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HomeMy WebLinkAbout50-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney Subject: AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 19.06.027 TO THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) AND PROHffiITING THE ESTABLISHMENT AND OPERATION OF NEW PAROLEEIPROBATIONER GROUP HOMES, REGISTERED SEX OFFENDER GROUP HOMES, AND UNLICENSED GROUP HOMES. Dept: CITY A TIORNEY Date: August 15,2007 MCC Date: August 20, 2007 Synopsis of Previous Council Action: On August 6, 2007 - Mayor and Common Council unanimously adopted MC-l2S3, an Urgency Interim Ordinance of the City of San Bernardino Establishing a Temporary Moratorium on the Establishment and Operation of New ParoleelProbationer Group Homes, Registered Sex Offender Group Homes and Unlicensed Group Homes, Declaring the Urgency Thereof, and Taking Effect Immediately. Recommended motion: That the Development Services Department initiate a Development Code Amendment to add Section 19.06.027 to the Development Code and/or refer the matter to the Legislative Review Committee. rf' · 1t~J4 es F. Penman, City Attorney Contact person: Henrv Emoefio. Jr.. Sr. Deoutv Citv Attornev Phone: 5255 Supporting data attached: Staff Reoort FUNDING REQUIREMENTS: Amount: Ward: All Source: Finance: Council Notes: . Agenda Item No. l)7) J .~U'O 7 ~l:lQJ>. '.~"~~,'t\,' '''ilS._~"'!.'~~ ~ ~,'!< t'N,\,--."!I'fi,, -,. ~1'f~ ....- ''',~, ~ i ~~~~_"!.." ~ :.t~i~~~ -:;~}~~,\ INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO To: Mayor and Common Council From: James F. Penman City Attorney Date: August 16, 2007 Subject: Proposed Ordinance Prohibiting the Establishment and Operation of New Parolee/Probationer Group Homes, Registered Sex Offender Group Homes, and Unlicensed Group Homes Copies: San Bernardino County District Attorney, City Clerk, City Manager, Chief of Police, Fire Chief, Director of Code Enforcement Attached please find a draft ordinance on the above-referenced subject matter, the staff report, and Request for Council Action that will be on the City Council agenda this coming Monday, August 20, 2007. At the August 6, 2007 City Council meeting the Mayor said several times that he wanted this matter to be acted upon prior to the end of the current forty-five day moratorium on such new homes in our City. Knowing that the only way that could be accomplished, and desiring to enable the Mayor's time frame to be realized, it is necessary that any proposed ordinance be acted upon at the August 20 Council meeting. Yesterday, San Bernardino County District Attorney Michael A. Ramos, announced our County can expect an influx of an additional 5,000 new parolees if the United States District Court orders the early release of prison inmates. A three judge panel of that court is presently considering taking that action. As of July 25, we had about 18.71 % (508) of the County's registered sex offenders residing in the City of San Bernardino, or in County islands within or adjacent to our City's boundaries, If the early releases occur, we can expect to receive a greater percentage of those 5,000 parolees in our City than any other city in the County is likely to receive, based on past and present County parolee distribution statistics. Memo to Mayor and Common Council August 16, 2007 Page two Obviously, adoption of the proposed ordinance, or another ordinance if the City Council so decides, is critical to the public safety of the citizens of San Bernardino. Proposed amendments to the City's Development Code must first be heard by the City's Planning Commission at a noticed public hearing. Assuming that the City Council directs the Development Services Department to initiate a Development Code Amendment on August 20, the procedure is as follows: A 1/8th page newspaper advertisement giving notice must be published ten days prior to the Planning Commission hearing. It may be possible to hear the matter at the September 5 Planning Commission meeting if the newspaper notice can be published no later than August 26, which is the required ten days prior to the meeting. If the Planning Commission makes a recommendation at the September 5 meeting, the matter can be heard by the City Council at the September 17 regular meeting, provided that notice of the hearing on that matter is published in the newspaper on or before September 7. The current moratorium expires on September 20. We could pass an urgency ordinance on September 17, provided that five Councilmembers approve said urgency ordinance. If there are not five votes, or if the matter cannot be heard by the Planning Commission on September 5 and by the full Council on September 17, it will not be possible to meet the Mayor's timetable. It was our hope, given the Mayor's expression of the need for urgent action, that the workshop on Parolee housing would be heard at the August 20 Council meeting. However, earlier this week we were informed by the City Manager's office that they were having trouble locating a "neutral moderator." When I informed the City Manager that the Council needed to begin the process at the August 20 Council meeting, he told me they could not possibly have the workshop at that meeting. Rather than miss adhering to the Mayor's very tight timetable, we are bringing this matter to you on August 20, despite the failure to schedule the workshop on that date. Should action not be taken by the City Council on September 17 to adopt an urgency parolee/probationer group home ordinance, it will be necessary to extend the current moratorium. Pursuant to Govemment Code S 65858, we can extend the forty-five day moratorium for an additional ten months and fifteen days at the September 17 meeting if there are six votes to do so. Memo to Mayor and Common Council August 16,2007 Page two Ifwe extend the moratorium on September 17, this will give us time to conduct the workshop, and time for Development Services, the Planning Commission, and the City Council, including the Legislative Review Committee ifthat is the desire ofthe Council, to consider, deliberate, and act on appropriate legislation. We recommend that the Mayor and Common Council move expeditiously to enact the attached ordinance. We can continue to study the matter while the ordinance is moving through the required legal process. We can later amend or enact other ordinances if the Council so determines, but by enacting the proposed ordinance, we will fulfill the Mayor's commitment made to the public at the last Council meeting to have an ordinance in place by September 20. ectfully Submitted, 7~ J es F. Penman ity Attorney STAFF REPORT Council Meeting Date: August 20, 2007 TO: FROM: DATE: AGENDA ITEM: Mayor and Common Council James F. Penman, City Attorney August 15, 2007 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 19.06.027 TO THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) AND PROHIBITING THE ESTABLISHMENT AND OPERATION OF NEW PAROLEE/PROBATIONER GROUP HOMES, REGISTERED SEX OFFENDER GROUP HOMES, AND UNLICENSED GROUP HOMES. On August 6, 2007, the Mayor and Common Council unanimously adopted Ordinance No. MC-1253, "An Urgency Interim Ordinance ofthe City of San Bernardino Establishing a Temporary Moratorium on the Establishment and Operation of New ParoleelProbationer Group Homes, Registered Sex Offender Group Homes and Unlicensed Group Homes, Declaring the Urgency Thereof, and Taking Effect Immediately." Pursuant to Government Code Section 65858, Ordinance No. MC-1253 expires 45 days after the date of adoption, which will occur on September 20, 2007, unless extended by action of the Mayor and Council. Ordinance No. MC-1253 was adopted by the Mayor and Council based on documentary evidence and testimony presented at the Council meeting regarding the over-proliferation of registered sex offenders and parolees living within the City; the increasing numbers of parolee/probationer group homes, registered sex offender group homes, and other State licensed and unlicensed group homes located in the City's single family residential neighborhoods; and growing concern expressed by City residents regarding the significant adverse impacts caused by these uses on the surrounding residential neighborhoods. As described in the Staff Report to Ordinance No. MC-1253, at least ten local cities have already passed ordinances to address similar problems caused by these uses in their respective cities. Four ofthese cities adopted zoning ordinances which require new parolee group homes to obtain a conditional use permit, and be located a minimum distance from any other parolee group home and from certain other uses, such as schools, churches and parks. At least three local cities have more restrictive zoning ordinances which prohibit new group homes from housing two or more parolees, with two of these cities also prohibiting new group homes from housing two or more probationers and/or two or more registered sex offenders. Because ofthe magnitude of our City's problems with these uses, we propose that the Mayor and Council consider an even more restrictive zoning ordinance, a Development Code Amendment adding Section 19.06.027 to the San Bernardino Municipal Code, which is a permanent ordinance prohibiting the establishment and operation of new parolee/probationer group homes, registered sex offender group homes and unlicensed group homes. This proposed permanent ordinance is identical in substance to Ordinance No. MC-1253, which is only a temporary moratorium ordinance. In our meeting on August 10,2007, with Terri Rahhal, City Planner and Deputy Director of Development Services, Ms. Rahhal also expressed her preference for the more restrictive permanent zoning - I - F:\EMPENO\Ordinances\GroupHomes.StaffReport-Ordinance.wpd Staff Report Council Meeting Date: August 20, 2007 AGENDA ITEM: AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 19.06.027 TO THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) AND PROHffiITING THE ESTABLISHMENT AND OPERATION OF NEW PAROLEE/PROBATIONER GROUP HOMES, REGISTERED SEX OFFENDER GROUP HOMES, AND UNLICENSED GROUP HOMES ordinance prohibiting these uses over an ordinance which allows them with a conditional use permit, because the more restrictive ordinance would be easier for the City to enforce and easier for the public to understand its requirements. The proposed ordinance only prohibits the establishment and operation of certain types of new group homes. The proposed ordinance does not prohibit parolees, probationers and registered sex offenders from living in the City of San Bernardino. The proposed ordinance does not prohibit parolees, probationers and registered sex offenders from living in State licensed group homes serving six or fewer residents, which State law requires cities to treat the same as single family homes for zoning purposes. The proposed ordinance will prohibit two or more parolees and/or two or more probationers and/or two or more registered sex offenders from living in any new non-State licensed group home. The proposed ordinance will discourage new parolees and registered sex offenders from moving into the City of San Bernardino because new group homes will not be available to house them. By preventing these additional group homes with their adverse impacts in our City, we can help prevent the growing deterioration of our single family neighborhoods. The Mayor and Council's adoption of the motion to initiate a Development Code Amendment to add Section 19.06.027 to the Development Code will start the process for the Planning Commission to consider and make a recommendation regarding the proposed ordinance at a noticed public hearing. Afterwards, the Mayor and Council will consider the proposed ordinance and the Planning Commission's recommendations at a noticed public hearing. Recommended Motion: That the Development Services Department initiate a Development Code Amendment to add Section 19.06.027 to the Development Code and/or refer this matter to the Legislative Review Committee. - 2- F:\EMPENO\Ordinances\GroupHomes.StaftReport-Ordinance.'Wpd . 1 2 City Attorney DRAFT ORDINANCE NO. AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 3 19.06.027 TO THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) AND PROHIBITING THE ESTABLISHMENT AND OPERATION OF NEW 4 PAROLEE/PROBATIONER GROUP HOMES, REGISTERED SEX OFFENDER GROUP HOMES, AND UNLICENSED GROUP HOMES. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Mayor and Common Council of the City of San Bernardino do ordain as follows: WHEREAS, on August 6, 2007, the Mayor and Common Council unanimously adopted Ordinance No. MC-1253, "An Urgency Interim Ordinance of the City of San Bernardino Establishing a Temporary Moratorium on the Establishment and Operation of a New ParoleelProbationer Group Homes, Registered Sex Offender Group Homes and Unlicensed Group Homes, Declaring the Urgency Thereof, and Taking Effect Immediately" and which expires on September 20, 2007; and WHEREAS, Ordinance No. MC-1253 directed the Development Services Department and the Planning Commission to consider and process a permanent ordinance regulating the establishment and operation of parolee/probationer group homes, registered sex offender group homes, unlicensed group homes, and other similar uses in the City of San Bernardino; and WHEREAS, on (date) , the Planning Commission held a noticed public hearing to consider this proposed Ordinance adding Section 19.06.027 to the San Bernardino Municipal Code (Development Code); and WHEREAS on November 1,2005, the Mayor and Common Council adopted a revised and updated General Plan. The General Plan provides a vision for our City's future which includes, among other requirements, the use and development of land which ensures the safety of our streets and neighborhoods, and the compatibility between land uses, and provides for a coordinated law and code enforcement presence so that our residents will be safe in their homes, places of business, schools, and neighborhoods (General Plan, pages 1-21&22); and WHEREAS, the City has received evidence of increasing numbers of group homes that are transient in nature and operate more like institutional and commercial boarding house uses than as single family homes. Uses such as homes for parolees and probationers, registered sex offenders, F:\EMPENO\Ordinances\Group Homes Ordinance.wpd 1 City Attorney DRAF1- 1 and transients, group homes, and other similar uses are operating as businesses in residentially zoned 2 areas of the City; and 3 WHEREAS, citizens ofthe City have expressed significant concerns regarding the adverse 4 impacts that an over-proliferation of parolee/probationer group homes, registered sex offender group 5 homes, and state licensed and unlicensed group homes has on the surrounding residential 6 neighborhoods, including, but not limited to, impacts on traffic and parking, excessive delivery times 7 and durations, the commercial use of public property, commercial and/or institutional services 8 offered in private residences, more frequent trash collection, daily arrival of staff who live off-site, 9 second-hand smoke, possession and use of illegal drugs, loitering, trespassing, trash, debris, 10 unmaintained landscaping, depreciation of property values, and nuisance behavior such as noise, 11 litter, loud and offensive language, and public drunkenness; and 12 WHEREAS, according to the California Attorney General's website on Megan's Law 13 (www.meganslaw.ca.gov).as ofJuly 25,2007, there were 508 registered sex offenders living within 14 the City, which number was disproportionate and at a much higher percentage of the total number 15 of registered sex offenders living in San Bernardino County when compared to the percentage ofthe 16 City's population to the County's total population; and 17 WHEREAS, according to the California Department of Corrections, as of June 27, 2007, 18 there were 1,714 parolees living within the City; and 19 WHEREAS, significant concerns have been raised by the community regarding the over- 20 proliferation of registered sex offenders and parolees living within the City; and 21 WHEREAS, the Mayor and Common Council hereby specifically finds as follows: 22 23 24 Section 1. Findings. a. The above recitals are true and correct and incorporated herein by this reference. b. The owners or operators of parolee/probationer group homes, registered sex offender 25 group homes, or unlicensed group homes are likely to commence operations of such uses, thereby 26 adversely impacting the peace, health, safety, and welfare of the community, unless appropriate 27 ordinances are adopted; and 28 c. Without this proposed Ordinance, parolee/probationer group homes, registered sex F:\EMPENO\Ordinances\Group Homes Ordinance.wpd 2 City Attorney DRAF1~ 1 offender group homes, or unlicensed group homes may be established in areas that would be 2 inconsistent with the surrounding uses or with the character of a residential neighborhood and would 3 be immediately detrimental to the public peace, health, safety and welfare of the community; and 4 d. The Mayor and Common Council hereby finds that there is a current and immediate 5 threat to the public health, safety, or welfare, and the approval of any building permit or other 6 applicable entitlement to establish or operate a new parolee/probationer group home, registered sex 7 offender group home, or unlicensed group home would result in that threat to public health, safety 8 or welfare; and 9 e. Based on the recitals and findings referenced above, the Mayor and Common Council 10 hereby finds that this ordinance is necessary for the immediate preservation of the public peace, II health, or safety. 12 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF 13 SAN BERNARDINO DO ORDAIN AS FOLLOWS: 14 Section 2. San Bernardino Municipal Code Section 19.06.027 (Development Code) is 15 hereby added to read as follows: 16 17 18 19.06.027 Parolee/Probationer Group Homes, Registered Sex Offender Group Homes, and/or Unlicensed Group Homes; Prohibited Uses. Notwithstanding any conflicting provision( s) in any other section ofthe San Bernardino A. 19 Municipal Code, including the Development Code, no new parolee/probationer group home, registered 20 sex offender group home, or unlicensed group home shall be established or operated; and no 21 Conditional Use Permit, Development Permit, Building Permit, Certificate of Occupancy or Zoning 22 Verification Review (also referred to as "Zoning Consistency Review") shall be issued or granted for 23 the establishment or operation of a new parolee/probationer group home, registered sex offender group 24 home, or unlicensed group home, or similar use. 25 26 B. 1. As used in this Ordinance, the following definitions apply: "Parolee/probationer group home" shall mean any single family residential structure 27 or unit, whether owned and/or operated by an individual or a for-profit or non-profit entity, that houses 28 two or more parolees/probationers, unrelated by blood, marriage, or adoption, in exchange for F:\EMPENO\Ordinances\Group Homes Ordinance.wpd 3 City Attorney DRA,F'~r 1 monetary or non-monetary consideration given and/or paid by the parolee/probationer and/or any 2 public or private entity or person on behalf of the parolee/probationer. 3 4 2. A "parolee/probationer" includes: a. Any individual who has been convicted of a Federal crime and sentenced to a 5 term of supervised probation or sentenced to a term of imprisonment in Federal prison, and granted 6 conditional and revocable release into the community under the supervision of a Federal parole officer. 7 b. Any individual who has been convicted of a State crime and sentenced to a term 8 of supervised probation or sentenced to a term of imprisonment in county jailor in a State prison and 9 who is serving a period of supervised community custody, as defined in Penal Code Section 3000, and 10 is under the jurisdiction of the California Department of Corrections, Parole and Community Services 11 Division. 12 c. An adult or juvenile sentenced to a term in the California Youth Authority and 13 who has received conditional and revocable release into the community under the supervision of a 14 Youth Authority Parole Officer. 15 3. "Registered sex offender group home" shall mean any single family residential structure 16 or unit, whether owned and/or operated by an individual or a for-profit or non-profit entity, that houses 17 two or more registered sex offenders, unrelated by blood, marriage, or adoption, in exchange for 18 monetary or non-monetary consideration given or paid by the registered sex offender or any public or 19 rivate entity or person on behalf of the registered sex offender. 20 4. A "registered sex offender" shall mean any person required to register pursuant to 21 California Penal Code Section 290. 22 5. "Licensed group home" shall mean any State licensed residential facility that is 23 maintained and operated to provide non-medical residential care, day treatment, or foster agency 24 services for six or fewer adults, children, or adults and children, and which is required by State law 25 to be treated as a single family residence or single family dwelling unit for zoning purposes. 26 6. "Unlicensed group home" shall mean any residential structure or unit, whether owned 27 and/or operated by an individual or a for-profit or non-profit entity, that is not licensed by the State, 28 that is maintained and operated to provide non-medical residential care, day treatment, or foster agency F:\EMPENO\Ordinances\Group Homes Ordinance.wpd 4 City Attorney DRAFT I services for six or fewer adults, children, or adults and children, and which is not required by State law 2 to be treated as a single family residence or single family dwelling unit for zoning purposes. 3 c. Reasonable Acconnnodation. 4 In compliance witb the Federal Fair Housing Act (42 V.S.c. SS 3600 et seq.), tbe Americans 5 witb Disabilities Act (42 V.S.C. SS 12101 etseq.), and the Employment and Housing Act (Gov. Code 6 SS 12900 et seq.), it is tbe City's policy to provide reasonable acconnnodation in tbe application oftbis 7 Ordinance to any person with a disability who seeks fair access to housing. "Disability" shall have the 8 same meaning as the terms "disability" and "handicapped" in the Fair Housing Act. 9 1. 11 lObe made to the City Planner/Deputy Director of Development Services, and shall include: An application forreasonable acconnnodation in tbe application oftbis Ordinance shall 12 13 a. The provision of this Ordinance from which acconnnodation IS being requested; b. The basis for the claim that tbe individuals affected are considered disabled 14 under the Fair Housing Laws, and why tbe acconnnodation is necessary to provide equal opportunity 15 for housing and to make the specific housing available to the individuals; and 16 c. Any other information tbe City Planner/Deputy Director of Development 18 2. 17 Services reasonably determines is necessary. 19 acconnnodation, tbe following factors shall be considered: In making a determination regarding tbe reasonableness of tbe requested 20 21 22 23 24 25 a. Special need created by the disability; b. Potential benefit that can be accomplished by tbe requested acconnnodation; c. Potential impact on, and compatibility witb, other property in tbe vicinity; d. Physical attributes of tbe property and structures; e. Alternative acconnnodations that may provide an equivalent level of benefit; Whetber the requested acconnnodation would impose an undue financial or f. 26 administrative burden on the City; 27 g. Whether the requested acconnnodation would require a fundamental alteration 28 in tbe nature of a City program; and 5 F:\EMPENO\Ordinances\Group Homes Ordinance.wpd City Attorney DRAFT 1 2 h. Whether granting the request would be consistent with the City's General Plan. 3. Any request forreasonable accommodation from the provisions of this Ordinance shall 3 e reviewed and considered by the Planning Commission at a noticed public hearing and may be 4 approved, conditionally approved, or denied by the Planning Commission. 5 Section 3: This Ordinance is based upon the recitals and fmdings set forth above, and the 6 accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to the 7 authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution; 8 Article 1II of the Charter of the City of San Bernardino; and San Bernardino Municipal Code 9 (Development Code) Chapter 19.42. 10 Section 4: Compliance with the California Environmental Quality Act. The Mayor 11 and Common Council finds that this Ordinance is not subject to the California Environmental Quality 12 Act (CEQA) pursuant to Sections l506l(b)(3) (the activity will not result in a direct or reasonably 13 foreseeable indirect physical change in the environment) and l5060( c )(3) (the activity is not a project 14 as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, 15 Chapter 3, because it has no potential for resulting in physical change to the environment, directly or 16 indirectly. 17 Section 5: Severability. If any section, subsection, subdivision, sentence, clause or phrase 18 in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective 19 by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of 20 the remaining portions of this Ordinance or any part thereof. The Mayor and Common Council hereby 21 declares that it would have adopted each section irrespective of the fact that anyone or more 22 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or 23 ineffective. 24 //1 25 /1/ 26 /1/ 27 28 F:\EMPENO\Ordinances\Group Homes Ordinance.wpd 6 City Attorney AN ORDINANCE OF THE CITY OF SAN BERNARDINO JJIB &tI 2 19.06.027 TO THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) AND PROHIBITING THE ESTABLISHMENT AND OPERATION OF NEW 3 PAROLEE/PROBATIONER GROUP HOMES, REGISTERED SEX OFFENDER GROUP HOMES, AND UNLICENSED GROUP HOMES 1 4 5 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 6 Council of the City of San Bernardino at a meeting thereof, held on the _ day of 7 8 , 2007, by the following vote, to wit: 9 COUNCIL MEMBERS: 10 ESTRADA 11 BAXTER 12 BRINKER 13 DERRY 14 KELLEY 15 JOHNSON 16 MC CAMMACK 17 18 19 AYES NAYS ABSTAIN ABSENT Rachel Clark, City Clerk 20 21 22 23 24 25 The foregoing Ordinance is hereby approved this _ day of ,2007. PATRICK J. MORRIS, Mayor City of San Bernardino Approved as to form: JAMES F. PENMAN 26 City Attorney 27 City Attorney 28 F:\EMPENOI 7