HomeMy WebLinkAboutMC-1310U
Adopted: July 20. 2009
Effective: July 20. 2009
1 ORDINANCE NO. MC-1310
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AN URGENCY ORDINANCE OF THE CITY OF SAN BERNARDINO EXTENDING
3 A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF
NEW PAROLEEIPROBATIONER GROUP HOMES, REGISTERED SEX OFFENDER
4 GROUP HOMES AND UNLICENSED GROUP HOMES, DECLARING THE URGENCY
THEREOF, AND TAKING EFFECT IMMEDIATELY.
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The Mayor and Common Council of the City of San Bernardino do ordain as follows:
WHEREAS, Section 40(z) of the City Charter vests the Mayor and Common Council with
e power to make and enforce all laws and regulations with respect to municipal affairs, subject only
o the restrictions and limitations provided in the Charter or by State law; and
WHEREAS, Government Code Section 65858 provides that for the purpose of protecting the
ublic safety, health, and welfare, the legislative body of a city may adopt, without following the
rocedures otherwise required prior to the adoption of a zoning ordinance, as an urgency measure,
an interim ordinance, by a vote of fourth-fifths (4/5) majority, prohibiting any uses that may be in
conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body,
lanning commission or the planning department is considering or studying or intends to study
. thin a reasonable time; 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,
and transients, group homes, and other similar uses are operating as businesses in residentially zoned
areas of the City; and
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1 WHEREAS, citizens of the City have expressed significant concerns regarding the adverse
2 impacts that an over-proliferation of parolee/probationer group homes, registered sex offender group
3 omes, and state licensed and unlicensed group homes has on the surrounding residential
4 eighborhoods, including, but not limited to, impacts on traffic and parking, excessive delivery times
5 and durations, the commercial use of public property, commercial and/or institutional services
6 offered in private residences, more frequent trash collection, daily arrival of staff who live off-site,
7 second-hand smoke, possession and use of illegal drugs, loitering, trespassing, trash, debris,
8 unmaintained landscaping, depreciation of property values, and nuisance behavior such as noise,
9 litter, loud and offensive language, and public drunkenness; and
10 WHEREAS, according to the California Attorney General's website on Megan's Law
11 (www.meganslaw.ca.gov).as ofJuly 15, 2009, there were 457 registered sex offenders living within
12 the City and County islands located within the City's borders, which number is disproportionate and
13 at a much higher percentage of the total number of registered sex offenders living in San Bernardino
14 County when compared to the percentage of the City's population to the County's total population;
15 and
16 WHEREAS, according to the San Bernardino Police Department, as of May 28, 2009, there
17 ere 2,088 active parolees living within the City; and
18 WHEREAS, significant concerns have been raised by residents in the community regarding
19 he over-proliferation of registered sex offenders and parolees living within the City; and
20 WHEREAS, on August 6, 2007, the Mayor and Common Council unanimously adopted
21 Ordinance No. MC-1253, "An Urgency Interim Ordinance of the City of San Bernardino
22 stablishing a Temporary Moratorium on the Establishment and Operation of New
23 aroleelProbationer Group Homes, Registered Sex Offender Group Homes and Unlicensed Group
24 Homes, Declaring the Urgency Thereof, and Taking Effect Inunediately." Ordinance No. MC-1253
25 and the Request for Council Action, Staff Report, and other documents and public testimony
26 reviously submitted to the Mayor and Council in support of said Ordinance are hereby incorporated
27 erein by reference.
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1 WHEREAS, on September 17 and October 1,2007, the Mayor and Common Council
2 adopted Ordinance Nos. MC-1256 and MC-1257, respectively, an urgency ordinance and a non-
3 urgency regular ordinance, which extended the temporary moratorium by 10 months and 15 days.
4 Ordinance Nos. MC-1256 and MC-1257, and the Request for Council Action, Staff Report, and
5 other documents and public testimony previously submitted to the Mayor and Council in support of
6 ese two ordinances are hereby incorporated herein by reference.
7 WHEREAS, on July 21,2008 the Mayor and Council adopted Ordinance No. 1277, an
8 urgency ordinance which extended the temporary moratorium by twelve months.
9 WHEREAS, on August 4 and September 15, 2008, the Mayor and Council adopted
10 Ordinance No. 1280 and 1286, which established and extended the temporary moratorium pursuant
11 to Government Code Section 65858, which is additional State legislative authority for the City's
12 adoption of a temporary moratorium by an urgency interim ordinance.
13 WHEREAS, the Mayor has appointed Superior Court Judge Tara Reilly, Councilmembers
14 Wendy McCammack, Rikke Van Johnson, and Tobin Brinker, and the Mayor to a Parolee Reentry
15 d Hoc Committee for the purpose of discussing how to control and improve services for parolees
16 and probationers.
17 WHEREAS, the City requires additional time to study the adverse impacts of
18 arolee/probationer, registered sex offender, and State licensed and unlicensed group homes and to
19 study and determine appropriate locations for such group homes, and to reduce adverse impacts
20 hile complying with federal and state laws protecting the disabled, and to specify appropriate
21 ermitting conditions, requirements, and procedures and desired levels of discretionary review; and
22 WHEREAS, the Mayor and Common Council requires additional time to receive public
23 omment prior to enacting any permanent regulatory ordinances; and
24 WHEREAS, the above-stated recitals and the Staff Report to this Ordinance are hereby
25 adopted as the written report issued by the Mayor and Council pursuantto Government Code Section
26 65858, which describes the measures taken to alleviate the condition which led to the adoption of
27 he previous urgency ordinances; and
28 WHEREAS, notice of the public hearing for the Mayor and Council's consideration of the
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1 roposed Urgency Ordinance was published in The Sun newspaper on July 10,2009, as required by
2 Government Code Section 65858.
3 WHEREAS, the Mayor and Common Council hereby specifically finds as follows:
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Section 1.
Findings.
a.
The above recitals are true and correct and incorporated herein by this reference.
The owners or operators of parolee/probationer group homes, registered sex offender
b.
7 group homes, or unlicensed group homes are likely to commence operations of such uses before the
8 studies are completed and appropriate regulations and safeguards are adopted, thereby adversely
9 impacting the peace, health, safety, and welfare of the community; and
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c.
Parolee/probationer group homes, registered sex offender group homes, or unlicensed
11 group homes may be established in areas that would be inconsistent with the surrounding uses or
12 ith the character of a residential neighborhood and would be immediately detrimental to the public
13 eace, health, safety and welfare of the community; and
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d.
If new parolee/probationer group homes, registered sex offender group homes, or
15 icensed group homes are established, such uses could conflict with, and defeat the purpose of,
16 e proposal to study and adopt new regulations regarding these uses; and
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e.
In accordance with Government Code Section 65858, the Mayor and Common
18 Council hereby finds that there is a current and immediate threat to the public health, safety, or
19 elf are, and the approval of additional use permits, building permits or other applicable entitlements
20 0 establish or operate a new parolee/probationer group home, registered sex offender group home,
21 or unlicensed group home would result in that threat to public health, safety or welfare; and
22 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
23 SAN BERNARDINO DO ORDAIN AS FOLLOWS:
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Section 2.
Imposition of Moratorium.
A.
Notwithstanding any conflictingprovision(s) in any other section of the San Bernardino
26 Municipal Code, including the Development Code, no new parolee/probationer group home, registered
27 sex offender group home, or unlicensed group home shall be established or operated in the City of San
28 Bernardino; and no Conditional Use Permit, Development Permit, Building Permit, Certificate of
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MC-13 10
1 Occupancy or Zoning Verification Review (also referred to as "Zoning Consistency Review") shall
2 e issued or granted for the establishment or operation of a new parolee/probationer group home,
3 egistered sex offender group home, or unlicensed group home, or similar use.
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B.
1.
As used in this Ordinance, the following definitions apply:
"Parolee/probationer group home" shall mean any single family residential structure
6 or unit, whether owned and/or operated by an individual or a for-profit or non-profit entity, that houses
7 two or more parolees/probationers, unrelated by blood, marriage, or adoption, in exchange for
8 onetary or non-monetary consideration given and/or paid by the parolee/probationer and/or any
9 ublic or private entity or person on behalf of the parolee/probationer.
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2.
A "parolee/probationer" includes:
a.
Any individual who has been convicted of a Federal crime and sentenced to a
12 term of supervised probation or sentenced to a term of imprisonment in Federal prison, and granted
13 conditional and revocable release into the community under the supervision ofa Federal parole officer.
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b.
Any individual who has been convicted of a State crime and sentenced to a term
15 of supervised probation or sentenced to a term of imprisonment in county jail or in a State prison and
16 ho is serving a period of supervised community custody, as defined in Penal Code Section 3000, and
17 is under the jurisdiction of the California Department of Corrections, Parole and Community Services
18 Division.
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c.
An adult or juvenile sentenced to a term in the California Youth Authority and
20 ho has received conditional and revocable release into the community under the supervision of a
21 outh Authority Parole Officer.
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3.
"Registered sex offender group home" shall mean any single family residential structure
23 or unit, whether owned and/or operated by an individual or a for-profit or non-profit entity, that houses
24 two or more registered sex offenders, unrelated by blood, marriage, or adoption, in exchange for
25 monetary or non-monetary consideration given or paid by the registered sex offender or any public or
26 rivate entity or person on behalf of the registered sex offender.
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4.
A "registered sex offender" shall mean any person required to register pursuant to
28 California Penal Code Section 290.
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5.
"Licensed group home" shall mean any State licensed residential facility that is
2 aintained and operated to provide non-medical residential care, day treatment, or foster agency
3 services for six or fewer adults, children, or adults and children, and which is required by State law
4 to be treated as a single family residence or single family dwelling unit for zoning purposes.
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6.
"Unlicensed group home" shall mean any residential structure or unit, whether owned
6 and/or operated by an individual or a for-profit or non-profit entity, that is not licensed by the State,
7 that is maintained and operated to provide non-medical residential care, day treatment, or foster agency
8 services for six or fewer adults, children, or adults and children, and which is not required by State law
9 0 be treated as a single family residence or single family dwelling unit for zoning purposes.
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Section 3:
Reasonable Accommodation.
11 In compliance with the Federal Fair Housing Act (42 U.S.c. ~~ 3600 et seq.), the Americans
12 ith Disabilities Act (42 U.S.C. ~~ 12101 et seq.), and the Employment and Housing Act (Gov. Code
13 ~ ~ 12900 et seq.), it is the City's policy to provide reasonable accommodation in the application of this
14 Ordinance to any person with a disability who seeks fair access to housing. "Disability" shall have the
15 same meaning as the terms "disability" and "handicapped" in the Fair Housing Act.
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A.
An application forreasonable accommodation in the application of this Ordinance shall
17 e made to the City Planner/Deputy Director of Development Services, and shall include:
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1.
The provision of this Ordinance from which accommodation IS being
requested;
The basis for the claim that the individuals affected are considered disabled
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21 under the Fair Housing Laws, and why the accommodation is necessary to provide equal opportunity
22 for housing and to make the specific housing available to the individuals; and
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3.
Any other information the City Planner/Deputy Director of Development
24 Services reasonably determines is necessary.
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B.
In making a determination regarding the reasonableness of the requested
26 accommodation, the following factors shall be considered:
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1.
2.
Special need created by the disability;
Potential benefit that can be accomplished by the requested accommodation;
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Potential impact on, and compatibility with, other property in the vicinity;
Physical attributes of the property and structures;
Alternative accommodations that may provide an equivalent level of benefit;
Whether the requested accommodation would impose an undue financial or
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5 administrative burden on the City;
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Whether the requested accommodation would require a fundamental alteration
7 in the nature of a City program; and
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Whether granting the request would be consistent with the City's General Plan.
C. Any request forreasonable accommodation from the provisions of this Ordinance shall
e reviewed and considered by the Planning Commission at a noticed public hearing and may be
11 approved, conditionally approved, or denied by the Planning Commission.
12 Section 4: This Ordinance is based upon the recitals and findings set forth above, and the
13 accompanying Staff Report and attachments to this Ordinance, and is adopted pursuant to the authority
14 granted to the City of San Bernardino in California Government Code Section 65858.
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Section 5:
Pursuant to Government Code Section 65858, this Ordinance shall take effect
16 immediately and be of no further force and effect 12 months from its date of adoption unless extended
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y action of the Mayor and Common Council.
Section 6:
During the effective time period of this Ordinance, the Development Services
19 Department and the Planning Commission are hereby directed to consider and process a permanent
20 ordinance regulating the establishment and operation of parolee/probationer group homes, registered
21 sex offender group homes, unlicensed group homes, and other similar uses in the City of San
22 Bernardino.
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Section 7:
Compliance with the California Environmental Quality Act. The Mayor
24 and Common Council finds that this Ordinance is not subject to the California Environmental Quality
25 Act (CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably
26 foreseeable indirect physical change in the environment) and 15060( c)(3) (the activity is not a project
27 as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
28 Chapter 3, because it has no potential for resulting in physical change to the environment, directly or
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1 indirectly.
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Section 8:
Severability. If any section, subsection, subdivision, sentence, clause or phrase
3 in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective
4 y any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of
5 the remaining portions of this Ordinance or any part thereof. The Mayor and Common Council hereby
6 declares that it would have adopted each section irrespective of the fact that anyone or more
7 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or
8 ineffective.
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MC-1310
1 AN URGENCY ORDINANCE OF THE CITY OF SAN BERNARDINO EXTENDING
2 TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF
NEW PAROLEEIPROBATIONER GROUP HOMES, REGISTERED SEX OFFENDER
3 GROUP HOMES AND UNLICENSED GROUP HOMES, DECLARING THE URGENCY
THEREOF, AND TAKING EFFECT IMMEDIATELY.
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 ~~~~iar meeting thereof, held on the 20th day of
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Jul
, 2009, by the following vote, to wit:
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COUNCIL MEMBERS: AYES
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ESTRADA ~
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BAXTER ~
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BRINKER ~
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SHORETT ~
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KELLEY ~
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JOHNSON ~
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MCCAMMACK x
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NAYS
ABSTAIN ABSENT
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~g /.J-~
Rac 1 Clark, City Clerk
The foregoing Ordinance is hereby approved this ~ I~ay of July
.2009.
24 pproved as to form:
25 JAMES F. PENMAN
City Attorney
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