HomeMy WebLinkAboutMC-1286U
Adopted: September 15, 2008
Effective: September 15, 2008
I ORDINANCE NO. MC-1286
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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 PAROLEE/PROBATIONER 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 ofthe City of San Bernardino do ordain as follows:
WHEREAS, Section 40(z) of the City Charter vests the Mayor and Common Council with
the power to make and enforce all laws and regulations with respect to municipal affairs, subject only
to 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
procedures otherwise required prior to the adoption of a zoning ordinance, as an urgency measure,
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an interim ordinance, by a vote offourth-fifths (4/5) majority, prohibiting any uses that maybe 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
within 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
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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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I WHEREAS, citizens of the City have expressed significant concerns regarding the adverse
2 impacts that an over-proliferation of paroleelprobationer group homes, registered sex offender group
3 homes, and state licensed and unlicensed group homes has on the surrounding residential
4 neighborhoods, 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
II (www.meganslaw.ca.gov).as of September 10, 2008, there were 471 registered sex offenders living
12 within the City and County islands located within the City's borders, which number is
13 disproportionate and at a much higher percentage of the total number of registered sex offenders
14 living in San Bernardino County when compared to the percentage of the City's population to the
15 County's total population; and
16 WHEREAS, according to the San Bernardino Police Department, as of August 31, 2008,
17 there were 1,876 active parolees living within the City; and
18 WHEREAS, significant concerns have been raised by residents in the community regarding
19 the over-proliferation ofregistered 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 Establishing a Temporary Moratorium on the Establishment and Operation of New
23 Parolee/Probationer Group Homes, Registered Sex Offender Group Homes and Unlicensed Group
24 Homes, Declaring the Urgency Thereof, and Taking Effect Immediately." Ordinance No. MC-1253
25 and the Request for Council Action, Staff Report, and other documents and public testimony
26 previously submitted to the Mayor and Council in support of said Ordinance are hereby incorporated
27 herein by reference.
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I 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 these 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, 2008, the Mayor and Council adopted Ordinance No. 1280, which
10 established the temporary moratorium for 45 days pursuant to Government Code Section 65858,
II hich is additional State legislative authority for the City's adoption of a temporary moratorium by
12 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 Ad 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 and determine the actual adverse
18 impacts of paroleelprobationer, registered sex offender, and State licensed and unlicensed group
19 homes now permitted in residentially zoned areas ofthe City. The City also requires additional time
20 to study and determine appropriate uses in residentially zoned areas, to reduce adverse impacts while
21 complying with federal and state laws protecting the disabled, and to specify appropriate permitting
22 conditions, requirements, and procedures and desired levels of discretionary review; and
23 WHEREAS, the Mayor and Common Council requires additional time to receive public
24 comment prior to enacting any permanent regulatory ordinances; and
25 WHEREAS, the above-stated recitals and the Staff Report to this Ordinance are hereby
26 adopted as the written report issued by the Mayor and Council pursuant to Government Code Section
27 65858, which describes the measures taken to alleviate the condition which led to the adoption of
28 the previous urgency ordinances; and
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1 WHEREAS, notice of the public hearing for the Mayor and Council's consideration of the
2 roposed Urgency Ordinance was published in The Sun newspaper on September 5, 2008, as
3 required by Government Code Section 65858.
4 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
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8 group homes, or unlicensed group homes are likely to commence operations of such uses before the
9 studies are completed and appropriate regulations and safeguards are adopted, thereby adversely
10 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
12 group homes may be established in areas that would be inconsistent with the surrounding uses or
13 ith the character of a residential neighborhood and would be immediately detrimental to the public
14 eace, health, safety and welfare of the community; and
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d.
If new paroleelprobationer group homes, registered sex offender group homes, or
16 unlicensed group homes are established, such uses could conflict with, and defeat the purpose of,
17 the 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
19 Council hereby finds that there is a current and immediate threat to the public health, safety, or
20 welfare, and the approval of additional use permits, building permits or other applicable entitlements
21 to establish or operate a new paroleelprobationer group home, registered sex offender group home,
22 or unlicensed group home would result in that threat to public health, safety or welfare; and
23 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
24 SAN BERNARDINO DO ORDAIN AS FOLLOWS:
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Section 2.
Imposition of Moratorium.
A.
Notwithstanding any conflicting provision( s) in any other section of the San Bernardino
27 Municipal Code, including the Development Code, no new paroleelprobationer group home, registered
28 sex offender group home, or unlicensed group home shall be established or operated; and no
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1 Conditional Use Permit, Development Permit, Building Permit, Certificate of Occupancy or Zoning
2 Verification Review (also referred to as "Zoning Consistency Review") shall be issued or granted for
3 the establishment or operation of a new paroleelprobationer group home, registered sex offender group
4 home, or unlicensed group home, or similar use.
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B.
1.
As used in this Ordinance, the following defmitions apply:
"Parolee/probationer group home" shall mean any single family residential structure
7 or unit, whether owned and/or operated by an individual or a for-profit or non-profit entity, that houses
8 two or more paroleeslprobationers, unrelated by blood, marriage, or adoption, in exchange for
9 monetary or non-monetary consideration given and/or paid by the paroleelprobationer and/or any
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ublic or private entity or person on behalf of the paroleelprobationer.
2. A "parolee/probationer" includes:
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Any individual who has been convicted of a Federal crime and sentenced to a
13 term of supervised probation or sentenced to a term of imprisonment in Federal prison, and granted
14 conditional and revocable release into the community under the supervision of a Federal parole officer.
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b.
Any individual who has been convicted of a State crime and sentenced to a term
16 of supervised probation or sentenced to a term of imprisonment in county jailor in a State prison and
17 who is serving a period of supervised community custody, as defined in Penal Code Section 3000, and
18 is under the jurisdiction of the California Department of Corrections, Parole and Community Services
19 Division.
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c.
An adult or juvenile sentenced to a term in the California Youth Authority and
21 who has received conditional and revocable release into the community under the supervision of a
22 Youth Authority Parole Officer.
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3.
"Registered sex offender group home" shall mean any single family residential structure
24 or unit, whether owned and/or operated by an individual or a for-profit or non-profit entity, that houses
25 two or more registered sex offenders, unrelated by blood, marriage, or adoption, in exchange for
26 monetary or non-monetary consideration given or paid by the registered sex offender or any public or
27 private 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
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I California Penal Code Section 290.
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5.
"Licensed group home" shall mean any State licensed residential facility that is
3 aintained and operated to provide non-medical residential care, day treatment, or foster agency
4 services for six or fewer adults, children, or adults and children, and which is required by State law
5 to be treated as a single family residence or single family dwelling unit for zoning purposes.
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"Unlicensed group home" shall mean any residential structure or unit, whether owned
7 and/or operated by an individual or a for-profit or non-profit entity, that is not licensed by the State,
8 that is maintained and operated to provide non-medical residential care, day treatment, or foster agency
9 services for six or fewer adults, children, or adults and children, and which is not required by State law
10 to be treated as a single family residence or single family dwelling unit for zoning purposes.
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Section 3:
Reasonable Accommodation.
12 In compliance with the Federal Fair Housing Act (42 U.S.c. SS 3600 et seq.), the Americans
13 with Disabilities Act (42 U.S.c. SS 12101 et seq.), and the Employment and Housing Act (Gov. Code
14 S S 12900 et seq.), it is the City's policy to provide reasonable accommodation in the application of this
15 Ordinance to any person with a disability who seeks fair access to housing. "Disability" shall have the
16 same meaning as the terms "disability" and "handicapped" in the Fair Housing Act.
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A.
An application for reasonable accommodation in the application of this Ordinance shall
18 e made to the City PlannerlDeputy Director of Development Services, and shall include:
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The provision of this Ordinance from which accommodation IS being
requested;
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The basis for the claim that the individuals affected are considered disabled
22 under the Fair Housing Laws, and why the accommodation is necessary to provide equal opportunity
23 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
25 Services reasonably determines is necessary.
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B.
In making a determination regarding the reasonableness of the requested
27 accommodation, the following factors shall be considered:
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1.
Special need created by the disability;
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Potential benefit that can be accomplished by the requested accommodation;
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
6 administrative burden on the City;
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Whether the requested accommodation would require a fundamental alteration
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C.
Whether granting the request would be consistent with the City's General Plan.
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Any request for reasonable accommodation from the provisions of this Ordinance shall
11 e reviewed and considered by the Planning Commission at a noticed public hearing and may be
12 approved, conditionally approved, or denied by the Planning Commission.
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Section 4:
This Ordinance is based upon the recitals and findings set forth above, and the
14 accompanying Staff Report and attachments to this Ordinance, and is adopted pursuant to the authority
15 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
17 immediately and be of no further force and effect 10 months and 15 days from its date of adoption
18 unless extended by action of the Mayor and Common Council.
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Section 6:
During the effective time period of this Ordinance, the Development Services
20 Department and the Planning Commission are hereby directed to consider and process a permanent
21 ordinance regulating the establishment and operation of paroleelprobationer group homes, registered
22 sex offender group homes, unlicensed group homes, and other similar uses in the City of San
23 Bernardino.
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Section 7:
Compliance with the California Environmental Quality Act. The Mayor
25 and Common Council finds that this Ordinance is not subject to the California Environmental Quality
26 Act (CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably
27 foreseeable indirect physical change in the environment) and 15060( c )(3) (the activity is not a project
28 as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
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I Chapter 3, because it has no potential for resulting in physical change to the environment, directly or
2 indirectly.
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Section 8:
Severability. If any section, subsection, subdivision, sentence, clause or phrase
4 in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective
5 y any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of
6 the remaining portions of this Ordinance or any part thereof. The Mayor and Common Council hereby
7 declares that it would have adopted each section irrespective of the fact that anyone or more
8 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or
9 ineffective.
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MC-1286
I AN URGENCY ORDINANCE OF THE CITY OF SAN BERNARDINO EXTENDING
A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF
2 NEW PAROLEEIPROBATIONER GROUP HOMES, REGISTERED SEX OFFENDER
3 GROUP HOMES AND UNLICENSED GROUP HOMES, DECLARING THE URGENCY
THEREOF, AND TAKING EFFECT IMMEDIATELY.
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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 19~Ular meeting thereof, held on the 15th day of
7 Se tember
, 2008, by the following vote, to wit:
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COUNCIL MEMBERS:
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ESTRADA
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BAXTER
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BRINKER
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DERRY
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KELLEY
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JOHNSON
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MC CAMMACK
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AYES
NAYS
ABSTAIN ABSENT
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Rac I Clark, City Clerk
The foregoing Ordinance is hereby approved this /CJ tJ.. day of
,2008.
September
24 Approved as to form:
25 JAMES F. PENMAN
City Attorney
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