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HomeMy WebLinkAboutMC-1310U Adopted: July 20. 2009 Effective: July 20. 2009 1 ORDINANCE NO. MC-1310 2 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. 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, 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 F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-09.wpd 1 MC-1310 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. 28 F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-09.wpd 2 MC-1310 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 F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-09.wpd 3 MC-1310 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: 4 5 6 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 10 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 14 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 17 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: 24 25 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 F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-09. wpd 4 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. 4 5 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. 10 11 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. 14 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. 19 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. 22 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. 27 4. A "registered sex offender" shall mean any person required to register pursuant to 28 California Penal Code Section 290. F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-D9.wpd 5 MC-1310 1 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. 5 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. 10 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. 16 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: 18 19 20 1. The provision of this Ordinance from which accommodation IS being requested; The basis for the claim that the individuals affected are considered disabled 2. 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 23 3. Any other information the City Planner/Deputy Director of Development 24 Services reasonably determines is necessary. 25 B. In making a determination regarding the reasonableness of the requested 26 accommodation, the following factors shall be considered: 27 28 1. 2. Special need created by the disability; Potential benefit that can be accomplished by the requested accommodation; F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-09.wpd 6 MC-1310 1 2 3 4 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 3. 4. 5. 6. 5 administrative burden on the City; 6 7. Whether the requested accommodation would require a fundamental alteration 7 in the nature of a City program; and 8 9 10 8. 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. 15 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 17 18 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. 23 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 F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-09.wpd 7 .> cc, MC-1310 1 indirectly. 2 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. 9 II 10 II 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-09. wpd 8 0- 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 7 Jul , 2009, by the following vote, to wit: 8 COUNCIL MEMBERS: AYES 9 ESTRADA ~ 10 BAXTER ~ 11 BRINKER ~ 12 SHORETT ~ 13 KELLEY ~ 14 JOHNSON ~ 15 MCCAMMACK x 16 NAYS ABSTAIN ABSENT 17 18 19 20 21 22 23 ~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 26 2 F:\EMPENO\Ordinances\GroupHomes.Extension Urgency Ordinance 7-14-09.wpd 9