Shores matter. This review is
necessary to correct the Ninth Circuits misapplication of the Americans with Disabilities Act and
Fair Housing Act, which were used to invalidate a facially neutral zoning ordinance.
SECTION 3. The City Council finds the adoption of this resolution is not subject to the
California Environmental Quality Act(`CEQA)pursuant to Sections 15060(c)(2) (the activity
will not result in a director or reasonably foreseeable indirect physical change in the
environment) and 15050(c)(3) (the activity is not a project as defined in Section 15378) of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
SECTION 4. This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting this resolution.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 21 s t day of July , 2014.
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REVIE D APPROVED: APPROVED AS TO FORM:
City a r �Attoriey
IN IATED AND APPROVED:
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City Attorney
14-4294/110799.doc 2
Res. No. 2014-42
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN the duly elected, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing resolution was passed and adopted
by the affirmative vote of at least a majority of all the members of said City Council
at a Regular meeting thereof held on July 21, 2014 by the following vote:
AYES: Katapodis, Hardy, Shaw, Harper, Boardman, Sullivan, Carchio
NOES: None
ABSENT: None
ABSTAIN: None
City C k and ex-officio Ark of the
City Council of the City of
Huntington Beach, California
ATIFAC H M E N T #2
What did Newport Beach's Group Residential Uses Ordinance Do?
1. It affirmed that a State-licensed treatment home serving 6 or fewer persons is allowed by right in all
residential districts. Newport Beach today has 13 of these homes, serving 78 persons.
2. It said that State-licensed homes with 7 or more persons and any unlicensed "sober living" homes
that existed at the time the ordinance was adopted could remain in R-1 and R-2 zones if the home
secured a Use Permit, and complied with its conditions. They had a year to do so. Today, 9 of these
homes have secured use permits, serving 73 persons.
3. It said that new"7 and over" homes(licensed or unlicensed) and all new unlicensed homes which do
not operate as single housekeeping units(regardless of size) could be placed only in multi-family
residential zones (R-3 and above), and only with a Use Permit.
4. If a series of small licensed homes are linked together in management, it said that these homes
created one larger"integral"facility and limited these facilities to multi-family residential zones with
a Use Permit.
5. It allowed for a person or the operator of any group residential use to apply for and receive
reasonable accommodation from Items 2 and 3 following a determination by an independent
hearing officer. As of 2014, 6 homes have received reasonable accommodation in this manner,
serving 46 persons.
Our ordinance's definitions include:
(1)A"Single Housekeeping Unit" -the functional equivalent of a traditional family, whose members are
an interactive group of persons jointly occupying a single dwelling unit;
(2)A"Group Residential Unit" -shared living quarters, occupied by two or more persons not living
together as a single housekeeping unit; and
(3) "Residential Care Facilities—Large" -Any place, site or building, or groups of places, sites or
buildings, whether licensed or not, in which seven or more individuals with a disability reside who are
not living together as a single housekeeping unit and in which every person (excluding the operator's
employees and the employees' family members) residing in the facility is an individual with a disability.
The primary distinction between this use and a "group residential unit" is that the residents of
residential care facilities are disabled.
Like a State-licensed treatment facility serving 6 or fewer, any people living as "single housekeeping
units" are allowed in all residential zones. For example, if individuals recovering from alcoholism or drug
addiction decide to live together,they may sign a lease together and live as a "single housekeeping unit"
anywhere in the city.
"Group residential units" (akin to Boarding Houses or Parolee-Probationer homes) are prohibited in all
residential zones.
For more information, contact:
Michael Torres, Assistant City Attorney
949-644-3131 or MTorres@newportbeachca.gov
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