Cramped Quarters! Living with Med Cottages & Sober Living Homes

Transcription

1 Presented by Northern California: Roger Grant, Esq. & Andrea O Toole, Esq. Southern California: Timothy Flanagan, Esq. & Frederick T. Whitney, Esq. Many Communities have recently received an influx of complaints regarding activities, which residents contend are associated with sober living homes or facilities. Complaints vary from noise, loud talking, profanity, excessive cigarette smoke, excessive trash, loitering, general suspicious behavior, commercial use (or use inconsistent with residential use), unauthorized vehicles, and concerns about possible crime. 1. Licensed Facilities The California Department of Health Care Services (DHCS) licenses facilities serving six or fewer persons that provide residential non-medical services to adults who are recovering from alcohol or drug related addictions and need treatment or detoxification services. These licensed facilities are commonly referred to as sober living facilities. Sober living facilities serving six or fewer residents must be treated like single-family homes or single dwelling units for zoning purposes. [CA Health & Safety Code ] In this regard, a licensed sober living facility is treated as a single family home / residential use for purposes of CC&R restrictions. [Government Code 12955; Hall v. Butte Home Health Inc., 60 Cal. App. 4th 308 (1997); Broadmoor San Clemente Homeowners Assoc. v. Nelson, 25 Cal. App. 4th 1 (1994).] 2. Unlicensed Facilities Recovery homes providing group living arrangements for people who have graduated from drug and alcohol programs, but which do not provide medical care or supervision, do not need to be licensed. These types of programs are commonly referred to as group homes, transitional housing, or sober living homes. Sober living homes are not protected by California state law the same way sober living facilities are. In other words, they are not presumed to be a residential use. However, sober living homes enjoy some protection under the law. Enforcement targeted at those who dwell in sober living homes can be viewed as discriminating against persons with a disability, which raises fair housing issues, as discussed further below. 3. Disabled Persons: Protected Classes Individuals in recovery from drug and alcohol addiction are defined as disabled under the Fair Housing Act. [See Pacific Shores v. Newport Beach, 730 F. 3d (9 th Cir. 2013); City of Edmonds v. Washington State Bldg. Code Council, 18F3d. 802 (9 th Cir. 1999).] This category of disability includes both individuals recovering in licensed detoxification facilities and recovering alcoholics or drug users who may live in "clean and sober" living facilities CACM Law Seminar. All rights reserved. 1 P age

2 The federal Fair Housing Amendment Act of 1988 ( FHAA ) protects (1) individuals with a physical or mental impairment which substantially limits one or more of a person's major life activities; (2) individuals with a record of such an impairment; or (3) individuals who are regarded as having such an impairment, whether or not the individual is in fact so impaired. [42 U.S.C. 3602(h); 24 C.F.R ] The FHAA, therefore, protects persons with physiological disorders or conditions, cosmetic disfigurement, anatomical loss affecting a major body system, and mental or psychological disorders, such as retardation or emotional or mental illness. The term physical or mental impairment includes drug addiction and alcoholism. Additionally, the FHAA applies to common interest developments [See Rhodes v. Palmetto Pathway Homes, Inc. (1991) 303 S.C. 308, 400 S.e.2d. 484, 486.] Therefore, an association may not discriminate against residents, tenants or their occupants based on their alcoholism or addiction, or establish rules or requirements which disparately (i.e., disproportionately) impact a protected class such as those with alcoholism or addictions. 4. Single Family or Residential Use i. Unruh Civil Rights Act (Civil Code 51 et seq.) Many CC&Rs define a separate interest as a dwelling or residence intended for use and occupancy by a single family, and/or restrict occupants from operating a business within the community. California case law has frequently dealt with defining what a family is, and, generally speaking, has recognized that a family does not necessary only refer to one or more natural persons related to each other by blood, marriage or adoption, but can also include a group of natural persons not all so related, but who maintain a common household in a Residence. Because California has very strong anti-discriminatory legislation and its courts recognize a number of different theories of discrimination, attacking the residential use by unrelated persons offers hidden risks to an association. For example, California has recognized actions in discrimination where a seemingly fair rule or restriction has a disparate impact against a protected class of persons. Thus, a restriction, although non-discriminatory on its face (i.e., it does not specifically state that protected persons should be discriminated against) could create liability to the association for discrimination if the effects of the rule have a disparate impact against a protected group. [See e.g., Llanos v. Estate of Coehlo (1998) 24 F.Supp. 2d 1052 (holding that rules which prohibited children from playing in certain areas of an apartment complex disparately impacts persons with children, thus constituting discrimination based upon familial status).] In California, any restrictions on the ownership or use of real property that are based on sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are void. (Civ. Code 53.) The antidiscrimination provisions of the Unruh Civil Rights Act (Civ. Code 51) have been held to apply to the owners association of a condominium project. [See O Connor 2017 CACM Law Seminar. All rights reserved. 2 P age

3 v. Village Green Owners Ass n (1983) 33 Cal.3d 790, ] Within the past 30 years, both California and the Federal government have enacted restrictions which prohibit discrimination and, at least in California, which specifically prohibit discrimination based upon disability. Specifically, any written covenant, condition, or restriction annexed to or made a part of any such deed or instrument, that contains any provision that purports to forbid, restrict, or condition the right of any person or persons to sell, buy, lease, rent, use, or occupy the property [based on their race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability] will be deemed to be revised to omit that provision. [Civ. Code 782.5(a); see Gov. Code 12955(a), (d).] With respect to unlicensed sober living homes, it is unclear whether the residents would be able to show that they live in a communal setting, share house responsibilities, and contribute to rent (either directly renting from the owner or operator). ii. Case Law Regarding Occupancy Restrictions In Colony Hill v. Masood Ghamaty, the court recognized that use and occupancy restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangements. [Colony Hill v. Masood Ghamaty (2006) 143 Cal.App.4th 1156, 1164.] Unless a homeowner association s practice with regard to the occupancy and use of its members units violates the above federal and state anti-discrimination limitations, the association is given a great deal of latitude in regulating the use of residential units in its development. In Colony Hill, the covenants and restrictions prohibited any use of the residential units other than for purposes of a single-family dwelling. Among the provisions of the Colony Hill CC&Rs was 2.6 which specified that each lot be " used and occupied for private, single-family dwelling purposes only, and no portion shall be used for any commercial purpose whatsoever."; and 2.7 which provided that each owner would have the right to lease his or her lot, provided that, among other things, the tenant would be obligated and bound by the CC&Rs and the regulations of the association. In 2000, Ghamaty became the owner of a four-bedroom, three-bath home in Colony Hill. Ghamaty occupied the home himself, but he also rented rooms in the home. He rented rooms to six different persons over a two-year period. Each renter had the exclusive use of a bedroom and bath, and the nonexclusive use of the living room and kitchen. Other than a cousin who rented for a short period of time, none of the tenants were related to Ghamaty. In early 2002 the association notified Ghamaty that his use of the home violated the CC&Rs requirement that it be used only as a single-family dwelling. The board demanded that he "return the property to a private single-family dwelling status immediately." When Ghamaty refused, claiming the renters are considered family, the association filed suit seeking injunctive and declaratory relief. The trial court found in favor of the association, finding Ghamaty in violation of Section 2.6 and 2.7 and permanently 2017 CACM Law Seminar. All rights reserved. 3 P age

4 enjoined him from "renting his unit to multiple renters other than in compliance with the declarations of the Court." Ghamaty appealed. Ghamaty relied on the San Diego Municipal Code's definition of "family", which defined family as "two or more persons related through blood, marriage or legal adoption or unrelated persons who jointly occupy and have equal access to all areas of a dwelling unit and who function as an integrated economic unit." Although this definition does allow for unrelated persons to constitute a "family," the appellate court agreed with the trial court that the further conditions were not met by Ghamaty's tenants. In particular, they did not function as "an integrated economic unit." Thus, he was not using the home for single-family dwelling purposes. In challenging the lease restriction in the CC&Rs, the court noted that Civil Code 1354(a) provides that "covenants and restrictions shall be enforceable equitable servitudes [i.e. conditions of use], unless unreasonable." It noted that the burden of proving unreasonableness falls to the party challenging the restriction. Moreover, unreasonableness "is to be determined not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole." Ghamaty did not meet the burden of showing the provision to be unreasonable. Generally, a family will extend to blood relatives, spouses, extended family (including a person who has custody of a child within the family), and adopted children, without regard to maximum occupancy restrictions. Numerical occupancy restrictions are difficult to sustain. California law requires a stringent test, requiring that the standard is necessary to the operation of the business and effectively carries out the significant business need it is alleged to serve. [See Government Code ] Therefore, covenants which restrict occupancy without regard to the size of the home or physical characteristics of the community, and which are merely a vehicle to discriminate against families, violate both FHA and the Unruh Act [See Park Redlands Covenant Control Community v. Simon (1986) 181 Cal.App.3d 87.] Although the Colony Hill case may allow an association to enforce the single family use restriction if the association can show the occupants do not function as a common household, the association will not likely be able to obtain evidence to support its position without first filing litigation and seeking such information through discovery. Moreover, despite the ruling in Colony Hill, there are a line of California cases which hold that an ordinance which attempts to limit the number of unrelated people from living together as one household violates Article I of the California Constitution protecting an individual s privacy. Generally, an attempt to restrict the number of unrelated individuals living together will be struck down by the court and held invalid. [See City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, (holding that a city ordinance restricting the number of unrelated individuals who may reside in a singlefamily zoned area violates Article I of the California State Constitution protecting an individual s privacy rights).] 2017 CACM Law Seminar. All rights reserved. 4 P age

5 5. Commercial Use As discussed above, licensed treatment facilities are considered a residential use, and, therefore, cannot be classified as commercial in nature. Presuming the sober housing is not a licensed facility, the following discussion is only applicable if an association were able to demonstrate that the occupants do not constitute a family, and, rather, that the housing is commercial in nature. Many declarations contain restrictions upon the operation of a business, and or limit the impact that the operation of a business may have on the community. For example, some CC&Rs require that any business vehicle parking must not overburden the streets. Such overburdened use might include numerous vehicles routinely driving and/or parking, deliveries/pickup of materials/equipment, etc. Generally any business use permitted by the CC&Rs must not produce sounds, odors or materials outside the boundaries of the Lot that are excessive or inappropriate for a residential community. With a sober living facility, it is the occupants themselves which typically appear to be producing the noise (loud talking/yelling, profanity) and odors (excessive smoking). If an association attacks the use of a sober living home as a business, it will likely entangle itself in a debate about residential and family use, and force the association to defend itself against claims of discrimination of a protected class. Even those residents/owners who receive protected status (such a licensed facilities or group homes that offer services to a protected class) must still comply with an association s governing documents, however. Thus, an association might consider adopting rules (which apply to all owners) to address any specific concerns. For example, parking rules might restrict the number of vehicles from any one home that may park on the street, or restrict the parking of commercial vehicles. Keep in mind that whatever CC&Rs or rule restrictions an association adopts, it must enforce them uniformly among all its members. Association CC&Rs also typically include restrictions upon any nuisance. For example, the CC&Rs might provide language such as the following: No owner may permit or cause anything to be done or kept on the Covered Property or on any public street abutting the Covered Property which may (a) increase the rate of insurance in the Covered Property, (b) result in the cancellation of such insurance, or (c) obstruct or interfere with the rights of other owners. If the board determines that a plume of smoke emanating from a property to another property, or loud/profane language or music constitutes a nuisance, such that it interferes with another owner s use and enjoyment of their property, the association could begin the enforcement process against the violating owner. However, the board must have evidence of the conduct (e.g., photographs, video, recordings, etc.) and testimony from the impacted owner(s). Again, the association must ensure that it is 2017 CACM Law Seminar. All rights reserved. 5 P age

6 uniformly enforcing the same nuisance standard against other properties (e.g., homes with loud adults/ teenagers, students living together, etc.). An association may also deem that the conduct does not rise to the level of a nuisance. In this regard, the board might defer to the individual owners to bring their own claims to abate a private nuisance. An impacted owner carry more weight with a judge or jury, than an association might. Because California statutes and case law currently favor sober living group homes, an association might be best advised to avoid enforcement of such operations as being a non-family or business use. Rather, an association might be better advised to address neighbor concerns through other enforcement efforts that focus on the outward impact and violations. For example, violations relating to vehicle/parking restrictions, trash restrictions, and, where evidence is strong, nuisance violations are available remedies, so long as they are uniformly enforced. 6. Med Cottages Defined A Med Cottage is a small, free standing housing unit designed to be temporarily placed on a caregiver s property for extended care of elderly persons. Often referred to as Granny Pods, Med Cottages were designed by a Blacksburg, Virginia company, with help from Virginia Tech. Med Cottages are prefabricated, and hook up to the main home s existing sewer, water and electric lines. Standard features include hand railings, interactive video, padded floors, medical monitoring devices and other specialized equipment for elder care. The basic Med Cottage is about 12 x 24 feet, with a bedroom, small kitchen and bathroom. The cost to purchase a Med Cottage runs from $75,000 to $125,000. Rentals are also available for approximately $2,000/month. The concept of placing a small home for an elder family member on a family member s property is not new. In Australia, elder cottages are known as Granny Flats and have been popular for years. The Amish have used elder cottages for decades, and refer to them as Gross Daadi Haus which means grandfather s house. In Hawaii, they are called Ohana units. 7. Zoning Regulations Regulation of med cottages in single family residential districts is an important and often controversial zoning consideration for municipalities. While several states have enacted statutes authorizing and regulating med cottages, in other states the issues are handled locally and regulations vary greatly. Typical restrictions include the following: a) Qualifying need. Before an owner can get approval for a granny pod, state or local regulations may require the owner to demonstrate a qualifying need. Typically, a physician must verify there s a physical or mental impairment that hinders two or more ADLs (activities of daily living) such as ambulation, bathing, eating, dressing, personal hygiene, transferring and toileting CACM Law Seminar. All rights reserved. 6 P age

7 b) Occupant. Most statutes specify a granny pod can only be inhabited by the designated care recipient. Such restrictions are designed to ensure the owner doesn t install a pod and use it for other purposes, such as short term rentals. c) Structure. Even where granny pods are generally permitted, they must meet state or local codes for manufactured or mobile homes. HUD has national standards for such structures, but state and local codes may be more stringent. d) Size. Granny pods come in various sizes. Some jurisdictions restrict size by establishing a fixed maximum square footage number, others use the size of the lot, the home, or a combination of both to determine how large the pod can be. e) Setbacks. Granny pods are usually subject to setback restrictions, which define how far from the property line the structure must be situated. f) Temporary status. While an approved pod can remain in place as long as needed, it s classified as temporary so it can t be mounted on a permanent foundation. Also, it must be removed when the need no longer exists, and most jurisdictions specify a removal timeframe (typically 30 to 60 days). g) Permits. A special use permit authorizing a pod on the property may be required. h) Utilities. Some zoning codes stipulate the unit must be hooked up to the power, water and sewer utilities serving the main property, and prohibit other alternatives. The Minnesota Legislature passed a law in 2016 allowing med cottages. The Legislature also gave cities and counties the ability to opt out of the law, and many have done so. Virginia and North Carolina have enacted state statutes, which regulate med cottages and require their approval by homeowner associations. These statutes provide the following: Municipalities must approve temporary family health care structures if the requirements below are met. Qualifying need requirement - The structure must house a mentally or physically impaired person. The impairment must be certified in writing by a physician. Qualifying structure - The structure must be a transportable residential unit. The structure cannot be placed on a permanent foundation, it must comply with the State Building Code, and it must not exceed 300 square feet. The structure must comply with all setback requirements. The med cottage must be removed within 60 days after care-giving on the site ceases. The city or county may make periodic inspections to assure ongoing compliance. The caregiver must be a first or second degree relative of the impaired person (a spouse, parent, grandparent, child, grandchild, aunt, uncle, nephew or niece) CACM Law Seminar. All rights reserved. 7 P age

8 8. Common Interest Development Restrictions Although few association governing documents address med cottages specifically, nearly all CC&Rs and Architectural Guidelines contain restrictions or prohibitions regarding secondary buildings on a lot. Common Interest Developments which do allow secondary structures will have setback requirements, architectural style and color regulation, and a strict architectural application process. Density issues and neighbor objections are also considered in the architectural process. Med cottages are becoming more popular, and forward thinking boards should develop clear architectural guidelines for med cottages so they are not caught off guard when they receive an application. The governing document amendments should address the following med cottage issues: Size, style and color of the structure Foundations, sewer & electrical concerns Setback requirements Qualifying need and occupancy restrictions Temporary status Density issues, parking concerns, and neighbor awareness 9. Final Legal Considerations Under the Fair Housing Act, it is unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy the dwelling. When a resident wishes to modify a dwelling unit under the reasonable modification provisions of the Fair Housing Act, the resident may do so. The association may require that the modification be completed in a professional manner under the applicable building codes, and may also require that the resident agree to restore the dwelling to the condition that existed before the modification, reasonable wear and tear excepted. The applicability of the Fair Housing Act to med cottages has not yet been addressed by the Federal Courts. The trend has been that the state or municipality either requires that med cottages be allowed, or prohibits them entirely. Accordingly, associations have not been forced with the decision of whether or not to allow med cottages in their development CACM Law Seminar. All rights reserved. 8 P age