HomeMy WebLinkAboutPH-3 - 26-170 - Planning Commission Public Comments - 3/17/2026PARTIDA, ANNA
From: Cynthia McDonald <cmcdonald.home@gmail.com>
Monday, February 23, 2026 11 :57 AM Sent:
To:
Cc:
ROJAS, JOHNNY; VALLARTA, ANGELY; ZICH, JON; HARLAN, JEFFREY; KLEPACK, KAREN;
MARTINEZ, DAVID; robert.dickson@costameaca.gov; PC Public Comments
TAI, CARRIE; HALLIGAN, MICHELLE; MCGILL, ANNA; CITY CLERK
Subject: Public Hearing Item 1: Resolution recommending City Council amend Sixth Cycle
Housing Element in connection with Housing Element Sites Rezoning
Dear Commissioners:
I respectfully request that staff address the following issues when this item is heard this evening.
1.HCD Notification and Approval
Has the Department of Housing and Community Development (HCD) been notified that the City intends
to modify the Housing Element Sites Analysis in a manner that results in a net loss of approximately 46%
of the City's non-buffered RHNA capacity?
•If so, what was HCD's response?
•If not, why has the City not sought HCD guidance prior to advancing this action?
If the City proceeds without HCD input, how does it intend to respond should HCD initiate enforcement
action requiring the City to replace the lost capacity? Similarly, how will the City respond if a developer,
individual, or third party seeks to compel rezoning of other parcels to make up for the deficit?
2.Loss of Funding
The City has already lost funding for the homeless shelter due to Housing Element noncompliance.
•What additional funding has already been lost?
•As long as the City remains out of compliance, how does it intend to address potential losses of
other critical funding sources, including but not limited to regional transportation funds,
permanent local housing allocations, Affordable Housing and Sustainable Communities (AHSC)
grants, local housing trust funds, CalHOME grants, infill infrastructure grants, and Pro-Housing
Design funding?
3.Other Penalties and Enforcement Risks
How does the City plan to respond if HCD exercises its authority to suspend the City's ability to issue
residential and nonresidential permits until the Housing Element is deemed compliant?
Additional risks include:
•Loss of Permitting Authority: A court could suspend the City's ability to issue building permits
(including remodels), approve zoning changes, or approve subdivision maps-significantly
disrupting development patterns and quality citywide.
1
ATTACHMENT 8
Financial Penalties: The City could face fines of up to $100,000 per month, which may be
multiplied by a factor of six if unpaid.
* CourtReceivership:AcourtcouLdappointareceiverwithauthoritytoremedyHousingELement
deficiencies and bring the City into compliance.
* StreamlinedMinisterialApprovals:TheCitycouLdbesubjecttoevenlessdiscretionaryreview
than currentLy required, including fully ministerial approvals with no public hearings, in order to
accelerate housing production.
4. Removal of Properties from the Sites Analysis
The agenda report identifies 17 properties proposed for removal from the Housing Element Sites
Analysis. Many of these property owners have legal counsel advising them to request removal.
Has the City notified other property owners-particularly those without Legal representation-that they
may also request removal of their properties? Failure to do so may expose the City to Legal chaLLenges or
require additional amendments to the Sites Analysis.
How does the City intend to make a "No Net Loss" finding, when it is clearly Losing 17 properties, and may
Lose even more? By upzoning other properties? Where?
5. Impacts on Other Housing Element Programs
Revisions to the Sites Analysis wilL necessitate updates to other Housing Element programs. For
example:
Chapter 4, Program 3C (North Costa Mesa Specific Plan) currently states that:
* 16sitestotaLingapproximateLy70.75acresareidentifiedintheSiteslnventory,
@ 6,435unitsareanticipatedtomeettheCity'sRHNAshortfalL,and
* Rezoningwillpermitdensitiesofupto90dwellingunitsperacre,withnooveraLlunitcaps.
These figures are no Longer accurate and must be corrected. What other Housing Element programs wil(
require amendment as a result of these changes?
Another example iS Program 3B (FairvieW Developmental Center), which states that if permits Or
entitlements are not issued by mid-2027, the City will identify a(ternative sites within 180 days,
consistent with SB 166 (No Net Loss). Given that the City has not yet produced a draft Specific Plan,
meeting this timeline appears unlikely. If additional sites must be identified, how does the Cityintend to
do so when it is already unable to meet its RHNA obligations in other parts of Costa Mesa?
6. Broader Concerns and Next Steps
The City previously assured residents that it WOuld bring the Housing Element intO compliance. The
potential penalties associated with noncompliance were a significant factorin promoting Measure K to
voters. However, it now appears that Measure K has instead enabled increased development while
Leaving the City exposed to serious Legal and financial risk.
The City characterizes the Measure K zoning as "additive," yet the proposed changes may result in net
tOSSeS that undermine Housing Element compLiance. Rushing thiS item forward Without notifying all
affected property owners or securing HCD approval risks Long-term harm to the City.
2
Llsing "additives" in an engine may delay necessary repairs, but it can also cause greater damage over
time. I urge the City to slow down, do this work correctly, and avoid compounding existin@ problems.
For these reasons, I respectfully request that you do not approve this item tonight.
Thank you for your consideration.
Sincerely,
Cynthia McDonald
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Nnfoqation Technology DepartmentJ - --
3
PARTIDA, ANNA
From:
Sent:
To:
Subject:
GREEN, BRENDA
Monday, February 23, 2026 11 :41 AM
PC Public Comments
FW: Planning Commission Must Remove Costa Mesa Women's Club From Rezoning List
Respectfully,
Brenda Green
City Clerk
City Clerk's Officel (714) 754-5221
77 Fair Drive l Costa Mesa l CA 92626
As City Hall has reopened, we encourage the public to take advantage of our appointment
system. Appointments can be made at www.costamesaca.Hov/appointments. Please note
that It is required that all guests check in with our Concierge Staff, located on the 1"' Floor Lobby, upon arrival at City
Hall.
From: Priscilla Rocco <dementedgardensprite@gmail.com>
Sent: Monday, February 23, 2026 11:39 AM
To: CITY CLERK <CI1YCLERK@costamesaca.gov>; Gay Lee Royer <socalbubble@gmail.com>
Subject: Planning Commission Must Remove Costa Mesa Women's Club From Rezoning List
Planning Commission,
I am a member of the Costa Mesa Women's Club (CMWC),
which has been a fixture in the city since 1910. Everything we do is
for charity and the betterment of the city. We own our building on
610 West 18th Street. This land should be removed from the
rezoning list. Better to rezone the golf course for affordable high-
density housing, as it pollutes the ground water with all the
chemicals used to keep the monoculture pristine for rich people to
play a game.
Priscilla Rocco
1
PARTIDA, ANNA
From:
Sent:
To:
Cc:
Subject:
Attachments:
Autumn Elliott <autumn@elliottimpact.com>
Monday, February 23, 2026 11:13 AM
PC Public Comments
Jia Min Cheng
Public Comments on Item #1 for today's Planning Commission meeting
2026.02.23 DRC and Elliott comments re Planning Commission Item re HE
amendments.pdf; 2025.12.19 Email from Kim Barlow to DRC and Elliott re Costa Mesa
Housing Element Program 2N.pdf; 2026.01.12 DRC and Elliott comments re proposed
revisions to Costa Mesa RA ordinance.pdf
Attached please find pubLic comments on Item No. 1 on today's Planning Commission agenda regarding
amendments to the Sixth Cycle Housing ELement. The document with today's date are our comments,
and the other two documents are attachments to our comments.
Please Let us know if there is any problem opening the documents or iT you need anything else from us.
Thank you,
Autumn ELLiott
Law Office of Autumn ELLiott
325 N. Larchmont BLvd., Ste 307
Los AngeLes, CA 90004
(213)500-9454
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r
Jnforination Technolqgy Departme2
1
Disability
Rights
California
California's protection & advocacy system
January 12, 2026
VIA EMAIL
LEGAL ADVOCACY UNIT
1831 K Street
Sacramento, CA 95811
Tel: (916) 504-5800
Fax: (916) 504-5801
TTY': (800) 719-5798
Intake Line: (800) 776-5746
www.disabilityrightsca.org
Kim
Jones Mayer
3777 N. Harbor Blvd.
Fullerton, CA 92835
khb(,jones-mayer.com
RE: Costa Mesa's Proposed Revisions to RA Ordinance
Dear Ms. Barlow:
Thank you for the opportunity to review and comment on Costa Mesa's
proposed revisions to the City's reasonable accommodation ordinance
pursuant to the settlement agreement in the jnsight v. Costa Mesa case.
In your December 19, 2025 email to us, you said that Costa Mesa was
proposing to delete subsection (7) of Section 1 3-200.62(f) of the City's
reasonable accommodation ordinance. You explained that the deletion is
proposed because "it is operationally difficult for staff or the applicants to
make this determination given lack of inTormation and the difficulties in
ensuring that any facilities adequately allow individual(s) with said
disability(ies) to live in a residential setting. Furthermore, this subsection is
unnecessary given the other provisions of the Reasonable Accommodation
Ordinance." We support the deletion of subsection (7) from Section 13-
200.62, which requires a finding that "the existing supply of facilities or a
similar nature and operation in the community is sufficient to provide
individuals with a disability an equal opportunity to live in a residential
setting.
January 12, 2026
Page 2 of 7
The deletion of subsection (7) is an important first step in bringing Costa
Mesa's reasonable accommodation ordinance into compliance with state
and Federal fair housing requirements. However, in order to bring the entire
reasonable accommodation regulation into compliance, Costa Mesa will
need to make additional changes. Given the structure of the current
ordinance, it will be difficult to do that by simply editing or rewording the
text. Instead, we propose that the City repeal sections of the ordinance in
their entirety and replace them with new ones.
To begin with, Section 13-200.62 (f) has problems that cannot be remedied
without restructuring. That section is a list of findings "all of which are
required for approval" of a reasonable accommodation request. But the list
combines factors that the person or entity requesting the accommodation
must establish in order to be entitled to an accommodation, i.e., the topics
of Findings (1 ) and (2), with factors that are the City's burden to establish if
it is going to deny the accommodation, i.e., the topics of Findings (3), (5),
and (8). These two types of topics need to be separated to clearly delineate
who - the person or entity making the request, or the City - bears the
burden of proof.
As written, Findings (3), (5), and (8) require affirmative findings that there is
no undue financial or administrative burden, no direct threat, and no
fundamental alteration for the approval of a reasonable accommodation
request. In other words, they require that the City affirmatively find that
those factors are not present. This has the effect of putting the burden on
the person or entity making the request to establish the absence of an
undue burden or fundamental alteration. That is contrary to fair housing
law, which makes it the City's burden to establish that there is an undue
burden, direct threat, or fundamental alteration before denying a
reasonable accommodation request. Fair housing law does not permit the
City to make the establishment of the absence of those factors a
requirement.
Undue burden, direct threat, and fundamental alteration can properly be in
the reasonable accommodation ordinance, but the regulation needs to be
structured in a way that makes clear that if the person or entity making the
request establishes the factors addressed in Findings (1 ) and (2), the City
must grant the accommodation unless it finds that granting the
January 12, 2026
Page 3 of 7
accommodation will impose an undue financial or administrative burden,
will result in a direct threat, or will result in a fundamental alteration (i.e., the
inverse of the current language regarding findings). It does not work to
combine them in the same list as the elements that the person or entity
making the request has the burden to establish. The two types of findings
must be bifurcated.
Moreover, the current structure of the reasonable accommodation
ordinance also makes it difficult for the ordinance to adequately reflect the
law governing the findings that the City must establish to deny an otherwise
valid reasonable accommodation request. For example, where the
ordinance a orizes e o eny a reasona le accommodation
request based on a direct threat Finding, it must also state that in such a
case the City must find that the threat cannot be mitigated by reasonable
accommodation. 28 C.F.R. §35.139. A finding that granting a reasonable
accommodation would be an undue burden or fundamental alteration must
also be made "after considering all resources available for use in the
funding and operation of the service, program, or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion." 28. C.F.R. §35.150(a)(3). It will be difficult to add such
clarifications in a clear way unless the two types of findings under Section
I 3-200.62(f) are separated and the Findings for which the City bears the
burden are written in the affirmative.
Section 13-200.62 (T) also includes Factors that do not fall within either the
burden of the person or entity making the accommodation request or the
allowable reasons for the City to deny a request, but instead layer on
additional obligations that are not permitted under fair housing law. Finding
(4) requires a finding that the "requested accommodation is consistent with
surrounding uses in scale and intensity oT use." The City cannot apply
different occupancy, use, or development standards to shared housing for
peop(e with disabilities as compared to other forms of housing, nor can it
require a household of people with disabilities to be limited to fewer people
than a single housekeeping unit would be allowed to have. To the extent
that a requested accommodation would result in housing that was vastly
different from permitted housing uses, City staff could evaluate whether
granting the request would constitute a fundamental alteration to a City
program or would result in an undue burden or direct threat. But simply
having the same number of people that a single housekeeping unit would
January 12, 2026
Page 4 of 7
be allowed to have, or failing to meet another occupancy or development
standard that was not also applied to single housekeeping units, could
never fall within one of those permitted reasons for denying an
accommodation request. Consistency with other uses should therefore not
be listed as a separate required finding.
similar
Likewise, Finding (6) requires in some instances "a finding that the
requested accommodation is necessary to make facilities of a similar
nature or operation economically viable in light of the particularities of the
relevant market and market participants generally." For the same reasons
that the City is removing Finding (7), which also focuses on "facilities of a
nature and operation" rather than on the specific housing that is at
issue for a particular reasonable accommodation request, the City should
remove Finding (6). It is just as true that it will be "operationally difficult for
staff or the applicants to make this determination given lack of imormation"
for Finding (6) as for Finding (7). Moreover, providing a feasibility study or
market study about other housing does not fall within the burden of
someone making a reasonable accommodation request. Making such a
study a condition of approving a disability-related accommodation is
therefore a discriminatory housing practice. This should likewise not be
listed as a required finding.
The deletion of Finding (7) should also be accompanied by a revision to the
language of Finding (2), which states that, "[t]he requested accommodation
is necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling." To ensure that City staff interpret
Finding (2) consistent with fair housing laws, by focusing on the housing at
issue in the request rather than "facilities of a similar nature and operation"
elsewhere, Finding (2) should be revised to refer to an equal opportunity to
use and enjoy "their dwelling," "the dwelling at issue in the accommodation
request," or something similar.
In order to bring the reasonable accommodation ordinance into compliance
with federal and state fair housing law, the City will also need to revise
other portions of the ordinance. As reflected in the settlement agreement,
we would welcome the opportunity to work with the City during that portion
of its review of the reasonable accommodation ordinance and to provide
feedback on any draft revisions of those other sections.
January 12, 2026
Page 5 of 7
For those portions of the ordinance as well, it would be most effective for
the City to repeal and replace language rather than try to work within the
existing structure. For example, Section 1 3-200.62(b) loads burdensome
and irrelevant requirements onto people or entities making reasonable
accommodation requests. A lay homeowner who needs an accommodation
due to disability should be able to comply with application requirements
without having to hire an attorney or other expert to help them understand
what they need to do. The City should limit the application to information
that is necessary for the City to evaluate whether the person or entity
making the request has met their burden, such as the location of the
dwelling at issue, the existence of the disability, the nature of the
accommodation that is being reques , an e conn on een e
disability and the requested accommodation. The provisions in Section 13-
200.62(b) that require people or entities making reasonable
accommodation requests to provide "[a]ny other information that the
director reasonably determines is necessary for evaluating the request for
reasonable accommodation" ((b)(3)) and "[a]ny other information that the
hearing officer reasonably concludes is necessary to determine whether
the findings required by subsection (e) of this section can be made" ((b)(7))
are particularly problematic because they are not limited to the information
necessary to establish that a person or entity is entitled to a reasonable
accommodation.
Section 13-200.62(d) provides that appeals of reasonable accommodation
requests will be handled through the same procedures as "any other
discretionary permit." However, the appeals process pertaining to
reasonable accommodation requests needs to be navigable and
manageable by lay people with disabilities. This provision should be
repealed and replaced with new language that requires a prompt, clear
statement of the reasons for any denial, establishes a simple procedure for
requesting an appeal, provides a reasonable deadline for making requests
for an appeal, and eliminates the need for individuals or entities to pay for
the City's review of their reasonable accommodation determination.
Most importantly, the section of the reasonable accommodation ordinance
addressing appeals must exempt them from the review procedures that
govern general zoning matters in order to respect the privacy of people's
disabilities and disability-related needs during any review process.
Hearings regarding reasonable accommodations requests should not be
January 12, 2026
Page 6 of 7
made by legislative bodies, and no public notice should be made regarding
reasonable accommodation reviews. Public hearings create an opening for
members of the public to express animus against people with disabilities,
which imposes an improper barrier to people seeking such
accommodations. For example, at the hearings regarding Insight's
reasonable accommodation request, a member of the public told the
Planning Commission that a person who is "mentally disabled does not
belong in a neighborhood next door to me or any of us in this room," and
someone testified to the City Council that the "mentally ill cannot associate
with our children, neighbors." As you know, hearing those types of
comments was traumatic for our client Ms. Doe, who spoke about her own
experiences with mental il ness, an ways ying a nsig s
housing had helped her, at a hearing on Insight's reasonable
accommodation request. Not only is the City not obligated to provide the
public with a forum to intimidate and humiliate people like Ms. Doe, but the
City cannot put people like her through such an ordeal as a condition of
having their accommodation request reviewed. Nor can such animus play
any part in the City's review of an accommodation request. For similar
reasons, the ordinance should also make clear that only the person or
entity making the request can appeal a decision regarding a reasonable
accommodation, in contrast to the current language which permits virtually
anyone - including neighbors with an animus against people with
disabilities - to appeal.
Finally, Sections 13-200.62(e) and (g), regarding "considerations," overlap
with the required "findings" in Section 13-200.62(f) in a way that impedes
consistency with fair housing law. Like Section 1 3-200.62(f), these sections
fail to make clear which elements are the burden of the person making the
reasonable accommodation request to establish and which are the City's
burden. Many of them are also improper considerations. For example, the
City cannot take into account "whether granting the request would be
consistent with the City's General Plan." By definition, any reasonable
accommodation request pertaining to zoning will be inconsistent with the
zoning scheme. "Requiring public entities to make exceptions to their rules
and zoning policies is exactly what the FHAA does." Anderson v. City of
Blue Ash, 798 F.3d 338, 363 (6th Cir. 201 5); City of Edmonds v.
Washington State Bldg. Code Council, 18 F.3d 802, 806 (9th Cir. 1994)
(FHA imposes an affirmative duty to reasonably accommodate disabled
persons). The question is not whether a requested disability
January 12, 2026
Page 7 of 7
accommodation is inconsistent with the City's General Plan, but whether
granting it would fundamentally alter the General Plan. To take another
example, the City cannot take into consideration whether "the
accommodation would result in a substantial increase in traffic or
insufficient parking" (§ 1 3-200.62(g)(2)) or "create an institutionalized
environment due to the number of and distance between facilities that are
similar in nature or operation" (§ 4 3-200.62(g)(4)) unless it is also doing so
with respect to single housekeeping units. Again, the City cannot impose
more stringent development or occupancy standards on housing occupied
by people with disabilities than on single housekeeping units, nor can it use
vague or undefined conditions as a basis for denial of a reasonable
accomm a n requ . ese are examp es, an no an e aus e
of the issues with subsections (e) and (g) of Costa Mesa's reasonable
accommodation ordinance. We would be happy to provide additional
comments or to discuss with you and with City staff in more detail our
further thoughts on bringing the ordinance into compliance with state and
federal fair housing requirements.
ist,
We appreciate your time and attention to our comments and look forward to
working with you and the City further on these important access issues for
Costa Mesa residents with disabilities. Please let us know if you would like
to discuss any oT these issues further.
Sincerely,
Autumn M. Elliott
Law Office of Autumn Elliott
Jia Min Cheng
Managing Attorney
Disability Rights California
2/23/26, 9:50 AM Costa Mesa Housing Element - Program 2N - Autumn Elliott - Outlook
@ Outlook
Costa Mesa Housing Element - Program 2N
From Kimberly Hall Barlow <khb@jones-mayer.com>
Date Fri 12/1 9/2025 9:42 AM
To Andrea.Rodriguez@disabilityrightsca.org <Andrea.Rodriguez@disabilityrightsca.org>; Autumn Elliott
<autumn@elliottimpact.com >
Cc TAI, CARRIE <carrie.tai@costamesaca.gov>; Tarquin Preziosi <tp@jones-mayer.com>
Counsel: Pursuant to the terms of the City's settlement agreement with Insight Psychology and
Jane Doe, we are submitting to you the proposed language to satisfy Program 2N of the City's
Housing Element for your comment, should you desire to provide any:
"Any person seeking approval to construct and/or modify residential housing for person(s) with
disabilities, and/or operate a residential care Facility, group home, or referral facility, which will
substantially serve persons with disabilities may apply for a reasonable accommodation to
obtain relief from a Zoning Code provision, regulation, policy, or condition which causes a
barrier to equal opportunity for housing."
In summary, whether a reasonable accommodation may be granted depends on whether it is
necessary to give the disabled "an equal opportunity to use and enjoy a dwelling," and whether
it is reasonable. The regulation provides that an accommodation is not reasonable if it
"impose[s] an undue financial or administrative burden on the City" or "if it would fundamentally
alter a City program, such as the City's zoning scheme." The regulation defines the procedures
that must be followed in seeking an accommodation, including the "findings" that the City must
make before granting the requested accommodation or an "alternative reasonable
accommodations which provide an equivalent level of benefit to the applicant.
The findings required are:
1. "(1 ) The requested accommodation is requested by or on the behalf of one or more
individuals with a disability protected under the fair housing laws.
2. The requested accommodation is necessary to provide one or more individuals with a
disability an equal opportunity to use and enjoy a dwelling.
3. The requested accommodation will not impose an undue financial or administrative
burden on the city, as "undue financial or administrative burden" is defined in fair housing
laws and interpretive case law.
4. The requested accommodation is consistent with surrounding uses in scale and intensity
of use.
5. The requested accommodation will not, under the specific facts of the case, result in a
direct threat to the health or safety of other individuals or substantial physical damage to
the property of others.
6. If economic viability is raised by the applicant as part of the applicant's showing that the
requested accommodation is necessary, then a finding that the requested accommodation
is necessary to make facilities of a similar nature or operation economically viable in light
of the particularities of the relevant market and market participants generally, not just for
that particular applicant.
about:blank?windowld=SecondaryReadingPane25
2/23/26, 9:50 AM Costa Mesa Housing Element - Program 2N - Autumn Elliott - Outlook
7. Whether the existing supply of facilities of a similar nature and operation in the community
is sufficient to provide individuals with a disability an equal opportunity to live in a
residential setting.
8. The requested accommodation will not result in a fundamental alteration in the nature of
the City's zoning program."
Proposed Change - Delete subsection (7) as it is operationally difficult for staff or the
applicants to make this determination given lack of information and the difficulties in ensuring
that any facilities adequately allow individual(s) with said disability(ies) to live in a residential
setting. Furthermore, this subsection is unnecessary given the other provisions of the
Reasonable Accommodation Ordinance.
Please let us know if you have any comments on this proposed language.
JONES MAYER
-------.-L A W
www.1ones-mayer.com
Kimberly Hall Barlow
Partner
Jones Mayer
3777 N. Harbor Blvd.l Fullerton, CA 92835
(714)446-1400i U (714)446-1448
www.1ones-mayer.com
d% P/ease consider the environment before printing
this e-mail
about:blank?windowld=SecondaryReadingPane25
Disability
Rights
California
California's protection & advocacy system
Januaiy 12, 2026
VIA EMAIL
LEGAL ADVOCACY UNIT
1831 K Street
Sacramento, CA 95814
Tel: (916) 504-5800
Fax: (916) 504-5801
TTY: (800) 719-5798
Intake Line: (800) 776-5746
www.disabilityrightsca.org
Kimberly Hal
Jones Mayer
3777 N. Harbor Blvd.
Fullerton, CA 92835
khb@jones-mayer.com
RE: Costa Mesa's Proposed Revisions to RA Ordinance
Dear Ms. Barlow:
Thank you for the opportunity to review and comment on Costa Mesa's
proposed revisions to the City's reasonable accommodation ordinance
pursuant to the settlement agreement in the Insight v. Costa Mesa case.
In your December 19, 2025 email to us, you said that Costa Mesa was
proposing to delete subsection (7) of Section I 3-200.62(f) of the City's
reasonable accommodation ordinance. You explained that the deletion is
proposed because "it is operationally difficult for staff or the applicants to
make this determination given lack of information and the difficulties in
ensuring that any facilities adequately allow individual(s) with said
disability(ies) to live in a residential setting. Furthermore, this subsection is
unnecessary given the other provisions of the Reasonable Accommodation
Ordinance." We support the deletion of subsection (7) from Section 4 3-
200.62, which requires a finding that "the existing supply of facilities of a
similar nature and operation in the community is sufficient to provide
individuals with a disability an equal opportunity to live in a residential
setting.
January 12, 2026
Page 2 of 7
The deletion of subsection (7) is an important first step in bringing Costa
Mesa's reasonable accommodation ordinance into compliance with state
and federal fair housing requirements. However, in order to bring the entire
reasonable accommodation regulation into compliance, Costa Mesa will
need to make additional changes. Given the structure of the current
ordinance, it will be difficult to do that by simply editing or rewording the
text. Instead, we propose that the City repeal sections of the ordinance in
their entirety and replace them with new ones.
To begin with, Section 13-200.62 (f) has problems that cannot be remedied
without restructuring. That section is a lis o n ings "all of which are
required for approval" of a reasonable accommodation request. But the list
combines factors that the person or entity requesting the accommodation
must establish in order to be entitled to an accommodation, i.e., the topics
of Findings (1 ) and (2), with factors that are the City's burden to establish if
it is going to deny the accommodation, i.e., the topics of Findings (3), (5),
and (8). These two types of topics need to be separated to clearly delineate
who - the person or entity making the request, or the City - bears the
burden of proof.
As written, Findings (3), (5), and (8) require affirmative findings that there is
no undue financial or administrative burden, no direct threat, and no
fundamental alteration for the approval of a reasonable accommodation
request. In other words, they require that the City affirmatively find that
those factors are not present. This has the effect of putting the burden on
the person or entity making the request to establish the absence of an
undue burden or fundamental alteration. That is contrary to fair housing
law, which makes it the City's burden to establish that there is an undue
burden, direct threat, or fundamental alteration before denying a
reasonable accommodation request. Fair housing law does not permit the
City to make the establishment of the absence of those factors a
requirement.
Undue burden, direct threat, and Fundamental alteration can properly be in
the reasonable accommodation ordinance, but the regulation needs to be
structured in a way that makes clear that if the person or entity making the
request establishes the factors addressed in Findings (1 ) and (2), the City
must grant the accommodation unless it finds that granting the
January 12, 2026
Page 3 of 7
accommodation will impose an undue financial or administrative burden,
will result in a direct threat, or will result in a fundamental alteration (i.e., the
inverse of the current language regarding findings). It does not work to
combine them in the same list as the elements that the person or entity
making the request has the burden to establish. The two types of findings
must be bifurcated.
Moreover, the current structure of the reasonable accommodation
ordinance also makes it difficult for the ordinance to adequately reflect the
law governing the findings that the City must establish to deny an otherwise
valid reasonable accommodation request. For example, where the
ordinance a orizes e o eny a reasona e accomm a on
request based on a direct threat finding, it must also state that in such a
case the City must find that the threat cannot be mitigated by reasonable
accommodation. 28 C.F.R. §35.139. A finding that granting a reasonable
accommodation would be an undue burden or Fundamental alteration must
also be made "affer considering all resources available for use in the
funding and operation or the service, program, or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion." 28. C.F.R. §35.150(a)(3). It will be difficult to add such
clarifications in a clear way unless the two types of findings under Section
1 3-200.62(f) are separated and the findings for which the City bears the
burden are written in the affirmative.
Section 13-200.62 (f) also includes factors that do not Tall within either the
burden of the person or entity making the accommodation request or the
allowable reasons for the City to deny a request, but instead layer on
additional obligations that are not permitted under fair housing law. Finding
(4) requires a Finding that the "requested accommodation is consistent with
surrounding uses in scale and intensity of use." The City cannot apply
different occupancy, use, or development standards to shared housing For
people with disabilities as compared to other forms of housing, nor can it
require a household of people with disabilities to be limited to Tewer people
than a single housekeeping unit would be allowed to have. To the extent
that a requested accommodation would result in housing that was vastly
different from permitted housing uses, City staff could evaluate whether
granting the request would constitute a fundamental alteration to a City
program or would result in an undue burden or direct threat. But simply
having the same number of people that a single housekeeping unit would
January 12, 2026
Page 4 of 7
be allowed to have, or failing to meet another occupancy or development
standard that was not also applied to single housekeeping units, could
never fall within one of those permitted reasons for denying an
accommodation request. Consistency with other uses should therefore not
be listed as a separate required finding.
Likewise, Finding (6) requires in some instances "a finding that the
requested accommodation is necessary to make facilities or a similar
nature or operation economically viable in light of the particularities of the
relevant market and market participants generally." For the same reasons
that the City is removing Finding (7), which also focuses on "facilities of a
similar nature and operation" rather than on the s c housing that is at
issue for a particular reasonable accommodation request, the City should
remove Finding (6). It is just as true that it will be "operationally difficult for
staff or the applicants to make this determination given lack of information"
for Finding (6) as for Finding (7). Moreover, providing a feasibility study or
market study about other housing does not fall within the burden or
someone making a reasonable accommodation request. Making such a
study a condition of approving a disability-related accommodation is
therefore a discriminatory housing practice. This should likewise not be
listed as a required Finding.
The deletion of Finding (7) should also be accompanied by a revision to the
language of Finding (2), which states that, "[t]he requested accommodation
is necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling." To ensure that City staff interpret
Finding (2) consistent with fair housing laws, by focusing on the housing at
issue in the request rather than "facilities of a similar nature and operation"
elsewhere, Finding (2) should be revised to refer to an equal opportunity to
use and enjoy "their dwelling," "the dwelling at issue in the accommodation
request," or something similar.
In order to bring the reasonable accommodation ordinance into compliance
with federal and state fair housing law, the City will also need to revise
other portions of the ordinance. As reflected in the settlement agreement,
we would welcome the opportunity to work with the City during that portion
of its review of the reasonable accommodation ordinance and to provide
feedback on any draft revisions of those other sections.
January 12, 2026
Page 5 of 7
For those portions of the ordinance as well, it would be most effective for
the City to repeal and replace language rather than try to work within the
existing structure. For example, Section 4 3-200.62(b) loads burdensome
and irrelevant requirements onto people or entities making reasonable
accommodation requests. A lay homeowner who needs an accommodation
due to disability should be able to comply with application requirements
without having to hire an attorney or other expert to help them understand
what they need to do. The City should limit the application to information
that is necessary for the City to evaluate whether the person or entity
making the request has met their burden, such as the location of the
dwelling at issue, the existence of the disability, the nature of the
accommodation that is being requested, and the connection between the
disability and the requested accommodation. The provisions in Section 13-
200.62(b) that require people or entities making reasonable
accommodation requests to provide "[alny other information that the
director reasonably determines is necessary for evaluating the request for
reasonable accommodation" ((b)(3)) and "[alny other information that the
hearing officer reasonably concludes is necessary to determine whether
the findings required by subsection (e) of this section can be made" ((b)(7))
are particularly problematic because they are not limited to the information
necessary to establish that a person or entity is entitled to a reasonable
accommodation.
Section 13-200.62(d) provides that appeals of reasonable accommodation
requests will be handled through the same procedures as "any other
discretionary permit." However, the appeals process pertaining to
reasonable accommodation requests needs to be navigable and
manageable by lay people with disabilities. This provision should be
repealed and replaced with new language that requires a prompt, clear
statement of the reasons for any denial, establishes a simple procedure For
requesting an appeal, provides a reasonable deadline for making requests
for an appeal, and eliminates the need for individuals or entities to pay for
the City's review of their reasonable accommodation determination.
Most importantly, the section of the reasonable accommodation ordinance
addressing appeals must exempt them from the review procedures that
govern general zoning matters in order to respect the privacy of people's
disabilities and disability-related needs during any review process.
Hearings regarding reasonable accommodations requests should not be
January 12, 2026
Page 6 of 7
made by legislative bodies, and no public notice should be made regarding
reasonable accommodation reviews. Public hearings create an opening for
members of the public to express animus against people with disabilities,
which imposes an improper barrier to people seeking such
accommodations. For example, at the hearings regarding Insight's
reasonable accommodation request, a member of the public told the
Planning Commission that a person who is "mentally disabled does not
belong in a neighborhood next door to me or any of us in this room," and
someone testified to the City Council that the "mentally ill cannot associate
with our children, neighbors." As you know, hearing those types of
comments was traumatic for our client Ms. Doe, who spoke about her own
experiences with mental il ness, an e ways a ying a nsig s
housing had helped her, at a hearing on Insight's reasonable
accommodation request. Not only is the City not obligated to provide the
public with a forum to intimidate and humiliate people like Ms. Doe, but the
City cannot put people like her through such an ordeal as a condition of
having their accommodation request reviewed. Nor can such animus play
any part in the City's review of an accommodation request. For similar
reasons, the ordinance should also make clear that only the person or
entity making the request can appeal a decision regarding a reasonable
accommodation, in contrast to the current language which permits virtually
anyone - including neighbors with an animus against people with
disabilities - to appeal.
Finally, Sections 13-200.62(e) and (g), regarding "considerations," overlap
with the required "findings" in Section 1 3-200.62(ta) in a way that impedes
consistency with fair housing law. Like Section 1 3-200.62(f), these sections
fail to make clear which elements are the burden of the person making the
reasonable accommodation request to establish and which are the City's
burden. Many of them are also improper considerations. For example, the
City cannot take into account "whether granting the request would be
consistent with the City's General Plan." By definition, any reasonable
accommodation request pertaining to zoning will be inconsistent with the
zoning scheme. "Requiring public entities to make exceptions to their rules
and zoning policies is exactly what the FHAA does." Anderson v. City of
Blue Ash, 798 F.3d 338, 363 (6th Cir. 201 5); City of Edmonds v.
Washington State Bldg. Code Council, 18 F.3d 802, 806 (9th Cir. 1994)
(FHA imposes an affirmative duty to reasonably accommodate disabled
persons). The question is not whether a requested disability
January 12, 2026
Page 7 of 7
accommodation is inconsistent with the City's General Plan, but whether
granting it would fundamentally alter the General Plan. To take another
example, the City cannot take into consideration whether "the
accommodation would result in a substantial increase in traffic or
insufficient parking" (§ 1 3-200.62(g)(2)) or "create an institutionalized
environment due to the number of and distance between facilities that are
similar in nature or operation" (§ I 3-200.62(g)(4)) unless it is also doing so
with respect to single housekeeping units. Again, the City cannot impose
more stringent development or occupancy standards on housing occupied
by people with disabilities than on single housekeeping units, nor can it use
vague or undefined conditions as a basis for denial of a reasonable
accomm a on requ . ese are examp es, an no an e aus e
or the issues with subsections (e) and (g) of Costa Mesa's reasonable
accommodation ordinance. We would be happy to provide additional
comments or to discuss with you and with City staff in more detail our
further thoughts on bringing the ordinance into compliance with state and
federal fair housing requirements.
ist,
We appreciate your time and attention to our comments and look Forward to
working with you and the City further on these important access issues for
Costa Mesa residents with disabilities. Please let us know if you would like
to discuss any of these issues further.
Sincerely,
Autumn M. Elliott
Law Office oT Autumn Elliott
Jia Min Cheng
Managing Attorney
Disability Rights California
PARTIDA, ANNA
From:
Sent:
To:
Subject:
Attachments:
Jim Fitzpatrick <jimfitzeco@gmail.com>
Monday, February 23, 2026 10:47 AM
PC Public Comments
Pubic Hearing #1 2.23.2026 - Reso City Council Amend Housing Element
Pubic Hearing #1 2.23.2026 - Reso City Council Amend Housing Element.pdf; Pubic
Hearing #1 2.23.2026 - Reso City Council Amend Housing Element.pdf
Please make available to Commissioners, and please make these comments part of the Public
Record
Please confirm receipt of this email
Cheers,
Jim Fitzpatrick
Solutioneer in Residence
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mnformation TechmologyIepariiqent.j
1
GROUP HOME ORDINANCE - REASONABLE ACCOMMODATION
QUESTIONS FOR PLANNING COMMISSION:
* Why have the Letters from Housing & Community Development (HCD), Disability Rights California
(DRC) and The Ohio House (OH) been ignored by Costa Mesa?
* There's a rumor, "The City is Winning" with Group Homes, but is it? INCORRECT
o City !!!!!! the INSIGHT CASE
a $1,750,000 million judgement against the City
N City required to work with DRC to modify the Group Home Ordinance
* The 2 sides remain very tnuch apart from a successful resolution
* Requirement to approve the Housing Element = Modify Group Home Ordinance
* How will Costa Mesa achieve "Substantial Compliance" with the Housing Element, with these issues?
* Costa Mesa has been compelled, in multiple ways, to modify the Group Home Ordinance
o Just exactly what has been modified?
* Has HCD reviewed, commented or approved the current Grorip Home Ordinance modifications? NO
o Prediction is the City will receive another HCD Letter, prior to March 17, even stronger than past
* Why is Costa Mesa picking this fight with HCD? We need a Housing Element & we have bigger issues
@ How is it going with DRC? Well, you can see from DRC's Letter, they are far apart
* How is it going witli Ohio House? City has not responded
* Has the City responded to CRD open complaint, seeking mediation? NO
* Does the City seek to move from the adversarial litigation phase to a phase of cooperation?
o Apparently Not?
* In a stnuctural budget deficit environment, can the City afford to continue the high spends of Iitigation, when
a reasonable solution has been offered? Please, think like a TaxPayer!
* PS: Just what is an "operator"? Appears to be problematic, and an intentional Trojan Horse?
Page I of 1
GROUP HOME ORDINANCE - REASONABLE ACCOMMODATION
OUESTIONS FOR PLANNING COMMISSION:
* Why have the Letters from Housing & Community Development (HCD), Disability Rights California
(DRC) and The Ohio House (OH) been ignored by Costa Mesa?
* There's a rumor, "The City is Winning" with Group Homes, but is it? INCORRECT
o City !9!! the INSIGHT CASE
a $1,750,000 million judgement against the City
a City required to work with DRC to modify the Group Home Ordinance
@ The 2 sides remain very much apart from a successful resolution
* Requirement to approve the Housing Element = Modify Group Home Ordinance
* How will Costa Mesa achieve "Substantial Compliance" with the Housing Element, with these issues?
* Costa Mesa has been compelled, in multiple ways, to modify the Group Home Ordinance
o Just exactly what has been modified?
* Has HCD reviewed, commented or approved the current Grorip Home Ordinance modifications? NO
o Prediction is the City will receive another HCD Letter, prior to March 17, even stronger than past
* Why is Costa Mesa picking this fight with HCD? We need a Housing Element & we have bigger issues
@ How is it going with DRC? Well, you can see from DRC's Letter, they are far apart
* How is it going witli Ohio House? City has not responded
* Has the City responded to CRD open complaint, seeking mediation? NO
@ Does the City seek to move from the adversarial litigation phase to a phase of cooperation?
o Apparently Not?
* In a structural budget deficit environment, can the City afford to continue the high spends of litigation, when
a reasonable solution has been offered? Please, think like a TaxPayer!
* PS: Just what is an G'operator"? Appears to be problematic, and an intentional Trojan Horse?
Page 1 of 1
PARTIDA, ANNA
From:
Sent:
To:
Subject:
Attachments:
GREEN, BRENDA
Monday, February 23, 20261 :21 PM
PC Public Comments
FW: Public Comment submission
Costa Mesa Amendment to the Sixth Cycle (2021-2029) Housing Element Sites
1nventory.docx.pdf
Respectfully,
Brenda Green
City Clerk
City Clerk's Office l (714) 754-5221
77 Fair Drive l Costa Mesa i CA 92626
EfiO[7
As City Hall has reopened, we encourage the public to take advantage of our appointment
system. Appointments can be made at www.costamesaca.gov/appointments. Please note
that It is required that all guests check in with our Concierge Staff, located on the 1" Floor Lobby, upon arrival at City
Hall.
From: Alejandra Perez Matus <alejandrap@kennedycommission.org>
Sent: Monday, February 23, 2026 12:31 PM
To: GREEN, BRENDA <brenda.green@costamesaca.gov>
Cc: Cesar C. <cesarc@kennedycommission.org>; Kennedy C <kennedyc@kennedycommission.org>
Subject: Public Comment submission
Hi,
On Behalf of The Kennedy Commission I am writing to submit a letter of public comment for the Planning commission
meeting, Item number 1 under Public Hearings. Attached is the letter,
Best Regards,
Alejandra Perez Matus
Pro'ect Mana er
CAU-TIO-N: This- 'emai! origjnated from outside-of the orga-ni- zation. Do n-ot cli-ck links or 'op- en attacer4j,
unless you reco.g:ze the seffider and knowthe content is safe. Report4nysus'picious activities toth,d
:[nformation Technologyartment3
1
February 23, 2026
Jeffrey Harlan
Costa Mesa Plaru'iing Commission
77 Fair Drive
Costa Mesa, CA 92626
ivwsv.kennedycoinmiss0on.org
177(]1 Cotviin itve., Suitc 200
frvine, CA 92614
949 230 0909
RE: Item PH-1 - Amendment to the Sixth Cycle (2021-2029) Housing Element Sites
Inventory
Honorable Chair Harlan and Costa Mesa City Planning Commission,
The Keiu'iedy Commission (the Cornrnission) is a broad-based coalition of residents and community
organizations advocating for the production of homes affordable for families earning less than
$30,000 annually in Orange County. Since 2001, we have successfully partnered with jurisdictions
across the county to create horising and land-use policies that increase affordable housing
opportunities for lower-income working families.
The Commission understands the complexity of the amendment before you, particularly in light of
the recent appellate decision iii New Commune DTLA LLC v. City of Redondo Beach and its
implications for overlay-based Housing Element implementation. We understand that the City is
responding to evolving legal guidance and property owner concerns. However, the scale and impact
of the proposed changes warrant careful scrutiny.
According to the staff report, the amendment worild remove 17 Housing Element Opportunity Sites
and add ffio new sites, resulting in a net loss of 15 sites and 5,431 units from the Housing Element
Sites Inventory. The unit loss by income category is as follows:
* 843 very low-income units
* 455 low-income units
* 869 moderate-income units
* 3,264 above-moderate units
When Costa Mesa adopted its Sixth Cycle Housing Element, it identified total site capacity for
17,042 units to meet a Regional Housing Needs Assessment (RHNA) obligation of 11,760 units.
This created a 45 percent buffer above the required allocation. Buffers are not surplus housing; they
are planning safeguards that accorint for sites that do not develop as anticipated, reductions in
density, feasibility constraints, or changes in market conditions.
If the City removes 5,431 units from its adopted inventory of 17,042 units, the remaining theoretical
capacity would be approximately 11,611 uiffts. This amount falls below the City's RHNA
requirement of 11,760 units. In practical terms, this action does not merely eliminate the 45 percent
buffer - it reduces total site capacity below what is required to accommodate the City's assigned
housing need.
Under Governrnent Code § 65863 (No Net Loss), when a jurisdiction takes a legislative action that
results in insufficient site capacity to accommodate its remainingaRHNA by income category, the
City must make formal findings and, if a deficit exists, identify and make available additional
adequate sites within 180 days. Because this amendment reduces total site capacity below RHNA, it
1
triggers the City's No Net Loss obligations immediately upon adoption.
The income distribution of the lost capacity further heightens concern. Costa Mesa's RHNA
obligation includes 2,821 veiy low-income rinits and 1,632 low-income rinits. To date, the City has
permitted only 98 very low-income units (approximately 3 percent of its very low-income RHNA)
and 162 low-income units (approximately 9 percent of its low-income RHNA). These are the
categories where progress is most limited and where site adequacy is most critical.
The amendment would remove 843 very low-income units and 455 low-income units from the
City's assumed site capacity. The central issue is not merely the number of units being removed, but
whether the remaining inventory demonstrate sufficient capacity to accommodate the City's
remaining unmet need in these categories. The staff report itself acknowledges that this action
removes sites needed to meet RFnSJA in the low- and very low-income categories. Because No Net
Loss requirements apply by income category-not merely in aggregate-any reduction that results
in insufficient remaining lower-income site capacity obligates the City to identify replacement sites
within 180 days.
Reopening the Housing Element mid-cycle introduces uncertainty and places the City in a reactive
posture at a time when lower-income production remains substantially behind schedule. Identifying
feasible sites capable of accommodating very low- and low-income housing at required minimum
densities is significantly more complex than identifying sites for above-moderate housing.
We understand the City's effort to respond to legal developments and property owner requests.
However, Housing Element implementation must balance private interests with the City's statutoiy
obligation to plan for and accommodate housing for lower-income households. Removing 5,431
units of planned capacity without concurrently identifying specific replacement sites creates
measurable risk to compliance and to the City's ability to meet its lower-income housing
obligations.
Accordingly, we respectfully urge the Planning Commission to ensure that any recommendation to
the City Council is paired with a clear and transparent corrective strategy, including:
1. A defined public timeline for identifying and rezoning replacement sites sufficient to
eliminate the site deficit and address the No Net Loss.
2. A commitment to restore at minimum a 15-20 percent RHNA buffer to provide planning
stability and prevent a future No Net Loss.
3. A clear program on how very low- and low-income site capacity will be restored and
maintained during the planning period.
4. Ongoing coordination with the California Department of Housing and Community
Development to ensure continued compliance.
5. The City Should increase its Inclusionary Housing Ordinance from 10% to 15% to ensure
that affordable housing is concurrently being built on opportunity sites to prevent more No
Net Loss situations.
Costa Mesa's housing challenges require durable and proactive plaru'iing solutions. The numbers
presented in the staff report demonstrate that this amendment has significant consequences for total
capacity and for lower-income site adequacy. We urge the Commission to proceed with caution and
to ensure that restoration of lower-income housing capacity occurs concurrently and transparently
We look forward to working with the City of Costa Mesa to support the creation of affordable
housing that meets the needs of our community. If you have any questions, please feel free to
2
contact me at (949) 250-0909 or cesarc@jkennedycommission.org.
Sincerely,
Cesar Covamibias
Executive Director
PARTIDA, ANNA
From:
Sent:
To:
Cc:
Subject:
Sue Lester <esellester@gmail.com>
Monday, February 23, 2026 2:15 PM
MARTINEZ, DAVID; DICKSON, ROBERT; ROJAS, JOHNNY;
karenklepack@costamesaca.gov; VALLARTA, ANGELY; ZICH, JON
PARTIDA, ANNA
All Planning Commissioners re: CM Women's Club (CMWC)
Dear Members of the Planning Commission,
It is my intention to attend tonight's Planning Commission Meeting, however, I may not be able to make it in time. I
would like this to be included as a part of the record in my absence pertaining to Item 1. under Public Hearings - Housing
Element (2021-2029) Sites Rezoning
My letter is to support a letter written by Sandi Scheafer to the City if of Costa Mesa and its Planning Commission on
behalf of the CMWC, to have the Costa Mesa Women's Club Property, located at 610 W.l8th Street in Costa Mesa,
removed from the list of "Opportunity Sites in the Housing Sites Element."
At the last planning commission meeting, prominent families/business entities were successful in having their properties
removed from the list. While I acknowledge the importance of the invaluable financial contributions these entities have
and continue to contribute to our community, they are not the only ones making significant contributions.
The CM Women's Club has been in existence for roughly 115 years, Although their contribution to our community has
been different than that of the wealthy and powerful, it isn't any less valuable to the parts of the community it has and
continues to serve. Located on the Westside, an area that is historically underserved and underrepresented, it serves as
a safe place to meet, celebrate, and come together for a variety of reasons and the common good of families,
b usinesses, groups, and organizations throughout our city. Safe, inclusive, welcoming locations like this are needed now
more than ever!
As a member of the CMWC for almost ten years, I can attest to the good work being done by this wonderful,
multigenerational women's organization. The CMWC raises money for local charities, volunteers time and resources to
support a multitude of local worthwhile organizations and events across and beyond our city's borders.
Why should this property be removed from your list?
1. The Women's Club has no intention of selling or redeveloping this property.
2. By rezoning this property and including it on your list for "opportunity sites for
housing" would be deliberately misleading because it is NOT available.
3. You will essentially be painting a huge target on this property and the backs of these fine ladies to then be
pursued and hounded by unscrupulous land and real estate developers and self serving elected officials trying to
get
their hands on this property... and yes, this has already happened more than
once.
The CMWC deserves your support and for you to respect their wishes for their own property. Don't turn your back on
115 years worth of service and support to this community. The Community and the CMWC deserves better.
Thank you in advance for your thoughtful consideration.
Respectfully,
1
Sue Lester
Costa Mesa resident/ community volunteer
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From:GREEN, BRENDA
To:PARTIDA, ANNA
Subject:FW: PC Hrg - 02-23-2026 - Public Comment - Public hearing item 1
Date:Monday, February 23, 2026 5:37:53 PM
Attachments:02-23-2026 LT PC objecting to recd code amd per HE housing program (SENT).pdf
Exhibit 1-5.pdf
image001.wmz
image002.png
image003.png
image004.png
image005.png
image006.png
Respectfully,
Brenda Green
City Clerk
City Clerk’s Office | (714) 754-5221
77 Fair Drive | Costa Mesa | CA 92626
As City Hall has reopened, we encourage the public to take advantage of our appointment system.
Appointments can be made at www.costamesaca.gov/appointments. Please note that It is
required that all guests check in with our Concierge Staff, located on the 1st Floor Lobby, upon arrival
at City Hall.
From: Christopher Brancart <cbrancart@brancart.com>
Sent: Monday, February 23, 2026 11:34 AM
To: HALLIGAN, MICHELLE <MICHELLE.HALLIGAN@costamesaca.gov>; MCGILL, ANNA
<Anna.Mcgill@costamesaca.gov>; TAI, CARRIE <Carrie.Tai@costamesaca.gov>; CARON, MARTINA
<Martina.Caron@costamesaca.gov>; COLGAN, JULIE <JULIE.COLGAN@costamesaca.gov>;
OOSTERHOF, NAOMI <NAOMI.OOSTERHOF@costamesaca.gov>; PARTIDA, ANNA
<ANNA.PARTIDA@costamesaca.gov>; CITY CLERK <CITYCLERK@costamesaca.gov>; PLANNING INFO
<planninginfo@costamesaca.gov>
Subject: PC Hrg - 02-23-2026 - Public Comment - Public hearing item 1
Please see the attached letter regarding tonight's public hearing before the Planning
Commission, item 1, re code amendments to implement the City's Housing Element.
The exhibits referenced in the attached letter are submitted in a separate file, Exhibits 1-5.
Please post this comment and include it in tonight's hearing record.
Thank you.
--
Christopher Brancart
Brancart & Brancart
(650) 879-0141 (voice)
(650) 879-1103 (fax)
CONFIDENTIALITY NOTICE: This message is intended only for the use of the individual or entity to
which it is addressed and may contain information that is privileged, confidential, and exempt from
disclosure under applicable law. If the reader of this message is not the intended recipient, please
call me. Thank you.
CAUTION: This email originated from outside of the organization. Do not click links or
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BRANCART & BRANCART
ATTORNEYS AT LAW
Christopher Brancart P. O. BOX 686 Telephone (650) 879-0141
Elizabeth Brancart PESCADERO, CA 94060 Facsimile (650) 879-1103
www.brancart.com
Street Address
8205 Pescadero Road
Loma Mar, California 94021
February 23, 2026
Via Email and Facsimile
Michelle Halligan, Sr Planner
Anna McGill, Adv Planning Mgr
Carrie Tai, Director
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Fax: (714) 754-4856
michelle.halligan@costamesaca.gov
anna.mcgill@costamesaca.gov
carrie.tai@costamesaca.gov
Jeffrey Harlan, Chair
Planning Commission
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Fax: (714) 754-5028
pcpubliccomments@costamesaca.gov
cityclerk@costamesaca.gov
planninginfo@costamesaca.gov
Re:Planning Commission Agenda: Public Hearing Item 1
Meeting: February 23, 2026
Missed Opportunity: Objections, Issues, and Concerns
Dear Gentlepersons:
On February 9, 2026, the Planning Commission conducted a public hearing
and adopted a resolution recommending code amendments to implement the
following Housing Programs pursuant to the City’s Sixth Cycle (2021–2029)
Housing Element:
1. Program 2O (Definition of Single Housekeeping Unit): That the City
will “review and revise the definition of ‘single housekeeping unit’ within
the zoning code to provide greater flexibility in consideration of
accommodating a variety of household situations for related and unrelated
individuals living together.”
Planning Commission
February 23, 2026
Page 2
2. Program 2P (Group Homes): That the City will “review and adopt
revisions to its zoning code applicable to group homes to affirmatively
further fair housing and comply with fair housing laws per the [following]
objective: review and revise the City’s zoning code and application
procedures applicable to group homes to promote objectivity and greater
approval certainty similar to other residential uses.”
3. Program 2N (Reasonable Accommodation): That the City will
“review and adopt revisions to its Reasonable Accommodation process to be
consistent with State and federal fair housing requirements.”
As addressed in my last letter, dated February 9, 2026, the code amendments
recommended in the Commission’s February 9th resolution do not
meaningfully implement any of these three Housing Programs, as required
under the City’s Sixth Cycle (2021–2029) Housing Element. For reference, a
copy of my letter, dated February 9, is attached as Exhibit 1.
Tonight’s hearing misses an opportunity to address these deficiencies in that
the Commission’s February 9th resolution fails to considered the sufficiency of the
City’s implementation of Housing Programs 2N, 2O, and 2P in light of my last
letter and the following materials that are directly related to this matter:
• HCD’s Group Home Technical Advisory , dated December 2022
(Exhibit 2);
• The Attorney General’s brief, filed June 29, 2023, analyzing the
unlawful provisions in the City’s current group home regulations
(Exhibit 3); and,
• HCD’s Letter, dated November 29, 2023 (Exhibit 4);
• The Settlement Agreement between Insight and the City, dated
October 24, 2025 (Exhibit 5).
* * *
Planning Commission
February 23, 2026
Page 3
The Ohio House and its residents urge the Planning Commission to review
and revise its February 9th resolution recommending code amendment regarding
Housing Programs 2N, 2O, and 2P in light of these authorities.
Thank you for your consideration.
/s/ Christopher Brancart
cbrancart@brancart.com
Enclosures: Exhibits 1-5
Exhibit 1
BRANCART & BRANCART
ATTORNEYS AT LAW
Christopher Brancart P. O. BOX 686 Telephone (650) 879-0141
Elizabeth Brancart PESCADERO, CA 94060 Facsimile (650) 879-1103
www.brancart.com
Street Address
8205 Pescadero Road
Loma Mar, California 94021
February 9, 2026
Via Email and Facsimile
Michelle Halligan, Sr Planner
Anna McGill, Adv Planning Mgr
Carrie Tai, Director
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Fax: (714) 754-4856
michelle.halligan@costamesaca.gov
anna.mcgill@costamesaca.gov
carrie.tai@costamesaca.gov
Jeffrey Harlan, Chair
Planning Commission
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Fax: (714) 754-5028
pcpubliccomments@costamesaca.gov
cityclerk@costamesaca.gov
planninginfo@costamesaca.gov
Re:Planning Commission Agenda Item PH-1
Meeting: February 9, 2026
Objections, Issues, and Concerns
Dear Gentlepersons:
I write on behalf of The Ohio House and its residents, along with present
and former Group Home owners, operators, and residents to address several issues
regarding Agenda Item PH-1 to be heard, considered and acted upon by the
Planning Commission at a public hearing on Monday, February 9, 2026. Item PH-
1 asks the Planning Commission to approve a resolution recommending the
adoption by the City Council of several code amendment purporting to implement
specific housing programs set forth in the City’s Sixth Cycle (2021-2029) Housing
Element.
-1-
Planning Commission
February 9, 2026
Page 2
1. Issues Addressed in This Letter
This letter focuses exclusively on code amendments purporting to
implement Housing Programs regarding the regulation of housing for persons with
disability; specifically:
1. Program 2O (Definition of Single Housekeeping Unit): That the City
will “review and revise the definition of ‘single housekeeping unit’
within the zoning code to provide greater flexibility in consideration
of accommodating a variety of household situations for related and
unrelated individuals living together.”
2. Program 2P (Group Homes): That the City will “review and adopt
revisions to its zoning code applicable to group homes to
affirmatively further fair housing and comply with fair housing laws
per the [following] objective: Review and revise the City’s zoning
code and application procedures applicable to group homes to
promote objectivity and greater approval certainty similar to other
residential uses.”
3. Program 2N (Reasonable Accommodation): That the City will
“review and adopt revisions to its Reasonable Accommodation
process to be consistent with State and federal fair housing
requirements.”
To implement these programs, the City proposes to amended the following
provisions of the City’s zoning code (Title 13), set forth in Exhibit 3 in the
Planning Commission Agenda Report:
4. Exhibit A: Chapter 1, Article 2, Definitions
5. Exhibit D: Chapter IV, Citywide Land Use Matrix
6. Exhibit H: Chapter IX, Article 15, Reasonable Accommodations
7. Exhibit K: Chapter XV, Group Homes; and,
8. Exhibit L: Chapter XVI, Group Homes in the R2-MD, R2-HD and R3
Residential Zones and the PDR-LD, PDR-MD, PDR-HD, PDR-NCM,
-2-
Planning Commission
February 9, 2026
Page 3
PDC, and PDI (Planned Development Zones)
and the related Title 9's Group Home Operator’s Permit, set forth in Exhibit 5.
These code amendments fail to meet the requirements in Housing Programs
2N, 2O, and 2P, but also, if enacted as presently proposed, each amendment
violates three federal laws – the Fair Housing Act, ADA, and Rehabilitation Act –
and several state statutes, including the California Government Code §§ 12955,
65008, 8899.50, and 11135 as well as the California Constitution.
2. The Proposed Amendment of the Definition of Single
Housekeeping Unit fails to implement the requirements of the City’s
Housing Program 2O and promise to violate federal and state fair
housing laws.
The definition of Single Housekeeping Unit (SHU) is the pivotal zoning
provisions that governs housing opportunities throughout Costa M esa’s residential
districts. Among all Residential Uses listed in the City’s Land Use M atrix,
CMMC TABLE 13-30, a Single Housekeeping Unit is the only use permitted of
right in every residential districts. Thus, if the City chooses to classify an residential
occupancy as a SHU, then that household may occupy any dwelling in Costa Mesa pursuant to
the zoning code. If the City refuses to classify a residential occupancy as a SHU, then that
household is prohibited from the City’s residential districts unless specially or conditionally
permitted by the City or compelled by state statute.
The City proposes to implement Housing Plan Program 2O (“Definition of Single
Housekeeping Unit”) by amending the current definition of Single Housekeeping Unit as
follows:
-3-
Planning Commission
February 9, 2026
Page 4
We urge the Planning Commission to reject the resolution recommending the
adoption of the proposed amended definition of Single Housekeeping Unit (SHU)
because it fails to implement Housing Program 2O, invites unlawful and arbitrary
enforcement, and violates state and federal fair housing statutes.
a. The Proposed SHU Definition Perpetuates The City
Discrimination against Persons with Disabilities
The City last amended its SHU definition in 2014 as part of Ordinance 14-
13, the City’s sweeping revision of its zoning code to compel the closure of
existing group homes in R1 (SFR) districts – and to prohibit any new group homes
there – unless the household qualified for issuance of a specially use permit.
(This same framework was enacted by the City in 2015 to group homes in the
City’s MFR districts, as discussed below.) A fundamental, necessary condition of
the City’s discriminatory zoning restrictions enacted under Ordinance 14-13 was
the simultaneous adoption of the current SHU definition. Given its inclusion in
Ordinance 14-13, it should come as no surprise that the City repeatedly has
admitted that the purpose of the current SHU definition was to exclude group
homes from the definition and privilege afforded households classified as SHUs.
-4-
Planning Commission
February 9, 2026
Page 5
To achieve this result, the City includes a facially discriminatory
presumption, a list of subjective, standardless criteria (carried forward in the
proposed amendment), and several of observable indicia “that a household is not
operating as a single housekeeping unit,” including more than one rental
agreement, private, separate entrances, separate food storage and refrigerators.
The proposed amendment deletes the facially discriminatory presumption but also
deletes the only objective, observable standards (locks, entrance, refrigerators) in
the pivotal provisions. While those observable indicia were enacted for a
discriminatory purpose, they at least had the virtue of being an objective standard
that could be applied to readily observable conditions (lock, entrance,
refrigerators). Once observable conditions are stripped from the definition, the
proposed amendment devolves into a series of necessary conditions lacking
objective standard and impossible to apply without invading a household’s
constitutionally protected privacy.
The upshot is chilling: If applied as written, there are few if any households
that could qualify as SHUs. Worse still, the proposed definition commits the City
to police personal relationship among every dwelling’s occupants and to
monitor the domestic affair of every household in Costa Mesa.
b. The Text and Terms of the Proposed Single Housekeeping Unit
Definition Offends Common Sense, Valid Zoning Principles, and Fair
Housing Laws
The proposed SHU amendment lacks valid, measurable, discernable,
objective standards to determine whether a household qualifies as a SHU.
Moreover, even if it provided valid standards, its application depends on the City’s
observations and determination of the nature and quality of personal relationships
amongst household members and their domestic affair within the privacy of their
dwellings. In sum, the proposed SHU definition is useless in application, invalid
on its face, and unconstitutional in effect.1
1 There are several ways to assess the efficacy of a zoning definition. We can disaggregate its
terms into necessary and sufficient conditions. We can evaluate whether its intention (what it
connotes) aligns with its extension (what it denotes). But under any test, the ultim ate question is
whether the text provides objective standards that can be consistently applied to observable facts
reflecting conditions that endure over time. Thus, most zoning regulation concern the physical
-5-
Planning Commission
February 9, 2026
Page 6
As drafted, the proposed definition consists of a series of necessary
conditions regarding personal relationships that each occupant must satisfy and
several domestic affairs that each occupant must perform. Each of these
conditions is necessary. In other words, if the City decides that any one occupant
fails to met any one of the following conditions, then the household is disqualified
as a Single Housekeeping Unit:
Single housekeeping unit. The occupants of a dwelling unit have [1]
established ties and [2] familiarity with each other, including joint [3] use
of and [4] responsibility for common areas, which includes [5] interaction
with each other, [6] shared meals, [7] household activities , and [8]
expenses and responsibilities; where [9] residency is mutually agreed by
all residents, is [10] not transitory in nature and the residential activities of
the household are conducted on a [11] not-for-profit basis.
A close examination of these necessary conditions demonstrates why the proposed
definition is not only profoundly flawed for purported purpose (implementing
Program 2O), but also wholly dependent on the City violating the California
Constitution, fair housing law, and sound zoning principles.
as built environment or readily observable externalities. The proposed amended SHU definition
meets none of these criteria under any framework.
-6-
Planning Commission
February 9, 2026
Page 7
No. Necessary
Condition
Condition’s
Objective
Standards
Application Can City Lawfully
Observe and Verify
Facts to Determine
Condition
01 Established
Ties between
each occupant
with each other
occupant.
No, lacks
objective
criteria
measuring
quality or
quantity
a. Necessary condition
must exist throughout the
every persons occupancy
at any point in time.
b. To determine whether
household’s “established
ties” are sufficient, each
one-to-one relationship
amongst occupants must
be evaluated by the City;
thus, in a six member
household, there are 15
unique relationships to
be evaluated. C(n,r)[i.e.,
“n chose 2"].
Yes, for some households,
but only by proxy, limiting
Establish Ties to
relationships defined by
law (e.g., consanguinity),
and thereby discriminating
against non-traditional
families.
No, this conditions lack
any objective criteria;
moreover, this condition
involves personal
relationships that are
inherently difficult to
observe and assess since
relationships transpire
within sphere of
constitutionally protected
privacy
02 Familiarity
between each
occupant with
each other
occupant.
No, id. Id.No, this conditions lack
any objective criteria;
moreover, this condition
involves personal
relationships that are
inherently difficult to
observe and assess since
relationships transpire
within sphere of
constitutionally protected
privacy
-7-
Planning Commission
February 9, 2026
Page 8
No. Necessary
Condition
Condition’s
Objective
Standards
Application Can City Lawfully
Observe and Verify
Facts to Determine
Condition
03 Joint use of . . .
common areas
Yes, in part,
because -
unlike other
conditions -
common areas
are observable.
No, since use
lacks objective
criteria
measuring
quality or
quantity
Id.No. This condition lack an
objective standard;
moreover, it occurs within
the privacy of dwelling.
04 Joint . . .
responsibility
for common
areas
No, lacks
objective
criteria
measuring
quality or
quantity
Id.No. This condition lack an
objective standard;
moreover, it occurs within
the privacy of dwelling.
05 Interaction
with each other
No, id. Id.No, this conditions lack
any objective criteria;
moreover, this condition
involves personal
relationships that are
inherently difficult to
observe and assess since
relationships transpire
within sphere of
constitutionally protected
privacy
-8-
Planning Commission
February 9, 2026
Page 9
No. Necessary
Condition
Condition’s
Objective
Standards
Application Can City Lawfully
Observe and Verify
Facts to Determine
Condition
06 Shared meals No, id. Id., but measured by
participate rate of each
occupant. (i.e., Assume
five occupant and five
"household activities,"
the City must examine
each occupants
participation rate in a
total of 25 activities.
Cartesian Product (mxn)
No. The scope, frequency,
and participation rate
transpires within the
privacy of dwelling
07 Shared . . .
household
activities
No, id. Id.,
No. This condition lacks
an objective, reliable
standard. Moreover,
participation of domestic
activities transpires within
the privacy of dwelling.
08 Shared . . .
expenses
No, Id. Yes, with an
administrative subpoena.
No, unless the City obtains
an administrative subpoena
to obtain detailed
statements of household
expenses and contributions
by each member of the
household
-9-
Planning Commission
February 9, 2026
Page 10
No. Necessary
Condition
Condition’s
Objective
Standards
Application Can City Lawfully
Observe and Verify
Facts to Determine
Condition
09 Residency is
mutually
agreed by all
residents
No, Id., unless
condition is
intended to
empowers any
occupant at the
time to bar any
prospective
occupant or
oust any
existing
occupant from
a household,
regardless of
that occupant's
age or
maturity,
consensus of
the other
occupants, or
the basis for
the preclusion
or ouster.
Id.Possibility, but if and only
if the City obtains
confirmation from each
occupant who occupied a
dwelling during its
purported status as a SHU.
10 not transitory
in nature
No., Id. No, without a duration of
occupancy specified, this
necessary condition
cannot applied.
No, unless the City obtains
an administrative
subpoena, permitting the
City to lawfully review
records or compel
statements that establish
the date each occupant
joined a household. This
information, however, is
meaningless without a
temporal criterion.
-10-
Planning Commission
February 9, 2026
Page 11
No. Necessary
Condition
Condition’s
Objective
Standards
Application Can City Lawfully
Observe and Verify
Facts to Determine
Condition
11 residential
activities of the
household are
conducted on a
not-for-profit
basis
No, Id. Yes, with an
administrative subpoena,
but if and only if the City
can verify that the
housing provider is
either is incorporated as a
nonprofit or operates at a
loss and that each
occupant, regardless of
age, infirmity, or
capacity pays an equal
share of the housing
expense
No, unless the City obtains
an administrative
subpoena, permitting the
City to lawfully obtain
records showing that a
housing provider is a
nonprofit or operates at a
loss and detailed financial
records reflecting
household expenses and
contributions by each
occupant.
Does the proposed SHU definition provide with the City’s zoning and code
enforcers (as well as its citizens) with robust, objective standards that can be
reliably applied to readily observable facts reflecting conditions that endure over
the lifetime of a household? The answer is obvious no. Worse, if you assume that
the proposed definition means what it says, and its conditions were uniformly
applied to the wide variety of household that exist in Costa Mesa2, very few of
those households could qualify as Single Housekeeping Unit. Worse still, under
the proposed definition, the City is committed to policing the personal relationship
and domestic affairs of its citizens, an undertaking that is as unpopular as it is
unconstitutional.
We urge the Planning Commission to reject the resolution recommending
the adoption of the proposed SHU definition.
3. The proposed amendments to zoning regulations governing group
homes fail to implement the objective of the City’s Housing Program 2P,
perpetuate discrimination against disabled persons, and promise to violate
federal and state fair housing laws.
2 Please refer to the City’s demographic profile in the City’s Sixth Cycle Housing Element.
-11-
Planning Commission
February 9, 2026
Page 12
The City proposes to implement Housing Plan Program 2P (“Group
Homes”) by not making any substantive changes to its current group home
regulations, codified as CMMC Title 13, Chaps. XV and XVI, and CMMC Title 9,
Chap. II, Art. 23. See Meeting Packet, Exhibit 3. As a result, the City’s group
home regulations continue to discriminate against housing for disabled persons, as
reflected in Exhibit 1 hereto.
The only substantive change proposed by the City is to import the definition
of “operator” into the definition of group home or sober living home. That
amendment is deeply flawed and will not cure the problems with the City’s current
group home regulations. The operator definition is standardless, circular, and
assumes that landlords renting to non-disabled persons do not engage in
placement, rule-setting, and behavioral oversight of their tenants—an
demonstrably untrue assumption.
We urge the Planning Commission to reject the resolution recommending
the adoption of the proposed amendments to the group home regulations because
they are insufficient.
4. The proposed amendments to the City’s RA regulations fail to
implement the requirements of the City’s Housing Program 2N,
perpetuate discrimination against disabled persons, and promise to
continue violating federal and state fair housing laws.
The City proposes to implement Housing Plan Program 2N (“Reasonable
Accommodation”) by making modest changes to the existing regulation that fail to
fulfill this Housing Program’s intent and continue a policy in violation of federal
and state fair housing laws.
To implement Program 2N, the City must amend the current regulation to
address each of the issues raised in DRC’s letter to the City dated January 12,
2026, a copy of which is attached as Exhibit 2. In addition, the City must provide a
cogent definition of “institutionalization” if it intends to apply that criterion as a
basis for denying RA requests.
We urge the Planning Commission to reject the resolution recommending
-12-
Planning Commission
February 9, 2026
Page 13
adoption of the proposed RA regulation because it is insufficient.
Thank you for your consideration.
/s/ Christopher Brancart
cbrancart@brancart.com
-13-
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8
0
1
(
a
)
(
5
)
;
H
e
a
l
t
h
&
S
a
f
e
t
y
C
o
d
e
§
1
5
6
8
.
0
2
)
;
a
l
c
o
h
o
l
i
s
m
a
n
d
d
r
u
g
a
b
u
s
e
f
a
c
i
l
i
t
i
e
s
(
H
e
al
t
h
&
Sa
f
e
t
y
C
o
d
e
§
§
1
1
8
3
4
.
0
2
—11
8
3
4
.
3
0
)
;
p
e
d
i
a
t
r
i
c
d
a
y
h
e
a
l
t
h
a
n
d
r
e
s
p
i
t
e
c
a
r
e
f
a
c
i
l
i
t
i
e
s
(
H
e
a
l
t
h
&
S
a
f
e
t
y
C
o
d
e
§
1
7
6
0
e
t
s
e
q
.
)
;
r
es
i
d
e
n
t
i
a
l
h
e
a
l
t
h
c
a
r
e
f
a
c
i
l
i
t
i
e
s
,
in
c
l
u
d
i
n
g
c
o
n
g
r
e
g
a
t
e
l
i
v
i
n
g
h
e
a
l
t
h
f
a
c
i
l
i
t
i
e
s
(
H
e
a
l
t
h
&
S
a
f
e
t
y
C
o
d
e
§
§
1
2
6
5
—12
7
1
.
1
,
1
2
5
0
(
i
)
,
1
2
5
0
(
e
)
,
(
h
)
)
;
f
a
m
i
l
y
c
a
r
e
h
o
m
e
,
f
o
s
t
e
r
h
o
m
e
,
g
r
o
u
p
h
o
m
e
f
o
r
t
h
e
me
n
t
a
l
l
y
d
i
s
o
r
d
e
r
e
d
o
r
o
t
h
e
r
w
i
s
e
h
a
n
d
i
c
a
p
p
e
d
p
e
r
s
o
n
s
o
r
d
e
p
e
n
d
e
n
t
a
n
d
n
e
g
l
e
c
t
e
d
c
h
i
l
d
r
e
n
(
W
e
l
.
&
I
n
s
t
.
C
o
d
e
§
§
5
1
1
5
—51
2
0
)
.
”
C
M
M
C
1
3
-06
.
2So
b
e
r
l
i
v
i
n
g
h
o
m
e
me
a
n
s
a
g
r
o
u
p
h
o
m
e
f
o
r
p
e
r
s
o
n
s
w
h
o
a
r
e
r
e
c
o
v
e
r
i
n
g
f
r
o
m
a
d
r
u
g
a
n
d
/
o
r
a
l
c
o
h
o
l
a
d
d
i
c
t
i
o
n
a
n
d
w
h
o
a
r
e
c
o
n
s
i
d
e
r
e
d
h
a
n
d
i
c
a
p
p
e
d
u
n
d
er
s
t
a
t
e
or
f
e
d
e
r
a
l
l
a
w
.
S
o
b
e
r
l
i
v
i
n
g
h
o
m
e
s
s
h
a
l
l
n
o
t
i
n
c
l
u
d
e
t
h
e
f
o
l
l
o
w
i
n
g
:
(
1
)
r
e
s
i
d
e
n
t
i
a
l
c
a
r
e
f
a
c
i
l
i
t
i
e
s
;
(
2
)
a
n
y
s
o
b
e
r
l
i
v
i
n
g
h
o
m
e
t
h
a
t
o
p
e
r
a
t
e
s
a
s
a
s
i
n
g
l
e
h
o
u
s
e
k
e
e
p
i
n
g
un
i
t
.
”
C
M
M
C
1
3
-06
.
3Gr
o
u
p
h
o
m
e
.
A fa
c
i
l
i
t
y
t
h
a
t
i
s
b
e
i
n
g
u
s
e
d
a
s
a
s
u
p
p
o
r
t
i
v
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l
i
v
i
n
g
e
n
v
i
r
o
n
m
e
n
t
f
o
r
p
e
r
s
o
n
s
w
h
o
a
r
e
c
o
n
s
i
d
e
r
e
d
h
a
n
d
i
c
a
p
p
e
d
u
n
d
e
r
s
t
a
t
e
o
r
f
e
d
e
ra
l
l
a
w
.
A
g
r
o
u
p
ho
m
e
o
p
e
r
a
t
e
d
b
y
a
s
i
n
g
l
e
o
p
e
r
a
t
o
r
o
r
s
e
r
v
i
c
e
p
r
o
v
i
d
e
r
(
w
h
e
t
h
e
r
l
i
c
e
n
s
e
d
o
r
u
n
l
i
c
e
n
s
e
d
)
c
o
n
s
t
i
t
u
t
e
s
a
s
i
n
g
l
e
f
a
c
i
l
i
t
y
,
w
h
e
t
h
e
r
t
h
e
f
a
c
i
l
i
t
y
o
c
c
u
p
i
e
s
o
n
e
(
1
)
o
r
mo
r
e
d
w
e
l
l
i
n
g
u
n
i
t
s
.
G
r
o
u
p
h
o
m
e
s
s
h
a
l
l
n
o
t
i
n
c
l
u
d
e
t
h
e
f
o
l
l
o
w
i
n
g
:
(
1
)
r
e
s
i
d
e
n
t
i
a
l
c
a
r
e
f
a
c
i
l
i
t
i
e
s
;
(
2
)
a
n
y
g
r
o
u
p
h
o
m
e
t
h
a
t
o
p
er
a
t
e
s
a
s
a
s
i
n
g
l
e
h
o
u
s
e
k
e
e
p
i
n
g
u
n
i
t
.
”
CM
M
C
1
3
-06
.
4
“
Bo
a
r
d
i
n
g
h
o
u
s
e
.
A
r
e
s
i
d
e
n
c
e
o
r
d
w
e
l
l
i
n
g
,
o
t
h
e
r
t
h
a
n
a
h
o
t
e
l
,
w
h
e
r
e
i
n
r
o
o
m
s
a
r
e
r
e
n
t
e
d
u
n
d
e
r
t
w
o
(
2
)
o
r
m
o
r
e
s
e
p
a
r
a
t
e
w
r
i
t
t
e
n
o
r
o
r
a
l
r
e
n
t
a
l
a
gr
e
e
m
e
n
t
s
,
le
a
s
e
s
o
r
s
u
b
l
e
a
s
e
s
o
r
c
o
m
b
i
n
a
t
i
o
n
t
h
e
r
e
o
f
,
w
h
e
t
h
e
r
o
r
n
o
t
t
h
e
o
w
n
e
r
,
a
g
e
n
t
o
r
r
e
n
t
a
l
m
a
n
a
g
e
r
r
e
s
i
d
e
s
w
i
t
h
i
n
t
h
e
r
e
s
i
d
e
n
ce
.
B
o
a
r
d
i
n
g
h
o
u
s
e
,
s
m
a
l
l
m
e
a
n
s
t
w
o
(2
)
o
r
f
e
w
e
r
r
o
o
m
s
b
e
i
n
g
r
e
n
t
e
d
.
B
o
a
r
d
i
n
g
h
o
u
s
e
,
l
a
r
g
e
m
e
a
n
s
t
h
r
e
e
(
3
)
t
o
s
i
x
(
6
)
r
o
o
m
s
b
e
i
n
g
r
e
n
t
e
d
.
B
o
a
r
d
i
n
g
h
o
u
s
e
s
r
e
n
t
i
n
g
m
or
e
t
h
a
n
s
i
x
(
6
)
r
o
o
m
s
a
r
e
pr
o
h
i
b
i
t
e
d
.
”
CM
M
C
1
3
-06
.
5
“
Dw
e
l
l
i
n
g
,
m
u
l
t
i
-fa
m
i
l
y
“D
w
e
l
l
i
n
g
,
m
u
l
t
i
-fa
m
i
l
y
”
o
r
“
m
u
l
t
i
-fa
m
i
l
y
d
w
e
l
l
i
n
g
”
i
s
a
b
u
i
l
d
i
n
g
o
r
b
u
i
l
d
i
n
g
s
o
f
p
e
r
m
a
n
e
n
t
c
h
a
r
a
c
t
e
r
p
l
a
c
e
d
o
n
o
n
e
(
1
)
l
o
t
w
h
i
c
h
i
s
de
s
i
g
n
e
d
o
r
u
s
e
d
f
o
r
r
e
s
i
d
e
n
t
i
a
l
o
c
c
u
p
a
n
c
y
b
y
t
w
o
(
2
)
o
r
m
o
r
e
f
a
m
i
l
i
e
s
.
”
C
M
M
C
1
3
-06
.
6 “C
C
#
”
re
f
e
r
s
t
o
p
a
g
e
n
u
m
b
e
r
s
i
n
t
h
e
e
x
c
e
r
p
t
o
f
t
h
e
cu
r
r
e
n
t
Co
s
t
a
M
e
s
a
M
u
n
i
c
i
p
a
l
C
o
d
e
[a
s
o
f
0
5
/
0
9
/
2
0
2
1
]
,
at
t
a
c
h
e
d
t
o
t
h
i
s
T
a
b
l
e
f
o
r
r
e
f
e
r
e
n
c
e
.
-14-
2
CM
M
C
R
e
g
u
l
a
t
i
o
n
s
G
o
v
e
r
n
i
n
g
Re
s
i
d
e
n
t
i
a
l
U
s
e
s
i
n
C
i
t
y
’
s
M
u
l
t
i
f
a
m
i
l
y
Di
s
t
r
i
c
t
s
So
b
e
r
L
i
v
i
n
g
H
o
m
e
2
Gr
o
u
p
H
o
m
e
3
Bo
a
r
d
i
n
g
h
o
u
s
e
,
Sm
a
l
l
<
3
r
e
n
t
a
l
ro
o
m
s
4
Bo
a
r
d
i
n
g
h
o
u
s
e
,
La
r
g
e
<
7
r
e
n
t
a
l
ro
o
m
s
Mu
l
t
i
-fa
m
i
l
y
Dw
e
l
l
i
n
g
5
Us
e
d
e
f
i
n
e
d
b
a
s
e
d
o
n
n
a
t
u
r
e
o
f
th
e
di
s
a
b
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l
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t
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o
f
d
w
e
l
l
i
n
g
’
s
re
s
i
d
e
n
t
s
,
C
M
M
C
13
-06
Ye
s
,
C
C
9
No
,
C
C
5
No
,
C
C
3
No
,
C
C
3
No
C
C
4
Pe
r
m
i
t
t
e
d
Z
o
n
i
n
g
D
i
s
t
r
i
c
t
Pe
r
m
i
t
t
e
d
i
n
R
e
s
i
d
e
n
t
ia
l
Z
o
n
i
n
g
D
i
s
t
r
i
c
t
,
CM
M
C
1
3
-30
,
1
3
-20
4
No
,
C
C
3
1
No
,
C
C
3
1
Ye
s
,
C
C
3
1
Ye
s
,
i
f
p
r
e
-
ex
i
s
t
i
n
g
,
C
C
5
4
;
No
,
i
f
n
e
w
,
C
C
3
1
Ye
s
,
C
C
3
1
Pe
r
m
i
t
t
e
d
i
n
M
u
l
t
i
f
a
m
i
l
y
Z
o
n
i
n
g
D
i
s
t
r
i
c
t
s
(R
2
-MD
,
R
2
-HD
,
R
3
)
,
C
M
M
C
1
3
-30
No
,
C
C
3
1
No
,
C
C
3
1
Ye
s
,
C
C
3
1
Ye
s
,
i
f
p
r
e
-
ex
i
s
t
i
n
g
,
C
C
5
4
;
No
,
i
f
n
e
w
,
C
C
3
1
Ye
s
,
C
C
3
1
Pe
r
m
i
t
t
e
d
i
n
P
l
a
n
n
e
d
D
e
v
e
l
o
p
m
e
n
t
Re
s
i
d
e
n
t
i
a
l
D
i
s
t
r
i
c
t
s
(
P
D
R
-LD
,
P
D
R
-MD
,
PD
R
-H
D
,
PR
D
-NC
M
,
P
D
C
,
P
D
I
)
,
C
M
M
C
1
3
-
30
,
1
3
-20
4
No
,
C
C
3
1
No
,
C
C
3
1
Ye
s
,
C
C
3
1
Ye
s
,
i
f
p
r
e
-
ex
i
s
t
i
n
g
,
C
C
5
4
;
No
,
i
f
n
e
w
,
C
C
3
1
Ye
s
,
C
C
3
1
Pe
r
m
i
t
t
e
d
i
n
I
n
s
t
i
t
u
t
i
o
n
a
l
&
R
e
c
r
e
a
t
i
o
n
a
l
(I
&
R
)
Zo
n
i
n
g
D
i
s
t
r
i
c
t
[
i
n
t
e
n
d
e
d
f
o
r
“re
c
r
e
a
t
i
o
n
,
o
p
e
n
s
p
a
c
e
,
h
e
a
l
t
h
,
p
u
b
l
i
c
se
r
v
i
c
e
s
,
”
13
-20
(
i
)
,
C
C
1
7
]
Ye
s
,
C
C
3
1
Ye
s
,
C
C
3
1
No
,
C
C
3
1
No
,
C
C
3
1
No
,
C
C
3
1
Sp
e
c
i
a
l
l
y
o
r
C
o
n
d
i
t
i
o
n
a
l
l
y
P
e
r
m
i
t
t
e
d
i
n
In
s
t
i
t
u
t
i
o
n
a
l
&
R
e
c
r
e
a
t
i
o
n
a
l
(I
&
R
)
Zo
n
i
n
g
Di
s
t
r
i
c
t
[
i
n
t
e
n
d
e
d
f
o
r
“re
c
r
e
a
t
i
o
n
,
o
p
e
n
sp
a
c
e
,
h
e
a
l
t
h
,
p
u
b
l
i
c
s
e
r
v
i
c
e
s
,
”
13
-20
(
i
)
,
CC
1
7
]
NA
,
C
C
3
1
NA
,
C
C
3
1
No
,
C
C
3
1
No
,
C
C
3
1
No
,
C
C
3
1
No
n
con
f
o
r
m
i
n
g
U
s
e
S
t
a
t
u
s
Ex
i
s
t
i
n
g
u
s
e
s
r
e
q
u
i
r
e
d
t
o
a
p
p
l
y
f
o
r
Sp
e
c
i
a
l
o
r
C
o
n
d
i
t
i
o
n
a
l
U
s
e
P
e
r
m
i
t
t
o
Ye
s
,
C
C
6
7
,
5
9
Ye
s
,
C
C
6
7
,
5
9
No
,
C
C
5
4
No
,
C
C
5
4
NA
,
C
C
3
1
-15-
3
CM
M
C
R
e
g
u
l
a
t
i
o
n
s
G
o
v
e
r
n
i
n
g
Re
s
i
d
e
n
t
i
a
l
U
s
e
s
i
n
C
i
t
y
’
s
M
u
l
t
i
f
a
m
i
l
y
Di
s
t
r
i
c
t
s
So
b
e
r
L
i
v
i
n
g
H
o
m
e
2
Gr
o
u
p
H
o
m
e
3
Bo
a
r
d
i
n
g
h
o
u
s
e
,
Sm
a
l
l
<
3
r
e
n
t
a
l
ro
o
m
s
4
Bo
a
r
d
i
n
g
h
o
u
s
e
,
La
r
g
e
<
7
r
e
n
t
a
l
ro
o
m
s
Mu
l
t
i
-fa
m
i
l
y
Dw
e
l
l
i
n
g
5
co
n
t
i
n
u
e
e
x
i
s
t
i
n
g
u
s
e
,
1
3
-32
4
,
1
3
-
20
7
.
1
v
e
r
s
u
s
1
3
-20
4
,
1
3
-3
0
Se
p
a
r
a
t
i
o
n
R
e
q
u
i
r
e
m
e
n
t
Se
p
a
r
a
t
i
o
n
r
e
q
u
i
r
e
m
e
n
t
i
m
p
o
s
e
d
o
n
ex
i
s
t
i
n
g
u
s
e
s
,
1
3
-32
2
,
1
3
-32
3
,
1
3
-32
4
ve
r
s
u
s
1
3
-30
,
1
3
-20
4
,
1
3
-20
7
.
1
Ye
s
:
A
t
l
e
a
s
t
6
5
0
fe
e
t
b
e
t
w
e
e
n
dw
e
l
l
i
n
g
a
n
d
a
n
y
gr
o
u
p
h
o
m
e
,
s
o
b
e
r
li
v
i
n
g
h
o
m
e
o
r
st
a
t
e
-li
c
e
n
s
e
d
d
r
u
g
an
d
a
l
c
o
h
o
l
tr
e
a
t
m
e
n
t
f
a
c
i
l
i
t
y
.
CC
6
6
-67
Ye
s
:
A
t
l
e
a
s
t
6
5
0
fe
e
t
b
e
t
w
e
e
n
dw
e
l
l
i
n
g
a
n
d
a
n
y
gr
o
u
p
h
o
m
e
,
s
o
b
e
r
li
v
i
n
g
h
o
m
e
o
r
s
t
a
t
e
-
li
c
e
n
s
e
d
d
r
u
g
a
n
d
al
c
o
h
o
l
t
r
e
a
t
m
e
n
t
fa
c
i
l
i
t
y
.
C
C
6
6
-67
No
,
C
C
5
4
No
,
C
C
5
4
NA
,
1
3
-30
Se
p
a
r
a
t
i
o
n
r
e
q
u
i
r
e
m
e
n
t
i
m
p
o
s
e
d
o
n
n
e
w
us
e
s
,
1
3
-32
2
,
1
3
-32
3
,
1
3
-32
4
v
e
r
s
u
s
1
3
-30
fn
7
Ye
s
:
A
t
l
e
a
s
t
6
5
0
fe
e
t
b
e
t
w
e
e
n
dw
e
l
l
i
n
g
a
n
d
a
n
y
gr
o
u
p
h
o
m
e
,
s
o
b
e
r
li
v
i
n
g
h
o
m
e
,
or
st
a
t
e
-li
c
e
n
s
e
d
d
r
u
g
an
d
a
l
c
o
h
o
l
tr
e
a
t
m
e
n
t
f
a
c
i
l
i
t
y
.
CC
6
6
-67
Ye
s
:
A
t
l
e
a
s
t
6
5
0
fe
e
t
b
e
t
w
e
e
n
dw
e
l
l
i
n
g
a
n
d
a
n
y
gr
o
u
p
h
o
m
e
,
s
o
b
e
r
li
v
i
n
g
h
o
m
e
,
or
s
t
a
t
e
-
li
c
e
n
s
e
d
d
r
u
g
a
n
d
al
c
o
h
o
l
t
r
e
a
t
m
e
n
t
fa
c
i
l
i
t
y
.
C
C
6
6
-67
Ye
s
:
S
m
a
l
l
bo
a
r
d
i
n
g
h
o
u
s
e
s
sh
a
l
l
l
o
c
a
t
e
a
t
le
a
s
t
s
i
x
hu
n
d
r
e
d
f
i
f
t
y
(6
5
0
)
fe
e
t
f
r
o
m
an
y
o
t
h
e
r
s
m
a
l
l
bo
a
r
d
i
n
g
h
o
u
s
e
.
CC
4
9
Ye
s
:
L
a
r
g
e
bo
a
r
d
i
n
g
h
o
u
s
e
s
sh
a
l
l
b
e
l
o
c
a
t
e
d
at
l
e
a
s
t
o
n
e
th
o
u
s
a
n
d
(
1
,
0
0
0
)
fe
e
t
a
w
a
y
f
r
o
m
an
y
o
t
h
e
r
bo
a
r
d
i
n
g
h
o
u
s
e
.
CC
4
9
NA
,
1
3
-30
Dw
e
l
l
i
n
g
O
p
e
r
a
t
o
r
’s
P
e
r
m
i
t
R
e
q
u
i
r
e
d
Ow
n
e
r
o
r
o
p
e
r
a
t
o
r
o
f
d
w
e
l
l
i
n
g
m
u
s
t
ob
t
a
i
n
a
n
“Op
e
r
a
t
o
r
’s
P
e
r
m
i
t
,
”
CM
M
C
1
3
-
32
3
,
9
-37
2
,
o
r
m
e
e
t
s
a
m
e
c
o
n
d
i
t
i
o
n
s
f
o
r
Ye
s
,
C
C
6
7
,
6
9
[C
U
P
]
;
Y
e
s
,
C
C
6
6
,
61
-63
[
S
U
P
]
Ye
s
,
C
C
6
7
,
6
9
[
C
U
P
]
;
Ye
s
,
C
C
6
6
,
6
1
-63
[S
U
P
]
No
No
No
-16-
4
CM
M
C
R
e
g
u
l
a
t
i
o
n
s
G
o
v
e
r
n
i
n
g
Re
s
i
d
e
n
t
i
a
l
U
s
e
s
i
n
C
i
t
y
’
s
M
u
l
t
i
f
a
m
i
l
y
Di
s
t
r
i
c
t
s
So
b
e
r
L
i
v
i
n
g
H
o
m
e
2
Gr
o
u
p
H
o
m
e
3
Bo
a
r
d
i
n
g
h
o
u
s
e
,
Sm
a
l
l
<
3
r
e
n
t
a
l
ro
o
m
s
4
Bo
a
r
d
i
n
g
h
o
u
s
e
,
La
r
g
e
<
7
r
e
n
t
a
l
ro
o
m
s
Mu
l
t
i
-fa
m
i
l
y
Dw
e
l
l
i
n
g
5
Op
e
r
a
t
o
r
’s
P
e
r
m
i
t
u
n
d
e
r
S
U
P
re
q
u
i
r
e
m
e
n
t
s
,
1
3
-32
2
,
1
3
-31
1
Ow
n
e
r
o
r
o
p
e
r
a
t
o
r
o
f
d
w
e
l
l
i
n
g
m
u
s
t
ob
t
a
i
n
a
n
“op
e
r
a
t
o
r
’s
p
e
r
m
i
t
”
as
a
co
n
d
i
t
i
o
n
t
o
q
u
a
l
i
f
y
f
o
r
a
c
o
n
d
i
t
i
o
n
a
l
u
s
e
pe
r
m
i
t
,
C
M
M
C
1
3
-32
3
,
9
-37
2
,
o
r
m
e
e
t
sa
m
e
c
o
n
d
i
t
i
o
n
s
f
o
r
O
p
e
r
a
t
o
r
’s
P
e
r
m
i
t
t
o
qu
a
l
i
f
y
f
o
r
S
U
P
,
1
3
-32
2
,
1
3
-31
1
Ye
s
,
C
C
6
7
,
6
9
[C
U
P
]
;
Y
e
s
,
C
C
6
6
,
61
-63
[
S
U
P
]
Ye
s
,
C
C
6
7
,
6
9
[
C
U
P
]
;
Ye
s
,
C
C
6
6
,
6
1
-63
[S
U
P
]
No
No
No
Pe
r
m
i
t
A
p
p
l
i
c
a
t
i
o
n
R
e
q
u
i
r
e
m
e
n
t
s
Pe
r
m
i
t
A
p
p
l
i
c
a
t
i
o
n
:
R
e
q
u
i
r
e
d
t
o
l
i
s
t
ap
p
l
i
c
a
n
t
/
o
p
e
r
a
t
o
r
’
s
e
v
e
r
y
g
e
n
e
r
a
l
pa
r
t
n
e
r
a
n
d
e
v
e
r
y
o
w
n
e
r
w
i
t
h
c
o
n
t
r
o
l
l
i
n
g
in
t
e
r
e
s
t
i
n
c
o
r
p
o
r
a
t
i
o
n
.
C
M
M
C
1
3
-31
1
(
a
)
+
9
-37
4
(
a
)
v
e
r
s
u
s
C
M
M
C
1
3
-29
(
a
)
+
C
i
t
y
Fo
r
m
0
9
/
2
0
1
9
Ye
s
,
C
C
6
1
,
6
9
;
[C
U
P
]
;
Y
e
s
,
C
C
6
6
,
61
-63
[
S
U
P
]
Ye
s
,
C
C
6
1
,
6
9
;
[
C
U
P
]
;
Ye
s
,
C
C
6
6
,
6
1
-63
[S
U
P
]
No
,
C
C
2
2
No
,
C
C
2
2
No
,
C
C
2
2
Pe
r
m
i
t
A
p
p
l
i
c
a
t
i
o
n
:
R
e
q
u
i
r
e
d
t
o
p
r
o
v
i
d
e
pe
r
m
i
t
h
i
s
t
o
r
y
o
r
o
p
e
r
a
t
i
o
n
o
f
s
i
m
i
l
a
r
u
s
e
at
a
n
y
t
i
m
e
a
n
y
w
h
e
r
e
i
n
t
h
e
U
n
i
t
e
d
St
a
t
e
s
.
C
M
M
C
1
3
-31
1
(
a
)
+
9
-37
4
(
a
)
ve
r
s
u
s
C
M
M
C
1
3
-29
(
a
)
+
C
i
t
y
F
o
r
m
09
/
2
0
1
9
Ye
s
,
C
C
6
1
,
6
9
;
[C
U
P
]
;
Y
e
s
,
C
C
6
6
,
61
-63
[
S
U
P
]
Ye
s
,
C
C
6
1
,
6
9
;
[
C
U
P
]
;
Ye
s
,
C
C
6
6
,
6
1
-63
[S
U
P
]
No
,
C
C
2
2
No
,
C
C
2
2
No
,
C
C
2
2
Pe
r
m
i
t
A
p
p
l
i
c
a
t
i
o
n
:
R
e
q
u
i
r
e
d
t
o
p
r
o
v
i
d
e
co
p
y
o
f
r
u
l
e
s
g
o
v
e
r
n
i
n
g
c
o
n
d
u
c
t
o
f
re
s
i
d
e
n
t
s
o
c
c
u
p
y
i
n
g
d
w
e
l
l
i
n
g
.
C
M
M
C
1
3
-
31
1
(
a
)
+
9
-37
4
(
a
)
v
e
r
s
u
s
C
M
M
C
1
3
-29
(
a
)
+
C
i
t
y
F
o
r
m
0
9
/
2
0
1
9
Ye
s
,
C
C
6
1
,
6
9
;
[C
U
P
]
;
Y
e
s
,
C
C
6
6
,
61
-63
[
S
U
P
]
Ye
s
,
C
C
6
1
,
6
9
;
[
C
U
P
]
;
Ye
s
,
C
C
6
6
,
6
1
-63
[S
U
P
]
No
,
C
C
2
2
No
,
C
C
2
2
No
,
C
C
2
2
-17-
5
CM
M
C
R
e
g
u
l
a
t
i
o
n
s
G
o
v
e
r
n
i
n
g
Re
s
i
d
e
n
t
i
a
l
U
s
e
s
i
n
C
i
t
y
’
s
M
u
l
t
i
f
a
m
i
l
y
Di
s
t
r
i
c
t
s
So
b
e
r
L
i
v
i
n
g
H
o
m
e
2
Gr
o
u
p
H
o
m
e
3
Bo
a
r
d
i
n
g
h
o
u
s
e
,
Sm
a
l
l
<
3
r
e
n
t
a
l
ro
o
m
s
4
Bo
a
r
d
i
n
g
h
o
u
s
e
,
La
r
g
e
<
7
r
e
n
t
a
l
ro
o
m
s
Mu
l
t
i
-fa
m
i
l
y
Dw
e
l
l
i
n
g
5
Pe
r
m
i
t
A
p
p
l
i
c
a
t
i
o
n
:
R
e
q
u
i
r
e
d
t
o
i
d
e
n
t
i
f
y
th
e
n
a
m
e
,
a
d
d
r
e
s
s
,
t
e
l
e
p
h
o
n
e
,
C
D
L
o
f
on
s
i
t
e
d
w
e
l
l
i
n
g
m
a
n
a
g
e
r
.
C
M
M
C
1
3
-
31
1
(
a
)
+
9
-37
4
(
a
)
v
e
r
s
u
s
C
M
M
C
1
3
-29
(
a
)
+
C
i
t
y
F
o
r
m
0
9
/
2
0
1
9
Ye
s
,
C
C
6
1
,
6
9
;
[C
U
P
]
;
Y
e
s
,
C
C
6
6
,
61
-63
[
S
U
P
]
Ye
s
,
C
C
6
1
,
6
9
;
[
C
U
P
]
;
Ye
s
,
C
C
6
6
,
6
1
-63
[S
U
P
]
No
,
C
C
2
2
No
,
C
C
2
2
No
,
C
C
2
2
Pe
r
m
i
t
A
p
p
l
i
c
a
t
i
o
n
:
R
e
q
u
i
r
e
d
t
o
p
r
o
v
i
d
e
do
c
u
m
e
n
t
r
e
f
l
e
c
t
i
n
g
c
r
i
t
e
r
i
a
f
o
r
ac
c
e
p
t
a
n
c
e
o
f
r
e
s
i
d
e
n
t
i
n
d
w
e
l
l
i
n
g
.
CM
M
C
1
3
-31
1
(
a
)
+
9
-37
4
(
a
)
v
e
r
s
u
s
C
M
M
C
13
-29
(
a
)
+
C
i
t
y
F
o
r
m
0
9
/
2
0
1
9
Ye
s
,
C
C
6
1
,
6
9
;
[C
U
P
]
;
Y
e
s
,
C
C
6
6
,
61
-63
[
S
U
P
]
Ye
s
,
C
C
6
1
,
6
9
;
[
C
U
P
]
;
Ye
s
,
C
C
6
6
,
6
1
-63
[S
U
P
]
No
,
C
C
2
2
No
,
C
C
2
2
No
,
C
C
2
2
Pe
r
m
i
t
A
p
p
l
i
c
a
t
i
o
n
:
R
e
q
u
i
r
e
d
t
o
p
r
o
v
i
d
e
bl
a
n
k
c
o
p
i
e
s
o
f
a
l
l
f
o
r
m
s
t
h
a
t
r
e
s
i
d
e
n
t
s
o
f
dw
e
l
l
i
n
g
a
r
e
r
e
q
u
i
r
e
d
t
o
c
o
m
p
l
e
t
e
.
CM
M
C
1
3
-31
1
(
a
)
+
9
-37
4
(
a
)
v
e
r
s
u
s
C
M
M
C
13
-29
(
a
)
+
C
i
t
y
F
o
r
m
0
9
/
2
0
1
9
Ye
s
,
C
C
6
1
,
6
9
;
[C
U
P
]
;
Y
e
s
,
C
C
6
6
,
61
-63
[
S
U
P
]
Ye
s
,
C
C
6
1
,
6
9
;
[
C
U
P
]
;
Ye
s
,
C
C
6
6
,
6
1
-63
[S
U
P
]
No
,
C
C
2
2
No
,
C
C
2
2
No
,
C
C
2
2
Pe
r
m
i
t
N
o
t
i
c
e
R
e
q
u
i
r
e
m
e
n
t
s
,
Ju
l
y
20
1
7
(1
7
-
05
)
-
Oc
t
o
b
e
r
20
1
8
(
1
8
-06
)
t
i
m
e
pe
r
i
o
d
Pu
b
l
i
c
n
o
t
i
c
e
o
f
h
e
a
r
i
n
g
o
n
a
p
p
l
i
c
a
t
i
o
n
f
o
r
sp
e
c
i
a
l
u
s
e
p
e
r
m
i
t
,
C
M
M
C
1
3
-31
1
(
b
)
ve
r
s
u
s
C
M
M
C
1
3
-29
(
c
)
[
0
7
/
2
0
1
7
-
09
/
2
0
1
8
]
No
t
i
c
e
t
o
b
e
m
a
i
l
e
d
to
t
h
e
ow
n
e
r
o
f
re
c
o
r
d
a
n
d
oc
c
u
p
a
n
t
s
of
a
l
l
pr
o
p
e
r
t
i
e
s
w
i
t
h
i
n
fi
v
e
h
u
n
d
r
e
d
(5
0
0
)
fe
e
t
o
f
t
h
e
lo
c
a
t
i
o
n
o
f
t
h
e
gr
o
u
p
h
o
m
e
.
No
t
i
c
e
t
o
b
e
m
a
i
l
e
d
to
t
h
e
ow
n
e
r
o
f
re
c
o
r
d
a
n
d
oc
c
u
p
a
n
t
s
of
a
l
l
pr
o
p
e
r
t
i
e
s
w
i
t
h
i
n
fi
v
e
h
u
n
d
r
e
d
(5
0
0
)
fe
e
t
o
f
t
h
e
lo
c
a
t
i
o
n
o
f
t
h
e
g
r
o
u
p
ho
m
e
.
No
t
i
c
e
s
o
f
t
h
e
he
a
r
i
n
g
s
h
a
l
l
b
e
ma
i
l
e
d
t
o
a
l
l
pr
o
p
e
r
t
y
ow
n
e
r
s
wi
t
h
i
n
a
f
i
v
e
h
u
n
d
r
e
d
-
fo
o
t
ra
d
i
u
s
o
f
th
e
p
r
o
j
e
c
t
s
i
t
e
No
t
i
c
e
s
o
f
t
h
e
he
a
r
i
n
g
s
h
a
l
l
b
e
ma
i
l
e
d
t
o
a
l
l
pr
o
p
e
r
t
y
o
w
n
e
r
s
wi
t
h
i
n
a
f
i
v
e
hu
n
d
r
e
d
-fo
o
t
ra
d
i
u
s
o
f
t
h
e
pr
o
j
e
c
t
s
i
t
e
No
t
i
c
e
s
o
f
t
h
e
he
a
r
i
n
g
s
h
a
l
l
be
m
a
i
l
e
d
t
o
al
l
pr
o
p
e
r
t
y
ow
n
e
r
s
wi
t
h
i
n
a
f
i
v
e
hu
n
d
r
e
d
-fo
o
t
ra
d
i
u
s
o
f
t
h
e
pr
o
j
e
c
t
s
i
t
e
Oc
c
u
p
a
n
c
y
l
i
m
i
t
o
n
n
u
m
b
e
r
o
f
re
s
i
d
e
n
t
s
p
e
r
d
w
e
l
l
i
n
g
-18-
6
CM
M
C
R
e
g
u
l
a
t
i
o
n
s
G
o
v
e
r
n
i
n
g
Re
s
i
d
e
n
t
i
a
l
U
s
e
s
i
n
C
i
t
y
’
s
M
u
l
t
i
f
a
m
i
l
y
Di
s
t
r
i
c
t
s
So
b
e
r
L
i
v
i
n
g
H
o
m
e
2
Gr
o
u
p
H
o
m
e
3
Bo
a
r
d
i
n
g
h
o
u
s
e
,
Sm
a
l
l
<
3
r
e
n
t
a
l
ro
o
m
s
4
Bo
a
r
d
i
n
g
h
o
u
s
e
,
La
r
g
e
<
7
r
e
n
t
a
l
ro
o
m
s
Mu
l
t
i
-fa
m
i
l
y
Dw
e
l
l
i
n
g
5
Oc
c
u
p
a
n
c
y
l
i
m
i
t
a
t
i
o
n
Ci
t
y
H
o
u
s
i
n
g
El
e
m
e
n
t
Ci
t
y
H
o
u
s
i
n
g
E
l
e
m
e
n
t
St
a
t
e
H
o
u
s
i
n
g
La
w
/
U
H
C
St
a
t
e
H
o
u
s
i
n
g
La
w
/
U
H
C
St
a
t
e
H
o
u
s
i
n
g
La
w
/
U
H
C
On
-Si
t
e
M
a
n
a
g
e
r
R
e
q
u
i
r
e
m
e
n
t
s
Dw
e
l
l
i
n
g
m
u
s
t
h
a
v
e
a
2
4
/
7
o
n
s
i
t
e
ma
n
a
g
e
r
.
C
M
M
C
1
3
-31
1
(
a
)
(
4
)
+
C
M
M
C
9
-
27
4
(
b
)
(
1
)
v
e
r
s
u
s
S
t
a
t
e
H
o
u
s
i
n
g
L
a
w
Ye
s
,
C
C
6
2
,
7
0
Ye
s
,
C
C
6
2
,
7
0
No
,
S
t
a
t
e
Ho
u
s
i
n
g
L
a
w
No
,
S
t
a
t
e
Ho
u
s
i
n
g
L
a
w
No
,
S
t
a
t
e
Ho
u
s
i
n
g
L
a
w
Ve
h
i
c
l
e
R
e
s
t
r
i
c
t
i
o
n
s
Ea
c
h
d
w
e
l
l
i
n
g
r
e
s
i
d
e
n
t
l
i
m
i
t
e
d
t
o
o
n
e
ve
h
i
c
l
e
t
h
a
t
m
u
s
t
b
e
u
s
e
d
a
s
r
e
s
i
d
e
n
t
’s
pr
i
m
a
r
y
f
o
r
m
o
f
t
r
a
n
s
p
o
r
t
a
t
i
o
n
,
1
3
-
31
1
(
a
)
(
5
)
+
C
M
M
C
9
-27
4
(
b
)
(
2
)
Ye
s
,
C
C
6
2
,
7
0
Ye
s
,
C
C
6
2
,
7
0
No
No
No
Re
s
i
d
e
n
t
P
a
r
k
i
n
g
R
e
s
t
r
i
c
t
i
o
n
s
Ea
c
h
d
w
e
l
l
i
n
g
r
e
s
i
d
e
n
t
m
u
s
t
p
a
r
k
h
e
r
ve
h
i
c
l
e
o
n
d
w
e
l
l
i
n
g
p
r
e
m
i
s
e
s
o
r
w
i
t
h
i
n
50
0
f
e
e
t
o
f
d
w
e
l
l
i
n
g
,
1
3
-31
1
(
a
)
(
5
)
+
CM
M
C
9
-27
4
(
b
)
(
2
)
v
e
r
s
u
s
C
M
M
C
T
i
t
l
e
1
0
,
Ch
X
(
S
t
o
p
p
i
n
g
,
S
t
a
n
d
i
n
g
a
n
d
P
a
r
k
i
n
g
)
Ye
s
,
C
C
6
2
,
7
0
Ye
s
,
C
C
6
2
,
7
0
No
No
No
Ev
i
c
t
i
o
n
r
e
q
u
i
r
e
m
e
n
t
s
La
n
d
l
o
r
d
/
o
p
e
r
a
t
o
r
m
u
s
t
n
o
t
i
f
y
r
e
s
i
d
e
n
t
’s
em
e
r
g
e
n
c
y
c
o
n
t
a
c
t
,
O
C
H
A
O
C
L
i
n
k
s
Re
f
e
r
r
a
l
L
i
n
e
,
a
n
d
C
o
s
t
a
M
e
s
a
’s
N
e
t
w
o
r
k
fo
r
H
o
m
e
l
e
s
s
S
o
l
u
t
i
o
n
s
b
e
f
o
r
e
a
n
e
v
i
c
t
i
n
g
re
s
i
d
e
n
t
,
C
M
M
C
1
3
-31
1
(
a
)
(
1
0
)
+
9
-
37
4
(
b
)
(
6
)
Ye
s
,
C
C
6
2
,
7
0
Ye
s
,
C
C
6
2
,
7
0
No
No
No
La
n
d
l
o
r
d
/
o
p
e
r
a
t
o
r
m
u
s
t
p
r
o
v
i
d
e
tr
a
n
s
p
o
r
t
a
t
i
o
n
t
o
a
l
t
e
r
n
a
t
i
v
e
h
o
u
s
i
n
g
t
o
an
y
r
e
s
i
d
e
n
t
e
v
i
c
t
e
d
f
r
o
m
d
w
e
l
l
i
n
g
,
CM
M
C
1
3
-31
1
(
a
)
(
1
1
)
+
9
-37
4
(
b
)
(
7
)
Ye
s
,
C
C
6
2
,
7
0
Ye
s
,
C
C
6
2
,
7
0
No
No
No
-19-
7
CM
M
C
R
e
g
u
l
a
t
i
o
n
s
G
o
v
e
r
n
i
n
g
Re
s
i
d
e
n
t
i
a
l
U
s
e
s
i
n
C
i
t
y
’
s
M
u
l
t
i
f
a
m
i
l
y
Di
s
t
r
i
c
t
s
So
b
e
r
L
i
v
i
n
g
H
o
m
e
2
Gr
o
u
p
H
o
m
e
3
Bo
a
r
d
i
n
g
h
o
u
s
e
,
Sm
a
l
l
<
3
r
e
n
t
a
l
ro
o
m
s
4
Bo
a
r
d
i
n
g
h
o
u
s
e
,
La
r
g
e
<
7
r
e
n
t
a
l
ro
o
m
s
Mu
l
t
i
-fa
m
i
l
y
Dw
e
l
l
i
n
g
5
La
n
d
l
o
r
d
/
o
p
e
r
a
t
o
r
m
u
s
t
m
a
i
n
t
a
i
n
e
v
i
c
t
i
o
n
re
c
o
r
d
s
f
o
r
o
n
e
y
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No
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No
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No
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37
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3
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1
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s
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6
3
,
7
1
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C
2
5
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2
5
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C
C
2
5
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9
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3
,
7
1
Ye
s
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3
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7
1
No
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5
No
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5
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5
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t
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3
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7
1
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No
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C
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2
5
No
,
C
C
2
5
No
,
C
C
2
5
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n
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r
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-23-
LEGAL ADVOCACY UNIT
1831 K Street
Sacramento, CA 95811
Tel: (916) 504-5800
Fax: (916) 504-5801
TTY: (800) 719-5798
Intake Line: (800) 776-5746
www.disabilityrightsca.org
January 12, 2026
VIA EMAIL
Kimberly Hall Barlow
Jones Mayer
3777 N. Harbor Blvd.
Fullerton, CA 92835
khb@jones-mayer.com
RE: Costa Mesa’s Proposed Revisions to RA Ordinance
Dear Ms. Barlow:
Thank you for the opportunity to review and comment on Costa Mesa’s
proposed revisions to the City’s reasonable accommodation ordinance
pursuant to the settlement agreement in the Insight v. Costa Mesa case.
In your December 19, 2025 email to us, you said that Costa Mesa was
proposing to delete subsection (7) of Section 13-200.62(f) of the City’s
reasonable accommodation ordinance. You explained that the deletion is
proposed because “it is operationally difficult for staff or the applicants to
make this determination given lack of information and the difficulties in
ensuring that any facilities adequately allow individual(s) with said
disability(ies) to live in a residential setting. Furthermore, this subsection is
unnecessary given the other provisions of the Reasonable Accommodation
Ordinance.” We support the deletion of subsection (7) from Section 13-
200.62, which requires a finding that “the existing supply of facilities of a
similar nature and operation in the community is sufficient to provide
individuals with a disability an equal opportunity to live in a residential
setting.”
-24-
January 12, 2026
Page 2 of 7
The deletion of subsection (7) is an important first step in bringing Costa
Mesa’s reasonable accommodation ordinance into compliance with state
and federal fair housing requirements. However, in order to bring the entire
reasonable accommodation regulation into compliance, Costa Mesa will
need to make additional changes. Given the structure of the current
ordinance, it will be difficult to do that by simply editing or rewording the
text. Instead, we propose that the City repeal sections of the ordinance in
their entirety and replace them with new ones.
To begin with, Section 13-200.62 (f) has problems that cannot be remedied
without restructuring. That section is a list of findings “all of which are
required for approval” of a reasonable accommodation request. But the list
combines factors that the person or entity requesting the accommodation
must establish in order to be entitled to an accommodation, i.e., the topics
of Findings (1) and (2), with factors that are the City’s burden to establish if
it is going to deny the accommodation, i.e., the topics of Findings (3), (5),
and (8). These two types of topics need to be separated to clearly delineate
who – the person or entity making the request, or the City – bears the
burden of proof.
As written, Findings (3), (5), and (8) require affirmative findings that there is
no undue financial or administrative burden, no direct threat, and no
fundamental alteration for the approval of a reasonable accommodation
request. In other words, they require that the City affirmatively find that
those factors are not present. This has the effect of putting the burden on
the person or entity making the request to establish the absence of an
undue burden or fundamental alteration. That is contrary to fair housing
law, which makes it the City’s burden to establish that there is an undue
burden, direct threat, or fundamental alteration before denying a
reasonable accommodation request. Fair housing law does not permit the
City to make the establishment of the absence of those factors a
requirement.
Undue burden, direct threat, and fundamental alteration can properly be in
the reasonable accommodation ordinance, but the regulation needs to be
structured in a way that makes clear that if the person or entity making the
request establishes the factors addressed in Findings (1) and (2), the City
must grant the accommodation unless it finds that granting the
-25-
January 12, 2026
Page 3 of 7
accommodation will impose an undue financial or administrative burden,
will result in a direct threat, or will result in a fundamental alteration (i.e., the
inverse of the current language regarding findings). It does not work to
combine them in the same list as the elements that the person or entity
making the request has the burden to establish. The two types of findings
must be bifurcated.
Moreover, the current structure of the reasonable accommodation
ordinance also makes it difficult for the ordinance to adequately reflect the
law governing the findings that the City must establish to deny an otherwise
valid reasonable accommodation request. For example, where the
ordinance authorizes the City to deny a reasonable accommodation
request based on a direct threat finding, it must also state that in such a
case the City must find that the threat cannot be mitigated by reasonable
accommodation. 28 C.F.R. §35.139. A finding that granting a reasonable
accommodation would be an undue burden or fundamental alteration must
also be made “after considering all resources available for use in the
funding and operation of the service, program, or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion.” 28. C.F.R. §35.150(a)(3). It will be difficult to add such
clarifications in a clear way unless the two types of findings under Section
13-200.62(f) are separated and the findings for which the City bears the
burden are written in the affirmative.
Section 13-200.62 (f) also includes factors that do not fall within either the
burden of the person or entity making the accommodation request or the
allowable reasons for the City to deny a request, but instead layer on
additional obligations that are not permitted under fair housing law. Finding
(4) requires a finding that the “requested accommodation is consistent with
surrounding uses in scale and intensity of use.” The City cannot apply
different occupancy, use, or development standards to shared housing for
people with disabilities as compared to other forms of housing, nor can it
require a household of people with disabilities to be limited to fewer people
than a single housekeeping unit would be allowed to have. To the extent
that a requested accommodation would result in housing that was vastly
different from permitted housing uses, City staff could evaluate whether
granting the request would constitute a fundamental alteration to a City
program or would result in an undue burden or direct threat. But simply
having the same number of people that a single housekeeping unit would
-26-
January 12, 2026
Page 4 of 7
be allowed to have, or failing to meet another occupancy or development
standard that was not also applied to single housekeeping units, could
never fall within one of those permitted reasons for denying an
accommodation request. Consistency with other uses should therefore not
be listed as a separate required finding.
Likewise, Finding (6) requires in some instances “a finding that the
requested accommodation is necessary to make facilities of a similar
nature or operation economically viable in light of the particularities of the
relevant market and market participants generally.” For the same reasons
that the City is removing Finding (7), which also focuses on “facilities of a
similar nature and operation” rather than on the specific housing that is at
issue for a particular reasonable accommodation request, the City s hould
remove Finding (6). It is just as true that it will be “operationally difficult for
staff or the applicants to make this determination given lack of information”
for Finding (6) as for Finding (7). Moreover, providing a feasibility study or
market study about other housing does not fall within the burden of
someone making a reasonable accommodation request. Making such a
study a condition of approving a disability-related accommodation is
therefore a discriminatory housing practice. This should likewise not be
listed as a required finding.
The deletion of Finding (7) should also be accompanied by a revision to the
language of Finding (2), which states that, “[t]he requested accommodation
is necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling.” To ensure that City staff interpret
Finding (2) consistent with fair housing laws, by focusing on the housing at
issue in the request rather than “facilities of a similar nature and operation”
elsewhere, Finding (2) should be revised to refer to an equal opportunity to
use and enjoy “their dwelling,” “the dwelling at issue in the accommodation
request,” or something similar.
In order to bring the reasonable accommodation ordinance into compliance
with federal and state fair housing law, the City will also need to revise
other portions of the ordinance. As reflected in the settlement agreement,
we would welcome the opportunity to work with the City during that portion
of its review of the reasonable accommodation ordinance and to provide
feedback on any draft revisions of those other sections.
-27-
January 12, 2026
Page 5 of 7
For those portions of the ordinance as well, it would be most effective for
the City to repeal and replace language rather than try to work within the
existing structure. For example, Section 13-200.62(b) loads burdensome
and irrelevant requirements onto people or entities making reasonable
accommodation requests. A lay homeowner who needs an accommodation
due to disability should be able to comply with application requirements
without having to hire an attorney or other expert to help them understand
what they need to do. The City should limit the application to information
that is necessary for the City to evaluate whether the person or entity
making the request has met their burden, such as the location of the
dwelling at issue, the existence of the disability, the nature of the
accommodation that is being requested, and the connection between the
disability and the requested accommodation. The provisions in Section 13-
200.62(b) that require people or entities making reasonable
accommodation requests to provide “[a]ny other information that the
director reasonably determines is necessary for evaluating the request for
reasonable accommodation” ((b)(3)) and “[a]ny other information that the
hearing officer reasonably concludes is necessary to determine whether
the findings required by subsection (e) of this section can be made” ((b)(7))
are particularly problematic because they are not limited to the information
necessary to establish that a person or entity is entitled to a reasonable
accommodation.
Section 13-200.62(d) provides that appeals of reasonable accommodation
requests will be handled through the same procedures as “any other
discretionary permit.” However, the appeals process pertaining to
reasonable accommodation requests needs to be navigable and
manageable by lay people with disabilities. This provision should be
repealed and replaced with new language that requires a prompt, clear
statement of the reasons for any denial, establishes a simple procedure for
requesting an appeal, provides a reasonable deadline for making requests
for an appeal, and eliminates the need for individuals or entities to pay for
the City’s review of their reasonable accommodation determination.
Most importantly, the section of the reasonable accommodation ordinance
addressing appeals must exempt them from the review procedures that
govern general zoning matters in order to respect the privacy of people’s
disabilities and disability-related needs during any review process.
Hearings regarding reasonable accommodations requests should not be
-28-
January 12, 2026
Page 6 of 7
made by legislative bodies, and no public notice should be made regarding
reasonable accommodation reviews. Public hearings create an opening for
members of the public to express animus against people with disabilities,
which imposes an improper barrier to people seeking such
accommodations. For example, at the hearings regarding Insight’s
reasonable accommodation request, a member of the public told the
Planning Commission that a person who is “mentally disabled does not
belong in a neighborhood next door to me or any of us in this room,” and
someone testified to the City Council that the “mentally ill cannot associate
with our children, neighbors.” As you know, hearing those types of
comments was traumatic for our client Ms. Doe, who spoke about her own
experiences with mental illness, and the ways that staying at Insight’s
housing had helped her, at a hearing on Insight’s reasonable
accommodation request. Not only is the City not obligated to provide the
public with a forum to intimidate and humiliate people like Ms. Doe, but the
City cannot put people like her through such an ordeal as a condition of
having their accommodation request reviewed. Nor can such animus play
any part in the City’s review of an accommodation request. For similar
reasons, the ordinance should also make clear that only the person or
entity making the request can appeal a decision regarding a reasonable
accommodation, in contrast to the current language which permits virtually
anyone – including neighbors with an animus against people with
disabilities – to appeal.
Finally, Sections 13-200.62(e) and (g), regarding “considerations,” overlap
with the required “findings” in Section 13-200.62(f) in a way that impedes
consistency with fair housing law. Like Section 13-200.62(f), these sections
fail to make clear which elements are the burden of the person making the
reasonable accommodation request to establish and which are the City’s
burden. Many of them are also improper considerations. For example, the
City cannot take into account “whether granting the request would be
consistent with the City's General Plan.” By definition, any reasonable
accommodation request pertaining to zoning will be inconsistent with the
zoning scheme. “Requiring public entities to make exceptions to their rules
and zoning policies is exactly what the FHAA does.” Anderson v. City of
Blue Ash, 798 F.3d 338, 363 (6th Cir. 2015); City of Edmonds v.
Washington State Bldg. Code Council, 18 F.3d 802, 806 (9th Cir. 1994)
(FHA imposes an affirmative duty to reasonably accommodate disabled
persons). The question is not whether a requested disability
-29-
January 12, 2026
Page 7 of 7
accommodation is inconsistent with the City’s General Plan, but whether
granting it would fundamentally alter the General Plan. To take another
example, the City cannot take into consideration whether “the
accommodation would result in a substantial increase in traffic or
insufficient parking” (§ 13-200.62(g)(2)) or “create an institutionalized
environment due to the number of and distance between facilities that are
similar in nature or operation” (§ 13-200.62(g)(4)) unless it is also doing so
with respect to single housekeeping units. Again, the City cannot impose
more stringent development or occupancy standards on housing occupied
by people with disabilities than on single housekeeping units, nor can it use
vague or undefined conditions as a basis for denial of a reasonable
accommodation request. These are examples, and not an exhaustive list,
of the issues with subsections (e) and (g) of Costa Mesa’s reasonable
accommodation ordinance. We would be happy to provide additional
comments or to discuss with you and with City staff in more detail our
further thoughts on bringing the ordinance into compliance with state and
federal fair housing requirements.
We appreciate your time and attention to our comments and look forward to
working with you and the City further on these important access issues for
Costa Mesa residents with disabilities. Please let us know if you would like
to discuss any of these issues further.
Sincerely,
Autumn M. Elliott
Law Office of Autumn Elliott
Jia Min Cheng
Managing Attorney
Disability Rights California
-30-
Exhibit 2
December 2022
GROUP HOME
TECHNICAL ADVISORY
CA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
i
TABLE OF C ONTENTS
1. Executive Summary 1
2. Terms Used 5
3. Background 6
4. Framework for Assessing if Local Land Use Policies and Practices Comply with
State Housing Laws’ Protections of Group Homes 8
A. Do the Policies and Practices Comply with Housing Element Law and AFFH
Requirements? 9
B. Do the Policies and Practices Unlawfully Discriminate Based on Disability or
Other Protected Characteristics? 12
i. Intentional Discrimination 14
ii. Discriminatory Effects 17
iii. Reasonable Accommodations 18
5. Supportive Housing and Transitional Housing Requirements 20
6. State Law Provides Broader Protections Than Federal Law 22
7. Common Issues In Local Ordinances That Regulate Group Homes 23
A. Definitions of Single Housekeeping Units or Single-Family Homes 24
B. Requirements that All Group Homes with More than Six Residents Must
Obtain Permits to Locate in Single-Family Zones 25
C. Retroactive Compliance 27
D. Spacing Requirements 27
E. Occupancy Limits and Building, Fire, or Other Health and Safety Code
Requirements 30
F. Requirements For Operators and Residents 30
G. Civil Actions for Operating Without a Required State License 33
H. Enforcing Generally Applicable Municipal Codes and Other Laws 36
8. Resource Materials and State Contacts 36
1
1. EXECUTIVE SUMMARY
Group homes are an especially important type of housing for persons with disabilities.
By supporting their residents’ individualized needs while providing flexible and
affordable housing options, group homes help persons with disabilities live in
deinstitutionalized settings that facilitate their integration into local communities.
In recent years, some local governments have amended their zoning ordinances to add
new regulations for group homes, particularly for recovery residences—group homes
that provide housing for persons recovering from alcoholism or drug addiction. These
amendments have raised concerns that local governments are not complying with their
affirmative obligations under state planning and zoning laws to promote more inclusive
communities and affirmatively further fair housing (AFFH). These amendments have
also generated disputes and confusion over whether local governments are violating fair
housing laws by discriminating against persons with disabilities or other protected
characteristics.
Among other concerns, local land use policies and practices can block new group
homes from opening, force existing ones to close, and impose costs, legal fees, and
administrative burdens that make it difficult for group homes to operate. These concerns
arise in the context of a shortage of adequate housing for persons with disabilities,
which is a particularly acute problem within California’s broader housing crisis.
With concerns, disputes, and confusion continuing to grow, this Group Home Technical
Advisory (Group Home TA) provides guidance on how state planning and zoning and
fair housing laws apply when local governments attempt to regulate group homes
through land use policies and practices. It is designed to help local governments comply
with their obligations under these state laws, including, for example, the Planning and
Zoning Law,1 Housing Element Law,2 AFFH provisions,3 Anti-Discrimination in Land
Use Law,4 and the Fair Employment and Housing Act (FEHA)5 (collectively, state
housing laws).
The California Department of Housing and Community Development (HCD) is issuing
the Group Home TA under its authority to provide guidance about housing law and
1 Gov. Code, § 65000 et seq.
2 Gov. Code, §§ 65580‐65589.11.
3 See, e.g., Gov. Code, §§ 8899.50, 65583, subds. (c)(5),(10).
4 Gov. Code, § 65008.
5 Gov. Code, § 12900 et seq.
2
policy.6 The primary intended users are local planning agencies and their staff, but
group home operators, advocates, and residents may also benefit from this information.
Contents
• Background information about group homes and the essential role they play
in providing housing for persons with disabilities (pp. 6-8);
• General guidance about overall state housing law standards that (1) require
local governments to remove constraints on group homes and affirmatively
support them, and (2) prohibit local land use policies and practices that
discriminate against group home owners, operators, and residents (pp. 8-23);
• Specific guidance about how these standards apply to common issues that
arise when local governments attempt to regulate group homes through local
land use policies and practices (pp. 23-36);
• Lists of state government resource materials and contacts (pp. 36-37).
Policy Guidance Summary
The Group Home TA’s guidance for how local governments can comply with state
housing laws regarding group homes includes the following:
• Housing Element Law and AFFH. Assess whether a policy or practice complies
with Housing Element Law and AFFH requirements to avoid constraining housing
for persons with disabilities and to affirmatively support this housing and its
residents’ fair housing choices (pp. 8-12). Consider the Group Home TA’s
examples of specific questions to guide local governments’ analysis of these
issues (pp.11-12).
• Discriminatory Purpose or Effect. Ensure that the policy or practice does not
discriminate on the basis of disability or other characteristics protected by state
law. Apply the Group Home TA’s analysis on how to determine if a policy or
practice has a discriminatory purpose or effect and how to implement flexible
reasonable accommodation procedures that promptly and efficiently resolve
accommodation requests in compliance with state housing laws and regulations.
(pp. 12-20).
6 See, e.g., Health & Saf. Code, §§ 50152, 50406, subds. (e), (n), 50456, subd. (a),
50459, subd. (a); Gov. Code, § 65585, subd. (a). The Group Home TA is intended to
provide general informational guidance only. It does not constitute legal advice.
3
• Supportive and Transitional Housing. Comply with the specific protections for
group homes that fall within the definitions of supportive or transitional housing
(pp. 20-22).
• State and Federal Law Distinctions. Confirm that a policy or practice complies
with state housing laws even if it complies with federal law, because California
law provides broader and different protections than federal law (pp. 22-23).
• Definition of Single-Family Residence. Avoid restrictive definitions of single
housekeeping units or single-family homes that impermissibly constrain group
homes from locating in single-family zones. This includes, for example, avoiding
definitions that equate group homes with boardinghouses, require all residents to
share a common deed or lease, overly scrutinize residents’ living arrangements,
or automatically exclude group homes that are owned by for-profit businesses or
pay staff to help manage a home’s operations (pp. 24-25).
• Group Homes that Do Not Provide Licensable Services. Allow group homes
that operate as single-family residences and that do not provide licensable
services to locate in single-family neighborhoods, subject only to the generally
applicable, nondiscriminatory health, safety, and zoning laws that apply to all
single-family residences (pp. 25-26).
• Group Homes that Provide Licensable Services to Six or Fewer Residents.
Allow group homes that operate as single-family residences and that provide
licensable services to six or fewer residents to locate in single-family
neighborhoods, subject only to the generally applicable, nondiscriminatory
health, safety, and zoning laws that apply to all single-family residences (pp. 25-
26).
• Group Homes that Provide Licensable Services to Seven or More
Residents. Ensure that any permitting or approval requirements for group homes
that provide licensable services to seven or more residents are consistent with
state housing laws (pp. 25-26).
• Preexisting Nonconforming Uses. Avoid retroactively applying a new zoning
provision to group homes that were already operating before the provision was
enacted (p. 27).
• Spacing Requirements. Avoid requirements for minimum spacing between
group homes that go beyond those the Legislature has specified for limited types
of licensed facilities and that conflict with state housing laws (pp. 27-29).
4
• Occupancy Limits and Building, Fire, or Other Health and Safety Code
Requirements. Apply the same, generally applicable, nondiscriminatory
occupancy limits and other building, fire, health, and safety requirements to
group homes that apply to other housing, subject to reasonable accommodation
requirements or the Legislature’s requirements for specific types of licensed
facilities, such as those serving persons with limited mobility (p. 29).
• Other Requirements for Group Home Operators and Residents. Avoid the
other examples of special requirements for operators and residents discussed
that can overly constrain group homes, conflict with the duty to affirmatively
support this housing, and discriminate on the basis of disability and other
protected characteristics. Examples discussed include, among other things,
parking requirements, restrictions on residents or staff, neighborhood notice
requirements, and local law enforcement registration requirements (pp. 30-33).
• State Administrative Procedures for Investigating Licensing Issues. Use the
Department of Health Care Services (DHCS) or California Department of Social
Services (CDSS) processes for investigating and resolving complaints that
unlicensed group homes are providing services that require licenses from these
departments (pp. 33-35).
• Public Nuisance and Other Code Enforcement Actions. Use generally
applicable, nondiscriminatory laws and code enforcement procedures to
investigate and, if appropriate, prosecute group home operators that are creating
public nuisances; violating building, housing, fire, or other public health and
safety codes; committing fraud; or engaging in other unlawful activities (p. 36).
This summary and the Group Home TA are not intended as all-inclusive guides to every
issue that might arise when local governments attempt to regulate group homes. But by
following the Group Home TA’s framework and considering how it applies to the
examples of common issues, local governments can ensure that their land use policies
and practices comply with state housing laws.
Conclusion
Local governments that follow the Group Home TA’s guidance can still address
concerns about group homeowners or operators that mistreat or abuse their residents,
engage in insurance fraud or other illegal practices, or operate their homes in unsafe
manners or in ways that create public nuisances. But research has shown that these
problems are limited to a small minority of group homes, with the majority of group
homes being well managed and operating compatibly with their surrounding
neighborhoods, while providing essential housing resources. Focusing on individual
5
group homes that are problematic is more consistent with state law and helps avoid
adopting overly broad and constraining zoning regulations for all group homes.
2. TERMS USED
Different laws use the term “group homes” to refer to different types of housing for
different populations covered by different regulatory schemes. The following terms refer
to various types of residences in which unrelated persons share the residence:
• Shared Living Residences—any housing shared by unrelated persons,
including, for example, group homes, recovery residences, some community care
residential facilities, some supportive and transitional housing, emergency
shelters, boardinghouses, dormitories, etc.
• Group Homes—housing shared by unrelated persons with disabilities that
provide peer and other support for their residents’ disability related needs and in
which residents share cooking, dining, and living areas, and may, in some group
homes, participate in cooking, housekeeping, and other communal living
activities.
• Licensed Group Homes—group homes that provide services that require
licenses under state law.
• Unlicensed Group Homes—group homes that may provide some supportive
services for their residents but not services that require licenses under state law.
• Recovery Residences or Sober Living Homes—group homes for persons
recovering from alcoholism or drug addiction in which the residents mutually
support each other's recovery and sobriety and that do not require licenses from
DHCS because they do not provide alcoholism or drug addiction recovery and
treatment services.
• Alcohol or Other Drug (AOD) Facilities—residential facilities that must obtain
licenses from DHCS because they provide alcoholism or drug addiction recovery
and treatment services.7
7 See, e.g., Health & Saf. Code, § 11834.02.
6
• Community Care Residential Facilities—residential facilities that must obtain
licenses from CDSS because they provide 24-hour nonmedical care and
supervision for adults or children.8
3. BACKGROUND
Among the many reasons that group homes are essential housing for persons with
disabilities is the support these homes provide for their residents’ individualized,
disability-related needs. This includes the peer support that group homes encourage
their residents to provide to each other when sharing a home, as well as the services
these homes can provide. These services range from basic support for independent
living to more intensive care and supervision services that require state licenses. By
providing peer support, services, or both, group homes help their residents live in
deinstitutionalized settings and integrate into local communities. For these and other
reasons, as the California Legislature has recognized, “‘persons with disabilities . . . are
significantly more likely than other persons to live with unrelated persons in group
[homes].’”9
Because group homes are such important housing resources for persons with
disabilities, state law not only protects them from discriminatory land use policies and
practices, it mandates that local governments affirmatively support group homes
locating in their communities.10 Federal law also protects group homes, leading courts
across the country to conclude that “‘encourag[ing] and support[ing] handicapped
persons' right to live in a group home in the community of their choice’” is “‘the public
policy of the United States.’”11
The communities of choice for many group homes are often single-family
neighborhoods. Recovery residences, for example, often locate in single-family
8 See, e.g., Health & Saf. Code, §§ 1502, 1568.01, 1569.2, subds. (o)-(p).
9 Broadmoor San Clemente Homeowners Ass’n v. Nelson, (1994) 25 Cal.App.4th 1, 6,
quoting Stats. 1993, ch. 1277, § 18; 12 West Cal.Legis.Services, p. 6038.
10 See, e.g., Gov. Code, §§ 8899.50, 65583, subds. (a)(1), (a)(7), (c)(10).
11 Broadmoor, 25 Cal.App.4th at 9, quoting Rhodes v. Palmetto Pathway Homes, Inc.
(South Carolina 1991) 303 S.C. 308, 400 S.E.2d 484, 486.
7
neighborhoods because this helps “‘recovering addicts’ reintegration into society and
redevelopment of self-sufficiency.”12
But “for every group home that is successfully established, experts estimate that
another closes or never opens because of community opposition.”13 The legislative
history of the Fair Employment and Housing Act (FEHA), Government Code section
12900 et seq., and federal Fair Housing Act (“FHA”), 42 U.S.C. section 3601 et seq.,
show that the Legislature and Congress considered local governments’ longstanding
practices of using land use ordinances to exclude group homes when amending these
civil rights laws to protect housing for persons with disabilities.14
Local opposition to group homes is often based on fears that they will disrupt
neighborhoods, increase crime rates or drug use, generate excessive traffic and
parking, or lower property values. But numerous studies, representing decades of
research, have found that fears like these are unfounded.15 In fact, studies have shown
that group homes are often the best maintained properties on their blocks and function
so much like other homes “that most neighbors within one to two blocks . . . do not even
know that a group home . . . is nearby.”16
This is not to minimize very real problems that have arisen at some group homes. In
particular, some local governments have raised concerns based on problems at some
recovery residences operated by unscrupulous owners seeking to maximize their profits
12 Laurie C. Malkin, Troubles at the Doorstep: The Fair Housing Amendments Act of
1988 and Group Homes for Recovering Substance Abusers (1995) 144 U. Pa. L. Rev.
757, 772-73 & nn. 55-60; Oxford House, Inc. v. Township of Cherry Hill (“Cherry Hill”)
(D. New Jersey 1992) 799 F.Supp. 450, 453.
13 Malkin, supra, n. 12 at 795 & n. 171.
14 See, e.g., Broadmoor, supra, 25 Cal. App. 4th at 6, quoting Stats.1993, ch. 1277, §
18; 12 West Cal.Legis.Services, p. 6038; H.R. Rep. 100-711, 23-24, reprinted in 1988
U.S.C.C.A.N. 2173, 2184-2185.
15 See, e.g., Malkin, supra, n. 12 at 797-798 & nn. 181-184; Council of Planning
Librarians, There Goes the Neighborhood - A Summary of Studies Addressing the Most
Often Expressed Fears about the Effects Of Group Homes on Neighborhoods in which
They Are Placed (Bibliography No. 259) (Apr. 1990); Senate Comm. on Health Analysis
of SB 786, Feb. 17, 2017 at 3, 5.
16 Daniel Lauber, A Real LULU: Zoning for Group Homes and Halfway Houses Under
The Fair Housing Amendments Act of 1988 (Winter 1996) 29 J. Marshall L. Rev. 369,
384-385 & n. 50-52.
8
at the expense of their residents’ wellbeing. These problems have included neglecting
and abusing residents, engaging in insurance fraud, and creating public nuisances.17
While these are very real concerns, the examples of exploitive, abusive, and illegal
practices appear to be limited to a small minority of recovery residences.18 Moreover, in
contrast to laws specially designed to address fraud, violations of state licensing laws,
or health and safety violations and public nuisances, local land use policies are often
too blunt and too broadly sweeping for properly addressing these problems. They risk
continuing the history of discrimination against group homes by doing more to constrain
and exclude well-functioning ones than they do to abate problems at dysfunctional
ones.
Before local governments amend their zoning ordinances to regulate group homes, they
should first determine if the proposed amendments will comply with state housing laws.
They should apply the Group Home TA’s framework and consider its examples of
common issues that arise when local governments attempt to use land use laws to
regulate group homes.
4. FRAMEWORK FOR ASSESSING IF LOCAL L AND USE P OLICIES AND
PRACTICES COMPLY WITH S TATE HOUSING LAWS’ PROTECTIONS
OF GROUP HOMES
Confirming that local land use policies and practices for group homes comply with state
housing laws involves assessing whether they comply with requirements for local
governments to affirmatively support this housing in their communities and whether they
discriminate on the basis of disability or other protected characteristics. Both
assessments are necessary to confirm that a local land use policy or practice complies
with state housing laws. Although the Group Home TA discusses Housing Element Law
17 See, e.g., Samantha Schmidt, Drug Rehab ‘Mogul’ Convicted of Sexually Assaulting
7 Female Patients at Treatment Centers, Washington Post, Feb. 27, 2018,
https://www.washingtonpost.com/news/morning-mix/wp/2018/02/27/drug-rehab-mogul-
convicted-of-sexually-assaulting-7-female-patients-at-treatment-centers/; Danielle L.
Liberman, Current Development, Not Too Sunny in the Sunshine State: The Need to
Improve Florida’s Opioid Abuse Treatment Centers to Combat the National Public
Health Crisis, 31 Geo. J. Legal Ethics 723, 735-738 (2018).
18 See, e.g., Government Accounting Office, Report to Congressional Requesters:
Substance Use Disorder – Information on Recovery Housing Prevalence, Selected
States’ Oversight, and Funding (“GAO Report”) (March 2018) at 7-9 & n.18, available at
https://www.gao.gov/assets/gao-18-315.pdf; see also studies cited supra, nn. 15-16.
9
and AFFH requirements before fair housing laws, local governments can assess their
compliance with these laws in any order.
A. DO THE POLICIES AND PRACTICES COMPLY WITH HOUSING ELEMENT
LAW AND AFFH REQUIREMENTS?
California law has long promoted more inclusive communities, such as by requiring local
governments to protect and promote housing for persons with special needs, including,
among others, lower income households and persons with disabilities or who have
experienced homelessness.19 Housing Element Law requires local governments to
analyze the special housing needs of these populations and develop policies and
programs to address those needs.20
As of January 1, 2019, AB 686 built upon these existing obligations to broadly require all
state or local governments involved in programs or activities related to housing or
community development to affirmatively further fair housing and take no actions
inconsistent with this requirement.21 The Legislature defined AFFH, to mean:
taking meaningful actions, in addition to combating discrimination, that
overcome patterns of segregation and foster inclusive communities free
from barriers that restrict access to opportunity based on protected
characteristics. Specifically, affirmatively furthering fair housing means
taking meaningful actions that, taken together, address significant
disparities in housing needs and in access to opportunity, replacing
segregated living patterns with truly integrated and balanced living
patterns, transforming racially and ethnically concentrated areas of
poverty into areas of opportunity, and fostering and maintaining
compliance with civil rights and fair housing laws.22
In AB 686, the Legislature also amended Housing Element Law to include new, specific
AFFH requirements starting in 2021 for local governments when they prepare and
implement housing elements. These requirements include, for example, identifying and
addressing fair housing issues; analyzing integration and segregation patterns;
19 See, e.g., Gov. Code, § 65583, subds. (a)(1), (a)(7); Housing Elements Building
Blocks, available at https://www.hcd.ca.gov/planning-and-community-
development/housing-elements/building-blocks.
20 See, e.g., Gov. Code, § 65583, subds. (a)(7), (c).
21 Gov. Code, § 8899.50, subd. (a)(2).
22 Id. at (a)(1).
10
analyzing patterns and trends of disparate housing needs and disproportionate access
to housing opportunities; and setting specific goals, adopting responsive policies, and
taking effective actions that will affirmatively further fair housing.23
Taken together, the earlier Housing Element Law provisions and the newer AFFH
requirements clarify local governments’ affirmative responsibilities regarding group
homes. As the historical record and California and federal legislative histories confirm,
local land use laws have too often treated group homes as problems to be avoided or
restricted. Local governments’ obligations under state law have been misunderstood as
being limited to avoiding discrimination and meeting a minimum threshold for fulfilling
the locality’s share of regional housing needs for persons with disabilities.
But local governments must go beyond these basic requirements by actively supporting
the inclusion of group homes in their communities and removing constraints on this
housing. This includes, for example, supporting the housing choices of individuals with
protected characteristics.24 Persons with disabilities have the right to live in accessible
housing in the most integrated setting appropriate to their needs, which includes having
access to disability-related support and services that individuals need to live in
deinstitutionalized settings.25 Local governments must also avoid policies that
unjustifiably displace group home occupants from their homes.26
HCD has previously issued guidance about local governments’ obligations under older
Housing Element Law provisions and the more recently enacted AFFH provisions.
These guidance documents are available through links listed under the Planning and
Community Development tab on HCD’s website.27 Local governments should read the
detailed guidance provided in these documents, which include:
• Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for
Housing Elements (April 2021 Update),28
• Housing Element Building Blocks,29
23 See, e.g., Gov. Code, § 65583, subd. (c)(10).
24 See, e.g., Gov. Code, § 65583, subd. (c)(10)(A)(iv); 24 C.F.R § 5.151 (2022).
25 See, e.g., Olmstead v. Zimring (1999) 527 U.S. 581, 602, 607; 24 C.F.R. § 5.151
(2022); 28 C.F.R. § 35.130(d), (e)(1) (2022).
26 Gov. Code. § 65583, subd. (c)(10)(A)(v).
27 Available at https://www.hcd.ca.gov/.
28 Available at http://www.hcd.ca.gov/community-
development/affh/docs/AFFH_Document_Final_4-27-2021.pdf.
29 Available at https://www.hcd.ca.gov/planning-and-community-development/housing-
elements/building-blocks.
11
• Housing Element Building Blocks – Persons with Disabilities,30 and
• Housing Element Building Blocks – Constraints for People with Disabilities.31
HCD’s earlier guidance documents discuss in more detail how local governments can
assess their compliance with Housing Element Law and AFFH requirements. The
following types of questions can help local jurisdictions assess if they are meeting their
affirmative obligations to protect and promote the housing rights of persons with
disabilities:32
• Has the jurisdiction analyzed the special housing needs of persons with
disabilities by including in this analysis, among other things:
o data about the number of persons and households in this group?
o quantifiable and qualitative descriptions of their housing needs and
descriptions of existing resources or programs for them?
o assessments of unmet needs?
• Has the jurisdiction analyzed and explained how it will meet those needs
by, among other things:
o identifying potential programs, policy options, and resources?
o discussing local resources and service providers?
o identifying housing types that can accommodate persons with disabilities?
o developing housing programs or strategies to address identified needs?
• Has the jurisdiction analyzed and removed constraints on housing for
persons with disabilities by, among other things:
o analyzing potential governmental constraints to the development,
improvement, and maintenance of housing for persons with disabilities?
o examining ordinances, policies, or practices that are unjustifiably having the
effect of constraining or excluding housing variety and availability for persons
with disabilities?
o providing reasonable accommodations for persons with disabilities through
programs that remove constraints?
o ensuring that its reasonable accommodation procedures comply with state
fair housing laws and regulations?
o in general, demonstrating local efforts to remove constraints?
30 Available at https://www.hcd.ca.gov/planning-and-community-development/housing-
elements/building-blocks/people-disabilities-including-developmental-disabilities.
31 Available at https://www.hcd.ca.gov/planning-and-community-development/housing-
elements/building-blocks/constraints-people-disabilities.
32 See, e.g., Gov. Code, §§ 8899.50, 65583, subds. (a)(4), (7), (c)(3), (5), (10).
12
• Has the jurisdiction met its AFFH obligations for persons with disabilities
by, among other things:
o actively supporting their integration into the local community?
o actively supporting their fair housing rights, including their right to choose
where to live and to access housing opportunities with services and support
for their disabilities?
o considering whether policies and practices are displacing persons with
disabilities from their homes?
o examining and redressing segregated living patterns?
o fostering the integration of persons with disabilities into the community?
o conducting outreach and education in the community to support the fair
housing rights of persons with disabilities?
o identifying and analyzing any policies or practices that have the purpose or
effect of discriminating against persons with disabilities, perpetuating their
segregation, or impeding their integration?
o examining any justifications for policies or practices with discriminatory effects
and identifying and implementing less discriminatory alternatives?
• Has the jurisdiction conducted individualized, evidence- and data-based
research and analysis, including for:
o any specific benefits that it believes a land use policy or practice regarding
group homes will provide to persons with disabilities?
o any specific health or safety issues that a jurisdiction believes justify land use
polices or practices regarding group homes?33
B. DO THE POLICIES AND PRACTICES UNLAWFULLY DISCRIMINATE BASED
ON DISABILITY OR OTHER PROTECTED CHARACTERISTICS?
In addition to the laws requiring local governments to affirmatively support group homes,
state fair housing laws prohibit jurisdictions from discriminating against them.34 For
example, the Anti-Discrimination in Land Use Law, Government Code section 65008,
33 See, e.g., Cal. Code Regs., tit. 2, §§ 12042, subd. (f), 12179, subd. (b)(3).
34 Fair housing laws protect group homes. See, e.g., Cal. Code Regs., tit. 2, § 12005,
subd. (o); Lakeside Resort Enterprises, LP v. Board of Sup's of Palmyra Twp. (3d Cir.
2006) 455 F.3d 154, 159–60. See also infra at pp. 22-23 (explaining that while federal
fair housing cases can provide important guidance for interpreting state fair housing
laws, California’s fair housing and disability rights laws provide broader protections than
federal laws).
13
prohibits discriminatory local land use policies and practices and declares any such
discriminatory policies or practices null and void.35 This includes discrimination based
on any characteristic protected by the FEHA and other state civil rights laws.36
Disability rights protections extend to persons with disabilities, persons regarded or
treated as having, or having had, a disability, or persons with a record or history of a
disability.37 Complying with fair housing requirements for individuals with certain types
of disabilities, such as individuals with developmental disabilities, will not excuse
unlawful discrimination against other individuals with other types of disabilities, such as
individuals recovering from alcoholism or drug addiction.38
The Anti-Discrimination in Land Use Law also includes protections not specified in the
FEHA, such as prohibitions against land use policies and practices that discriminate
against housing for “persons or families of very low, low, moderate, or middle income.”39
Therefore, depending on a group home’s intended occupants, jurisdictions must
consider whether their policies discriminate against not only persons with disabilities,
but, for example, very low- or low income households if the residence is designed for
persons with disabilities who have experienced homelessness.
State fair housing laws protect not only group homes’ occupants, but other persons
associated with them or other persons who may be harmed by discriminatory land use
policies and practices, such as group homes’ operators, owners, and landlords.40
35 Gov. Code, § 65008, subds. (a), (b)(1). The FEHA similarly prohibits discriminatory
land use policies and practices. Gov. Code, § 12955, subd. (l); Cal. Code Regs., tit. 2,
§§ 12161, 12162. See also Government Code section 11135 (prohibiting discrimination
by recipients of state funding or financial assistance).
36 See, e.g., Gov. Code, §§ 65008, subds. (a)(1)(A), (b)(1)(B)(i), 65583, subd. (c)(5).
37 Gov. Code, § 12926, subds. (j), (m); 42 U.S.C. § 3602(h); Joint Statement of the
Department of Housing and Urban Development and the Department of Justice – State
and Local Land Use Laws and Practices and the Application of the Fair Housing Act
(Nov. 10, 2016) at 6 (“HUD – DOJ 2016 Jt. Stmt. on Local Land Use Laws”), available
at https://www.justice.gov/opa/file/912366/download.
38 Recovering from alcoholism or drug addiction is a disability protected by fair housing
laws. See, e.g., City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802,
803 (9th Cir.1994), aff'd City of Edmonds v. Oxford House (1995) 514 U.S. 725; Cherry
Hill, supra, 799 F.Supp. at 459; HUD – DOJ 2016 Jt. Stmt. on Local Land Use Laws at
6.
39 Gov. Code, § 65008, subds. (a)(3), (b)(1)(C).
40 Gov Code § 65008, subds. (a)(1)(A), (b)(1)(B)(ii), incorporating Gov. Code, § 12955,
subd. (m).
14
Identifying and correcting discriminatory land use policies and practices requires
understanding three general types of discrimination:
1. intentional discrimination,
2. discriminatory effects, and
3. failure to provide reasonable accommodations.41
i. INTENTIONAL DISCRIMINATION
Intentional discrimination includes “an act or failure to act” in which any protected
characteristic “is a motivating factor . . . even though other factors may have also
motivated the practice.”42 Unlike employment discrimination law, in which plaintiffs must
prove that a defendant’s action or inaction was substantially motivated by a
discriminatory purpose, under fair housing law, a “housing practice” can be found illegal
if it “demonstrates an intent to discriminate in any manner.”43
Intentional discrimination is best understood as purposeful discrimination because it
“does not require proof of personal prejudice or animus.”44 Even if local officials are not
hostile towards persons with disabilities or act with benign intents to help them, a
discriminatory policy or practice can still be unlawful. It is also unlawful for government
officials to acquiesce to members of the public’s prejudicial views even if the officials
themselves do not share those views.45
Establishing intentional discrimination often involves evidence that persons with
protected characteristics were treated worse than others without those characteristics.
But this is only one way to prove discrimination.46 Intentional discrimination does not
require “the existence of a similarly situated entity who or which was treated
better . . . .”47 A local land use policy or practice that “inflicts collateral damage by
harming some, or even all, individuals from a favored group in order to successfully
41 Although these are some of the most common, general types of discrimination issues
that arise with local land use policies and practices, this is not an exhaustive list. See,
e.g., Cal. Code Regs., tit. 2, §§ 12161-62 (listing more detailed examples).
42 Gov. Code, § 12955.8; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 217-
218; Cal. Code Regs., tit. 2, § 12041, subd. (b).
43 Gov. Code, § 12955.8.
44 Cal. Code Regs., tit. 2, § 12041, subd. (b).
45 Cal. Code Regs., tit. 2, § 12161, subd. (c).
46 Pacific Shores Properties, LLC v. City of Newport Beach (9th Cir. 2013) 730 F.3d
1142, 1158-1159.
47 Id. at 1158.
15
harm members of a disfavored class does not cleanse the taint of discrimination.”48
Sometimes it “simply underscores the depth of the defendant’s” discriminatory intent.49
Intentional discrimination can be established through facial discrimination, direct
evidence, or circumstantial evidence.
FACIAL D ISCRIMINATION
Facially discriminatory laws or policies explicitly regulate housing or take an adverse
action based on a protected characteristic.50 Local governments can engage in facial
discrimination even when a law or policy does not expressly refer to, for example, group
homes or persons with disabilities. “Proxy discrimination is a form of facial
discrimination” in which a jurisdiction:
enacts a law or policy that treats individuals differently on the basis of
seemingly neutral criteria that are so closely associated with the
disfavored group that discrimination on the basis of such criteria is,
constructively, facial discrimination against the disfavored group. For
example, discriminating against individuals with gray hair is a proxy for
age discrimination because the fit between age and gray hair is sufficiently
close.51
To avoid liability for a law or policy that facially discriminates against persons with
disabilities, a local government must show that the policy:
(1) either (a) actually benefits persons with disabilities or (b) is justified by
individualized safety concerns raised by the persons the policy affects, and
(2) is “the least restrictive means of achieving” one or both of these goals.52
48 Id. at 1159.
49 Id. See also id. at 1158 – 1162 & n. 23.
50 Cal. Code Regs., tit. 2, § 12040, subd. (c).
51 Pacific Shores Properties, 730 F.3d at 1160 n. 23, internal quotations and citations
omitted.
52 Cal. Code Regs., tit. 2, §§ 12042, subd. (f), 12161, subd. (d); Larkin v. State of Mich.
Dept. of Social Services (6th Cir. 1996) 89 F.3d 285, 290.
16
These justifications for facial discrimination are “extremely narrow exception[s],” and
jurisdictions should be wary of relying on them.53 Jurisdictions must support them with
at least, if not more than, the specific and thorough analysis and evidence required by
Housing Element Law, including its AFFH provisions. Generalized concerns or ones
based on stereotypes will not suffice.54 Jurisdictions should also consider less
discriminatory alternatives.55 And in light of jurisdictions’ obligations to “protect existing
residents from displacement” and otherwise affirmatively further fair housing, laws or
policies that displace group home occupants from their current, chosen residences
warrant especially thorough scrutiny.56
D IRECT EVIDENCE
Direct evidence includes written or oral statements showing in themselves that a
protected characteristic was a motivating factor in a local jurisdiction’s decision. Direct
evidence can itself establish a violation. The affirmative defenses for facial
discrimination claims do not apply to direct evidence claims.57
C IRCUMSTANTIAL E VIDENCE
Even when policies or statements in themselves do not establish a discriminatory intent,
local land use policies and practices can still be found discriminatory based on
circumstantial evidence, which can include: (1) the policy’s or practice’s impact, (2) its
historical background, (3) the more recent, specific sequence of events leading up to it,
(4) departures from usual procedures, (5) departures from usual substantive standards,
and (6) the legislative or administrative history.58
53 Dothard v. Rawlinson (1977) 433 U.S. 321, 334; Bangerter v. Orem City Corp. (10th
Cir. 1995) 46 F.3d 1491, 1504; see also Koire v. Metro Car Wash (1985) 40 Cal.3d 24,
31 nn. 7, 8 (explaining that public policy exceptions to Unruh Act’s prohibitions of
discrimination are “rare” and “should be carefully and narrowly construed”).
54 Larkin, 89 F.3d at 291-292 (rigorously examining and rejecting an agency’s
justifications and evidence for spacing and community notice requirements for group
homes in holding that they violate the FHA).
55 Cal. Code Regs., tit. 2, § 12042, subd. (f).
56 See, e.g., Gov. Code, § 65583, subds. (c)(10)(A)(iv), (v).
57 See, e.g., Cal. Code Regs., tit. 2, § 12042, subds. (c)-(e).
58 HUD – DOJ 2016 Jt. Stmt. on Local Land Use Laws at 4, citing Village of Arlington
Heights v. Metro. Hous. Dev. Corp. (1977) 429 U.S. 252, 265-68.
17
These factors are not the only ones that may be considered.59 And “very little evidence”
is needed to “raise a genuine issue” of a discriminatory intent.60 Procedural or
substantive departures from AFFH or housing element requirements when regulating
group homes would be relevant evidence to consider in assessing if local officials acted
for discriminatory purposes.
ii. DISCRIMINATORY EFFECTS
Even if a local government has not acted with a discriminatory purpose, its land use
policies or practices can be found unlawful if they have an unjustified discriminatory
effect. A discriminatory effect is generally established through statistical evidence
showing that a policy or practice actually or predictably results in a disparate impact on
a group of persons with protected characteristics or that it perpetuates segregation.61
If a local land use practice is found to have a discriminatory effect, a jurisdiction can
avoid liability if it shows there is a legally sufficient justification for its policy or practice.62
A jurisdiction must establish each of the following:
(1) The practice is necessary to achieve one or more substantial,
legitimate, nondiscriminatory purposes;
(2) The practice effectively carries out the identified purpose;
(3) The identified purpose is sufficiently compelling to override the
discriminatory effect; and
(4) There is no feasible alternative practice that would equally or better
accomplish the identified purpose with a less discriminatory effect.63
Generalized or hypothetical analysis of these elements will not suffice. They must be
“supported by evidence.”64
To comply with Housing Element Law, including its AFFH provisions, a jurisdiction
should not wait for group home occupants or operators to bring discriminatory effects
claims but should research on its own whether its policies or practices have
discriminatory effects on these residences. If so, the jurisdiction should also complete
59 Pacific Shores Properties, 730 F.3d at 1159.
60 Id.; Gov. Code, § 12955.8; Cal. Code Regs., tit. 2, § 12041, subd. (b).
61 Cal. Code Regs., tit. 2, § 12060, subd. (b).
62 Cal. Code Regs., tit. 2, § 12062, subd. (b).
63 Id.
64 Cal. Code Regs., tit. 2, § 12062, subd. (c).
18
the evidence-based analysis needed to determine whether there are legally sufficient
justifications for these discriminatory policies or practices, including analyzing less
discriminatory alternatives.
iii. REASONABLE ACCOMMODATIONS
Discrimination can also arise from a jurisdiction failing “to make reasonable
accommodations in rules, policies, practices, or services when these accommodations
may be necessary to afford a disabled person equal opportunity to use and enjoy a
dwelling.”65 A request for a reasonable accommodation may only be denied if:
(1) The individual on whose behalf the accommodation was requested is
not an individual with a disability;
(2) There is no disability-related need for the requested accommodation
(in other words, there is no [connection] between the disability and the
requested accommodation);
(3) The requested accommodation would constitute a fundamental
alteration of the services or operations of the person who is asked to
provide the accommodation.
(4) The requested accommodation would impose an undue financial and
administrative burden on the person who is asked to provide the
accommodation; or
(5) The requested accommodation would constitute a direct threat to the
health or safety of others (i.e., a significant risk of bodily harm) or would
cause substantial physical damage to the property of others, and such
risks cannot be sufficiently mitigated or eliminated by another reasonable
accommodation . . . .66
Three common issues, among others, can arise when group home operators or
occupants request reasonable accommodations in local land use policies and practices:
1. While a jurisdiction should adopt a formal reasonable accommodations
process so that, among other reasons, the public knows how to request
accommodations, these processes should be flexible enough to promptly
and efficiently resolve accommodations requests without creating
65 Gov. Code, § 12927, subd. (c)(1).
66 Cal Code Regs., tit. 2, § 12179.
19
unnecessary procedural barriers.67 These processes should allow group home
operators to request reasonable accommodations “at any time . . . while seeking
or enjoying a housing opportunity,” including, for example, when: (1) considering
whether to buy or lease a home; (2) filing a permit application, or (3) responding
to allegations they have violated a zoning code or other ordinance.68 If local
governments are repeatedly denying accommodation requests or delaying
resolving them, they should analyze whether this is due to the requestors failing
to provide sufficient information and support or to procedures erecting
impermissible barriers to accommodations.69
2. “‘[I]n most cases, an individual’s medical records or detailed information
about the nature of a person’s disability is not necessary’” to establish that
a person has a disability or that this disability requires a reasonable
accommodation in a land use policy or practice.70 A reliable third party with
knowledge of a person’s disabilities can usually provide sufficient information for
assessing a request for an accommodation in a local land use policy or
practice.71 For example, it is well established that persons recovering from
alcoholism or drug addiction have disabilities and that recovery residences
support their recoveries. Thus, information provided by a recovery residence
operator, such as its occupancy or other policies, for example, should generally
suffice to establish its occupants have disabilities and the justifications for the
67 See, e.g., id. at §§ 12176, subd. (c), 12178.
68 See, e.g., id. at § 12176, subd. (f).
69 See, e.g., id. at § 12177; see also these examples of reasonable accommodation
ordinances: Oakland Mun. Code, ch. 17.131, available at
https://library.municode.com/ca/oakland/codes/planning_code?nodeId=TIT17PL_CH17
.131REACPOPR; Model Ordinance for Providing Reasonable Accommodation Under
Federal and State Fair Housing Laws (“Model Reasonable Accommodation
Ordinance”), Mental Health Advocacy Services, Inc. (September 2003), available at
https://www.hcd.ca.gov/community-development/building-blocks/program-
requirements/address-remove-mitigate-
constraints/docs/model_reasonable_accomodation_ordinance.pdf.
70 Supplement to Initial Statement of Reasons for FEHC’s Fair Housing Regulations at
26, quoting HUD DOJ May 17, 2004 Joint Statement on Reasonable Accommodations,
available at https://www.dfeh.ca.gov/wp-
content/uploads/sites/32/2019/07/FairHousingReg-
SupplementInitialStatementReasons.pdf.
71 Cal. Code Regs., tit. 2, § 12178.
20
requested accommodations, allowing local officials to assess the request without
probing into the occupants’ private medical records or histories.72
3. Denials of reasonable accommodation requests must be based on
individualized assessments, and specific evidence, not generalized or
speculative concerns about group homes or persons with disabilities. The
state’s fair housing regulations provide specific guidance about the type of
evidence required to meet this standard.73
5. SUPPORTIVE HOUSING AND TRANSITIONAL HOUSING
REQUIREMENTS
If a group home operates in ways that fall within the statutory definitions of supportive
housing or transitional housing, jurisdictions must also comply with Housing Element
Law’s specific protections of these types of housing. This section summarizes these
protections, which are explained more fully in other HCD guidance documents,
including:
• Housing Accountability Act Technical Assistance Advisory (Sep. 15, 2020),74
• Housing Element Building Blocks – Zoning for a Variety of Housing Types,75
• Senate Bill 2 – Legislation Effective January 1, 2008: Local Planning and
Approval for Emergency Shelters and Transitional and Supportive Housing (Apr.
10, 2013 update),76 and
• Transitional and Supportive Housing, Chapter 183, Statutes of 2013 (SB 745)
(Apr. 24, 2014).77
72 Id; Regional Economic Community Action Program, Inc. v. City of Middletown (2d Cir.
2002) 294 F.3d 35, 47-48 & n.3, superseded on other grounds as stated in Brooker v.
Altoona Housing Authority (W.D. Penn 2013) 2013 WL 2896814 at *9 n. 8.
73 Cal. Code Regs., tit 2, § 12179.
74 Available at https://www.hcd.ca.gov/community-development/housing-
element/housing-element-memos/docs/hcd-memo-on-haa-final-sept2020.pdf.
75 Available at https://www.hcd.ca.gov/planning-and-community-development/housing-
elements/building-blocks/zoning-variety-of-housing-types.
76 Available at https://www.hcd.ca.gov/community-development/housing-
element/housing-element-memos/docs/sb-2-combined-update-mc-a11y.pdf.
77 Available at https://www.hcd.ca.gov/community-development/housing-
element/housing-element-memos/docs/sb745memo042414.pdf.
21
Supportive Housing Definition. Government Code section 65582, subdivision (g),
defines supportive housing to mean housing that:
• has no limit on the length of stay;
• is linked to onsite or offsite services that assist residents in improving their health
status, retaining the housing, and maximizing their ability to live and, where
possible, work in the community; and
• is occupied by the “target population,” which “means persons with low incomes
who have one or more disabilities, including mental illness, HIV or AIDS,
substance abuse, or other chronic health condition, or individuals eligible for
services provided pursuant to the Lanterman Developmental Disabilities Services
Act . . . and may include, among other populations, adults, emancipated minors,
families with children, elderly persons, young adults aging out of the foster care
system, individuals exiting from institutional settings, veterans and homeless
people.”78
Transitional Housing Definition. Government Code section 65582, subdivision (j),
defines “transitional housing” to mean “buildings configured as rental housing
developments, but operated under program requirements that require the termination of
assistance and recirculating of the assisted unit to another eligible program recipient at
a predetermined future point in time that shall be no less than six months from the
beginning of the assistance.” Therefore, in contrast to supportive housing, transitional
housing may limit the length of stay, is not required to provide supportive services
(though may be linked to them), and is not limited to residents within the “target
population.”
Key Protections for Supportive and Transitional Housing. If a group home operates
in ways that qualify it as either supportive or transitional housing, jurisdictions must
comply with Housing Element Law’s additional protections for these types of housing.
This includes the requirement that supportive and transitional housing “shall be
considered a residential use of property and shall be subject only to those
restrictions that apply to other residential dwellings of the same type in the same
zone.”79 In other words, transitional housing and supportive housing are permitted in all
zones allowing residential uses and are not subject to any restrictions (e.g., occupancy
limit) not imposed on similar dwellings (e.g., single-family home, apartments) in the
78 Gov. Code, § 65582, subd. (i).
79 Gov. Code, § 65583, subd. (c)(3), emphasis added.
22
same zone in which the transitional housing and supportive housing is located. For
example, transitional housing located in an apartment building in a multifamily zone is
permitted in the same manner as an apartment building in the same zone, and
supportive housing located in a single-family home in a single-family zone is permitted
in the same manner as a single-family home in the same zone.
In addition, if supportive housing meets the specifications of Government Code
section 65650 et seq, it must be treated as “a use by right in all zones where
multifamily and mixed uses are permitted . . . .”80 By-right approval means that the
use cannot require a conditional use permit or other discretionary review, even if a
permit is required for other residential dwellings of the same type in the same zone.81
This nondiscretionary (i.e., ministerial) approval requirement renders the proposed use
statutorily exempt from the California Environmental Quality Act if the project “complies
with written, objective development standards and policies.”82
When supportive or transitional housing does require a permit of any type, the
Housing Accountability Act limits jurisdictions’ authority to deny the permit.
These limits are discussed at length in HCD’s Housing Accountability Act Technical
Assistance Advisory (Sep. 15, 2020).83
6. STATE LAW P ROVIDES BROADER PROTECTIONS THAN FEDERAL
LAW
The Legislature has specified that the FEHA may be interpreted broadly to provide
“greater rights and remedies” than federal laws.84 The Legislature has also emphasized
that “[t]he law of this state in the area of disability provides protections independent from
those in [federal law],” noting that California law “has always, even prior to passage of
the federal [ADA], afforded additional protections.”85
Examples of California providing “greater rights and remedies” than federal law include,
among other things, state law’s broader definitions of disabilities (e.g., only requiring a
mere limitation of a major life activity for a mental or physical condition to qualify as a
80 Id.
81 Id.
82 Gov. Code, § 65651, subd. (b)(2); Pub. Resources Code, § 21080, subd. (b)(1); Cal.
Code Regs., tit. 14, §§ 15002, subds. (i)(1), 15268(a).
83 See supra, n. 74.
84 Gov. Code, §§ 12955.6, 12993.
85 Gov. Code, § 12926.1, subd. (a).
23
disability compared to federal law requiring a substantial limitation); prohibition of land
use policies and practices that discriminate against housing designed for persons or
families of very low, low, moderate, or middle income; requirements for how local
governments must affirmatively support housing for persons with disabilities; specific
requirements for supportive and transitional housing; and reasonable accommodations
regulations.86
Therefore, federal laws set a floor, not a ceiling, for the fair housing rights that the state
may provide through the FEHA, Anti-Discrimination in Land Use Law, and other state
laws.87 Likewise, although federal court decisions about federal fair housing laws can
provide important guidance for interpreting state fair housing laws, their interpretations
of state laws are not binding authority.88 Confusion can arise if local governments
assume that resolving whether a local land use policy or practice complies with federal
law automatically resolves whether it complies with state law.
To avoid this confusion, local governments should follow these two general guidelines:
• If a policy or practice violates federal fair housing law, it also likely violates
state law.
• But the converse is not necessarily true. If a policy or practice complies with
federal fair housing laws, local governments should independently determine
whether it complies with state law’s broader protections.
7. COMMON I SSUES IN LOCAL ORDINANCES THAT REGULATE
GROUP HOMES
HCD cannot anticipate all the issues that might arise if local governments attempt to
regulate group homes through local land use laws. But the following are examples of
some common ones that can arise.
86 See, e.g., Gov. Code, §§ 12926.1; 65008, subds. (a), (b); 65583, subds. (a), (c); Cal.
Code Regs., §§ 12176-12185.
87 See, e.g., Gov. Code, § 12926.1, subd. (a); California Federal Sav. and Loan Ass’n v.
Guerra (1987) 479 U.S. 272, 285; 42 U.S.C. § 3615.
88 See, e.g., Cal. Code Regs, tit. 2, § 11001, subd. (b).
24
A. DEFINITIONS OF SINGLE HOUSEKEEPING UNITS OR SINGLE-FAMILY
HOMES
Zoning ordinances sometimes attempt to restrict or limit group homes in single-family
residential zones (e.g., R-1) through definitions of single housekeeping units or single-
family homes. Overly restrictive definitions risk violating not only state housing laws, but
the California Constitution’s protections of the rights of unrelated persons to live
together in communal housing.89
Persons with disabilities choose to live in group homes because these homes provide
peer and other support for their residents’ disability-related needs, while helping to
integrate residents into their communities. Group homes should be treated as single-
housekeeping units if they are designed to foster these mutually supportive peer
relationships; allow open-ended stays or at least, on average, stays of more than a few
weeks; and provide shared kitchen, dining, living, and other spaces in which residents
may, in certain homes, participate in basic, shared cooking and housekeeping activities.
In general, localities should avoid including provisions in definitions of shared-
housekeeping units, single-family homes, or other single residential dwellings that:
• Equate group homes with boardinghouses. Group homes’ shared communal
purposes to provide peer and other support for their occupants’ disability-related
needs and to help integrate them into their local communities makes this an inapt
comparison. Boardinghouses do not provide communal housing designed to
support the needs of persons with disabilities.
• Require all residents to share a common deed or lease. The California
Constitution’s protections of personal privacy extend to individuals’ choices to live
together even when they are not joint owners or tenants.90 And group homes can
still provide a communal setting that supports their residents’ needs without all
residents being joint owners or tenants.
• Automatically exclude group homes that are owned by for-profit
businesses or that pay a house manager or resident to help manage a
89 See, e.g., City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123.
90 See, e.g., Coalition Advocating Legal Housing Options v. City of Santa Monica (2001)
88 Cal.App.4th 451, 458-459.
25
home’s operations. These are well-established models for group homes.91 And
persons with certain types of disabilities may need supportive, in-house staff to
be able to live in a group home.
• Overly scrutinize living arrangements by, for example, requiring residents to
take care of all housekeeping tasks, share all bathrooms and refrigerators, and
eat all meals together, or by prohibiting locks on bedroom doors. Localities do not
impose such conditions on families of related persons, who may live in R-1
neighborhoods even if they can afford to hire housekeepers or gardeners, do not
share all bathrooms, decline or lack the time to eat all meals together, or choose
to install locks on parents’, teenagers’, or other relatives’ bedroom doors. And
different types of group homes may require different living arrangements and
provide different levels of housekeeping or other services based on their
residents’ individualized needs or other considerations.
B. REQUIREMENTS THAT ALL GROUP HOMES WITH MORE THAN SIX
RESIDENTS MUST OBTAIN PERMITS TO LOCATE IN SINGLE-FAMILY
ZONES
Some local zoning ordinances require all group homes with more than six residents to
apply for conditional use permits or obtain other special approvals to locate in single-
family zones. These ordinances appear to be based on Health and Safety Code
statutes that require local governments to treat many types of licensed group homes
with six or fewer residents the same as single-family homes and prohibit requiring these
small, licensed group homes to obtain conditional use permits or other special
approvals to locate in single-family zones.92
But local policies that require all group homes with more than six residents to obtain
conditional use or other permits inappropriately turn state laws designed to remove
constraints on small, licensed group homes into constraints on the many other group
homes that do not require state licenses.
91 Douglas L. Plocin and Diane Henderson, A Clean and Sober Place to Live:
Philosophy, Structure, and Purported Therapeutic Factors in Sober Living Homes, 40 J
Psychoactive Drugs (2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2556949/
(discussing how a “‘strong manager’ model of operations” can function in ways that
provide the same or similar benefits of a communal environment and peer support as
group homes that residents own and operate themselves).
92 See, e.g., Health & Saf. Code, §§ 1566.3, 1569.85,11834.23.
26
To comply with the Health and Safety Code’s exemptions for small, licensed group
homes and with housing element, AFFH, and fair housing requirements to remove
constraints on and prevent discrimination against group homes, local governments
should follow these guidelines:
• Group homes that operate as single-family residences and that do not
provide licensable services should be allowed in single-family
neighborhoods, subject only to the generally applicable, nondiscriminatory
health, safety, and zoning laws that apply to all single-family residences.
This is true even if these homes have more than six residents. Because these
homes are not providing licensable services, they should be treated the same as
other residences.93
• Group homes that operate as single-family residences and that provide
licensable services to six or fewer residents should be allowed in single-
family neighborhoods, subject only to the generally applicable,
nondiscriminatory health, safety, and zoning laws that apply to all single-
family residences. This complies with, among other things, the Health and
Safety Code protections for these smaller, licensed group homes.
• Group homes operating as single-family residences that provide licensable
services to more than six residents may be subject to conditional use or
other discretionary approval processes. Local governments must still provide
flexible and efficient reasonable accommodations in these permitting processes.
This means that some requests for exceptions to permitting processes should be
resolved through reasonable accommodation procedures instead of conditional
use procedures.94 In addition, any substantive requirements for these group
homes must still comply with the local government’s obligations to remove
constraints on housing for persons with disabilities, affirmatively support it, and
prevent discrimination against it. The next sections provide further guidance on
how to meet these obligations.95
93 See also supra at pp. 20-22 (discussing specific protections for supportive and
transitional housing).
94 See, e.g., Letter from Attorney General Bill Lockyer to The Hon. William Hartz, Mayor
of Adelanto (May 15, 2001) (explaining that relying on conditional use procedures to
address reasonable accommodation requests can lead to fair housing violations).
95 Although the Group Home TA focuses on group homes operating as single-family
residences, the same principles apply to those operating, for example, as multifamily
residences in multifamily zones.
27
C. RETROACTIVE COMPLIANCE
Zoning codes typically allow uses that began lawfully before a new zoning provision was
adopted or amended to continue after these new requirements are imposed, with the
concept of legal nonconforming existing uses found in almost all zoning codes. For
example, a local government may change zoning requirements to disallow auto repair
uses in the downtown area. An existing auto repair shop would continue to be allowed
to continue to operate because at the time when the use began it was an allowable
use.96
Local governments should generally treat existing group homes similarly when
amending their zoning codes. Retroactive application of new zoning provisions should
be avoided, especially if it will displace persons with disabilities from the homes they
have chosen. Any exception to the well-established practice of allowing legal non-
conforming uses to continue should be supported by substantial analysis and evidence
showing that it is required to protect public health, safety, and welfare. This analysis and
evidence should include specific local data and evidence, not merely anecdotal reports
about problems that have arisen at some group homes or generalized descriptions of
the public health, safety, and welfare interests that the new amendments are designed
to serve.
D. SPACING REQUIREMENTS
Spacing requirements restrict group homes from locating within a specific distance of
other group homes. Local governments should be very wary about imposing spacing
requirements that extend beyond the limited requirements the Legislature has deemed
necessary to prevent the overconcentration of certain licensed facilities to ensure their
residents are integrated into their communities.
The Legislature has found spacing requirements justified only for specific types of
licensed facilities. Community care facilities, intermediate care facilities serving persons
with developmental disabilities who require intermittent but recurring skilled nursing
care, and pediatric day health and respite care facilities that provide services to children
with particularly acute or chronic healthcare needs and their parents or guardians must
be separated by at least 300 feet. Congregate living health facilities serving persons
with terminal or life-threatening illnesses or with catastrophic or severe disabilities
96 See, e.g., Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12
Cal.4th 533, 552; Edmonds v. Los Angeles County (1953) 40 Cal.2d 642, 651.
28
acquired through trauma or nondegenerative neurologic illness must be separated by at
least 1,000 feet.97
Further limiting these spacing requirements, the Legislature has specified that they:
• apply to some types of licensed facilities, but not to others. For example, the
spacing requirements apply only to some types of intermediate care facilities but
not to AOD facilities or to residential care facilities for the elderly;
• apply to proposed, new facilities, not existing ones;
• only require separation of facilities with similar licenses; and
• allow closer spacing based on local needs and conditions.98
Contrary to these carefully crafted limitations on spacing requirements, some local
governments have imposed spacing requirements on recovery residences, including
those already in operation. These spacing requirements are very unlikely to withstand
scrutiny under state housing laws. Among other things:
• They are at odds with the Legislature’s narrowly crafted spacing
requirements in section 1267.9.
• They can conflict with local governments’ obligations to, for example,
remove constraints on housing for persons with disabilities, affirmatively
support such housing, avoid policies that displace persons with protected
characteristics, and affirmatively support their right to live where they
choose.99
• They are very hard to justify based on the narrow exceptions that state fair
housing laws allow for facial discrimination. Justifications based on the goal
of avoiding overconcentration are difficult to establish and require substantial and
detailed statistical evidence establishing that an overconcentration of recovery
residences has reached the point where it is, for example, creating an
institutionalized living environment or perpetuating segregation within specific
97 Health & Saf. Code, §§ 1267.9, subd. (b) (setting spacing requirements for these
types of community care residential facilities), 1502 (defining facilities that are subject to
300-foot spacing requirements), 1250 (defining facilities subject to 1000-foot spacing
requirements).
98 Health & Saf. Code, § 1267.9.
99 See, supra, at pp. 9-12.
29
neighborhoods or communities. Merely comparing the number of recovery
residences in one city with the number in others generally will not suffice.100
• They can lack the flexibility required to reasonably accommodate recovery
residences and their occupants’ disability-related needs.
• The Legislature has repeatedly rejected attempts to impose spacing
requirements on recovery residences. As recently as 2018, for instance, the
Legislature declined to adopt SB 786, a bill that would have imposed a 300-foot
spacing requirement on recovery residences.101 The legislative history shows
that the Legislature considered the lack of clear data showing that this spacing
requirement would benefit persons recovering from alcohol and drug addiction.
The Legislature also considered concerns that this spacing requirement would
discriminate on the basis of disability, impede opening new recovery residences,
reduce access to much needed recovery and treatment services, and stigmatize
recovery residences and their occupants.102
In sum, local governments should avoid imposing spacing requirements that extend
beyond those specified in Health and Safety Code section 1267.9.103
100 See, supra, at pp. 15-16. Spacing requirements like this also need to withstand
scrutiny under other standards for assessing intentional discrimination or discriminatory
effects. See, supra, at pp. 12-19.
101 Sen Bill No. 786 (2017-2018 Reg. Session). This bill is one of many times that the
Legislature has declined to enact, or the Governor has vetoed bills attempting to
regulate recovery residences. See, e.g., Sen. Com. on Health, analysis of Sen. Bill 786
(2017-2018 Reg. Sess.) at 7-8 (listing several other bills with similar provisions that the
died in the Legislature between 2006 and 2007); California Research Bureau, Sober
Living Homes in California: Options for State and Local Regulation (October 2016) at
14-16 (listing over 20 bills affecting recovery residences introduced between 1998 and
2016 that the Legislature did not pass or the Governor vetoed).
102 Sen. Com. on Health Analysis of Sen. Bill 786 at 6, 8-9.
103 Recent federal court decisions rejecting challenges under federal and California laws
to spacing requirements for recovery residences have not considered the important
differences between state and federal laws. See, e.g., Yellowstone Women’s First Step
House, Inc. v. City of Costa Mesa (C.D. Cal. Oct. 8. 2015) 2015 WL 13764131 at *7-8,
affirmed in part and vacated in part, 2021 WL 4077001 (9th Cir. Sep. 8, 2021)
(unpublished, nonprecedential decision). These differences include, for example, the
affirmative duties that California’s Housing Element Law imposes on local governments
and the broader rights and remedies for persons with disabilities under California’s fair
housing laws. See, supra, at pp. 22-23.
30
E. OCCUPANCY LIMITS AND BUILDING, FIRE, OR OTHER HEALTH AND
SAFETY CODE REQUIREMENTS
Subject to the Legislature’s requirements for specific types of licensed facilities, such as
those serving persons with limited mobility, and to requests for reasonable
accommodations, local governments should apply the same generally applicable
occupancy limits to group homes that they do to other housing. Under the Uniform
Housing Code section 503.2, at least one room in a dwelling unit must have a floor area
of at least 120 square feet, with other habitable rooms, except kitchens, required to
have a floor area of at least 70 feet. When more than two people occupy a room for
sleeping purposes, the required floor area increases by 50 square feet. For example, a
bedroom intended for two people could be as small as 70 square feet, while a bedroom
would need to be at least 120 square feet to accommodate three people or at least 170
square feet to accommodate four people.
Likewise, to avoid imposing overly costly and burdensome constraints on group homes,
the best practice is to apply the same general building, fire, and other health and safety
codes that apply to other residences, subject to state health and safety code provisions
specific to certain types of residential facilities.104 Although group home operators may
request reasonable accommodations from public health and safety standards, fair
housing laws allow local governments to deny these requests if, among other things,
they would cause direct threats to public health and safety.
F. REQUIREMENTS FOR OPERATORS AND RESIDENTS
Requirements for operators and residents often take the form of specific services or
management practices that the local jurisdiction feels are necessary for the successful
operation of group homes. These requirements tend to deal with the internal affairs of
the operations and frequently involve issues beyond those in typical land use
regulations. For example, local jurisdictions do not typically regulate the number of daily
visitors to a single-family home or other residential property.
When applied to group homes, these types of regulations raise concerns that a local
government is imposing conditions on them that are contrary to its duties to support
housing for persons with disabilities, prevent discrimination on the basis of disability or
other protected characteristics, and provide reasonable accommodations.
104 See, e.g., Health & Saf. Code, § 13113 (requiring sprinkler systems in certain
licensed residential facilities).
31
Before adopting or applying any such regulations even for licensed group homes, local
governments should analyze whether they are consistent with state housing laws and
document this analysis. Local governments should also consider whether such
regulations are consistent with the Health and Safety Code’s provisions and regulations
for licensed facilities.
Although this Group Home TA cannot address all potential issues regarding potential
regulations of operators and residents, the following are examples of requirements
taken from recent local ordinances:
Imposing Special Parking Requirements on Group Homes. Requiring group homes
to have or construct additional off-street parking spaces can impose considerable costs
that constrain housing opportunities for persons with disabilities. These special parking
requirements will often conflict with the right to privacy under the California
Constitution,105 as well as local governments’ obligations to affirmatively support
housing for persons with disabilities and avoid discriminating against them. Jurisdictions
imposing additional parking requirements assume that group homes serving adults will
have more residents who drive and will therefore use more on-street parking than other
households. But these assumptions should at the very least be tested by studying the
actual causes and extent of on-street parking shortages in an area.106 Local
governments should also consider less discriminatory alternatives, such as street-
parking permit systems for all households or other generally applicable parking and
vehicle regulations.
Restricting Recovery Residence Occupants to Persons Actively Participating in
Recovery Programs. While most occupants of recovery residences participate in
recovery programs, local governments should not impose this as a condition of living in
a recovery residence. There are different models of recovery, not all of which involve
participating in 12-step or similar programs. And recovering from alcoholism or drug
addiction is legally recognized as a protected disability regardless of whether someone
has participated or is currently participating in a recovery or treatment program.107
105 Adamson, supra, 27 Cal.3d at 133 (concluding that parking concerns are best
addressed by limitations that “appl[y] evenly to all households” and concluding that
zoning ordinances are suspect when they focus on users instead of uses).
106 See, e.g., Lauber, supra, n. 16 at 385 & n. 52 (citing studies finding that group
homes do not generate undue amounts of parking or traffic).
107 Hernandez v. Hughes Missile System Co. (9th Cir. 2004) 362 F.3d 564, 568; HUD –
DOJ 2016 Jt. Stmt. on Local Land Use Laws at 7-8.
32
Restricting Occupancy Exclusively to Persons with Disabilities. Regulations
restricting group home occupancy exclusively to persons with disabilities or with a
specific disability may sometimes intrude on individuals’ fair housing choices and
privacy rights. They also risk discriminating on the basis of other protected statuses.
Inflexible occupancy restrictions, for example, could preclude group homes designed for
families in which one member has a disability or recovery residences designed for
parents in recovery who are seeking to reunite with their children.
Restricting Occupants or Staff from Homes Based on Their Criminal History
Records. Policies that prohibit individuals from living in or working at group homes
based on individuals’ criminal history records may be intended to protect the occupants
of these homes. But local governments contemplating adopting or applying such
policies should carefully review California Code of Regulations, title 2, sections 11017.1;
12162, subdivision (b); and 12264-12271, which set parameters on using criminal
history information that, among other things, restrict access to employment or housing.
Local governments should also consider state laws and regulations that apply to
criminal background checks for licensed facilities’ employees.108
Requiring Recovery Residences or AOD Facilities to Immediately Remove
Occupants Who Violate Policies Prohibiting Alcohol or Drug Use. Although Health
and Safety Code section 11834.26, subdivision (d), requires AOD facilities to plan how
to address a resident’s relapse, that subdivision clarifies that this “does not require a
licensee to discharge a resident.” This recognizes that approaches to addressing
someone’s relapse may vary depending on a recovery residence’s or AOD facility’s
program, the circumstances of the relapse, and an individual’s personal history and
needs. Local policies should allow the same flexibility. Moreover, requirements to
immediately remove relapsing residents with tenancy rights may conflict with landlord-
tenant laws.
Other Examples
• House Manager Requirements—requiring group homes to have a house
manager on site around the clock or always available to come to the residence
within 30 or 45 minutes.
• Visitor Restrictions—requiring group homes to limit who can visit and under
what conditions.
108 See, e.g., Health & Saf. Code §§ 1522, 1569.17, 11834.27; Cal. Code Regs., tit. 9,
§§ 10564, 10615, 10624, tit. 22, §§ 80019-19.2.
33
• Records Maintenance—requiring group homes to maintain specific records
about the internal affairs or occupants of the house.
• Codes of Conduct—requiring group homes to have special conduct codes for
their residents.
• Neighborhood Notice Requirements—imposing special neighborhood notice
requirements on group homes.
• Law Enforcement Registration Requirements—requiring group homes to
register with the local sheriff’s office or other law enforcement offices.
Regulations like these can be based on mistaken or prejudicial fears about group
homes, instead of actual data and evidence. Particularly in light of research finding that
fears about group homes endangering neighbors’ health and safety are unfounded, 109
such provisions may in themselves be regarded as evidence that a local government is
not complying with its requirements to affirmatively support housing for persons with
disabilities and prevent discrimination against group homeowners, operators, and
residents.
Regulations like these can also create unnecessary constraints on group homes by
imposing overbroad, additional costs and burdens on the many group homes that
capably serve their occupants’ needs and seamlessly integrate into their communities.
They can intrude on privacy rights. They can discriminate on the basis of disability or
other protected characteristics if, for example, requirements like these are imposed on
group homes but not on other housing. For these reasons, among others, regulations
like these generally conflict with state housing laws.
G. Civil Actions for Operating Without a Required State License
Some categories of group homes, such as all those serving children, require state
licenses. But many, if not most, group homes do not require state licenses to operate.
These include, for example, group homes that provide peer support and limited services
to residents but not the more extensive care and supervision that requires obtaining a
license. Recovery residences that do not provide alcoholism or drug addiction recovery
or treatment services are other examples of group homes that do not require licenses.
Examples of group homes that do require licenses include the ones in this table:
109 See, supra, nn. 15-16.
34
Use Health and Safety Code
Sections
Licensing Agency
Community Care
Residential Facilities
(including various
subcategories)
§ 1500 et seq. &
§ 1569 et seq., e.g.,
California Department of
Social Services (CDSS)
AOD Facilities § 11834.01 et seq. California Department of
Health Care Services
(DHCS)
Some local governments have amended their zoning ordinances to declare that
operating a business without a required state license is a public nuisance. Some of
these ordinances single out recovery residences that are providing recovery or
treatment services without a license. These jurisdictions file civil actions seeking to
abate these nuisances by closing some noncompliant recovery residences, requiring
others to obtain the required license, or imposing limitations on recovery residences that
were not providing recovery or treatment services.
Local governments have discretion to define as public nuisances’ business or
construction activities that are undertaken without a required permit or license. And at
least one California appellate court has upheld a city’s public nuisance action against a
recovery residence where the owners’ own website advertised that they provided on-
site drug addiction treatment services.110
But jurisdictions considering adopting this practice should still carefully assess the
issues and problems that can arise under state law. Guidelines for local governments
considering this include the following:
• Avoid targeting these nuisance actions on group homes operating without
required licenses while ignoring other businesses operating in residences
without required licenses. Although public prosecutors have broad discretion to
prioritize which violations or violators to prosecute, they cannot use this
discretion in ways that discriminate on the basis of disability or other protected
characteristics. Jurisdictions should not single out group homes unlawfully
operating without required licenses while ignoring businesses doing the same
thing in other residences.
110 City of Dana Point v. New Method Wellness, Inc. (2019) 39 Cal.App.5th 985.
35
• Give group homes the same opportunities to respond to and resolve
alleged code violations as other alleged violators. For example, if other
property owners or businesses are allowed to respond to and resolve alleged
code violations during investigations or administrative hearings, those same
procedures should apply to group homes that are allegedly providing services
that require a license without having obtained one.
• Use the processes available through DHCS and CDSS, for example, for
resolving allegations that a group home is operating without a required
license. If a locality has evidence that a residence is providing unlicensed
recovery or treatment services in facilities under DHCS’s jurisdiction or
unlicensed care or supervision for residents in facilities under CDSS’s
jurisdiction, it should use these departments’ processes for investigating such
complaints and abating them if they have merit.111 This is especially important
when group home operators have not openly admitted that they are providing
unlicensed services on-site.
Determining what activities at a group home rise to the level of licensable
services, in contrast to common policies or mutual support activities that do not
require licenses, can involve nuanced and technical issues that are beyond the
expertise of most local planning or code enforcement staff. DHCS’s and CDSS’s
staff have the expertise and experience to investigate these claims, make these
determinations, and abate violations of the licensing laws they enforce.
If jurisdictions are filing their own, more costly civil actions to resolve disputes
over whether a group home requires a license, this runs the risk of courts issuing
mistaken rulings without the benefit of DHCS’s or CDSS’s findings and
expertise.112 It also raises questions under state housing laws about why a local
government is not availing itself of DHCS’s or CDSS’s procedures and opting
instead to subject a group home to more expensive and burdensome civil
litigation.
111 See, e.g., Cal. Code Regs., tit. 9, § 10542, tit. 22, § 80006.
112 Cf. Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 390 (explaining
that under primary jurisdiction doctrine, courts may suspend proceedings to allow an
administrative agency with specialized expertise to determine an issue within the scope
of its regulatory authority).
36
H. ENFORCING GENERALLY APPLICABLE MUNICIPAL CODES AND OTHER
LAWS
If group home operators are engaging in activities that constitute public nuisances;
violating generally applicable building, housing, or other health and safety laws;
committing fraud; or engaging in other illegal activities, local governments can address
these issues through the same code enforcement and other legal processes they apply
to others who violate municipal codes and other laws. This may still require considering
if reasonable accommodations are appropriate in some circumstances. And local
governments should avoid overbroad or discriminatory applications of nuisance laws,
such as basing nuisance actions on 911 calls for emergency services.113 But if a group
home is found to have violated local or state law, local governments may seek equitable
relief that could include more stringent oversight and other affirmative relief to prevent
further violations.
Focusing on individual group homes that are actually causing problems is a better
practice than adopting overly broad and constraining regulations for all group homes
that conflict with state housing laws.
8. RESOURCE MATERIALS AND STATE CONTACTS
Resource Materials
Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for
Housing Elements (April 2021 Update), available at
https://www.hcd.ca.gov/community-development/affh/docs/affh_document_final_4-
27-2021.pdf
Housing Accountability Act Technical Assistance Advisory, HCD (Sep. 15, 2020),
available at https://www.hcd.ca.gov/community-development/housing-
element/housing-element-memos/docs/hcd-memo-on-haa-final-sept2020.pdf
Housing Element Building Blocks, HCD, available at
https://www.hcd.ca.gov/planning-and-community-development/housing-
elements/building-blocks
113 See. e.g., Cal. Code Regs., tit. 2, § 12162, subd. (a); United States Department of
Housing and Urban Development, Office of General Counsel Guidance on Application
of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free
Housing Ordinances (Sep. 13, 2016), available at
https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF.
37
Housing Element Building Blocks – Constraints for People with Disabilities, HCD,
available at https://www.hcd.ca.gov/planning-and-community-development/housing-
elements/building-blocks/constraints-people-disabilities
Housing Element Building Blocks – Persons with Disabilities, HCD, available at
https://www.hcd.ca.gov/planning-and-community-development/housing-
elements/building-blocks/people-disabilities-including-developmental-disabilities
Housing Element Building Blocks – Zoning for a Variety of Housing Types, HCD,
available at https://www.hcd.ca.gov/planning-and-community-development/housing-
elements/building-blocks/zoning-variety-of-housing-types
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice – State and Local Land Use Laws and Practices and the
Application of the Fair Housing Act, HUD - DOJ (Nov. 10, 2016), available at
https://www.justice.gov/opa/file/912366/download
Senate Bill 2—Legislation Effective January 1, 2008: Local Planning and Approval
for Emergency Shelters and Transitional and Supportive Housing, HCD
(Apr. 10, 2013 update), available at https://www.hcd.ca.gov/community-
development/housing-element/housing-element-memos/docs/sb-2-combined-
update-mc-a11y.pdf
Transitional and Supportive Housing, Chapter 183, Statutes of 2013 (SB 745), HCD
(Apr. 24, 2014), available at https://www.hcd.ca.gov/community-
development/housing-element/housing-element-
memos/docs/sb745memo042414.pdf
Contacts
HCD
HCD accepts requests for technical assistance from local jurisdictions and requests
for review of potential violations from any party. All comments submitted to HCD are
subject to the California Public Records Act. Send email requests
to: ComplianceReview@hcd.ca.gov.
California Department of Health Care Services (DHCS)
Information about DHCS’s complaint process for licensing issues at AOD facilities is
available at https://www.dhcs.ca.gov/individuals/Pages/Sud-Complaints.aspx, by
emailing sudcomplaints@dhcs.ca.gov, or by calling (877) 685-8333.
California Department of Social Services (CDSS)
Information about CDSS’s complaint process for licensing issues at facilities that it
regulates is available at https://www.cdss.ca.gov/reporting/file-a-complaint/ccld-
complaints or by calling (844) 538-8766.
EXHIBIT 3
22-56181
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE OHIO HOUSE, LLC,
Plaintiff-Appellant,
v.
CITY OF COSTA MESA,
Defendant-Appellee.
On Appeal from the United States District Court
for the Central District of California
Case No. 8:19-cv-01710-JVS-GJS
Hon. James V. Selna, District Judge
BRIEF OF AMICI CURIAE THE CALIFORNIA CIVIL
RIGHTS DEPARTMENT AND THE CALIFORNIA
DEPARTMENT OF HOUSING AND COMMUNITY
DEVELOPMENT IN SUPPORT OF APPELLANT AND
REVERSAL
ROB BONTA
Attorney General of California
MICHAEL L. NEWMAN
DANIEL A. OLIVAS
Senior Assistant Attorneys General
JAMES F. ZAHRADKA II
CHRISTINA BULL ARNDT
Supervising Deputy Attorneys
General
LISA C. EHRLICH (SBN 270842)
KENNETH J. SUGARMAN
Deputy Attorneys General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 510-3489
Email: Lisa.Ehrlich@doj.ca.gov
Attorneys for California Civil Rights
Department and California Department
of Housing and Community
Development
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TABLE OF CONTENTS
Page
i
INTRODUCTION AND INTERESTS OF AMICI ...................................... 1
ARGUMENT ................................................................................................. 3
I. California Law Prohibits Housing Discrimination
Against People with Disabilities ............................................... 4
A. FEHA and Its Implementing Regulations Prohibit
Land Use Practices that Discriminate Against
People with Disabilities .................................................. 5
B. California’s Constitutional Privacy Right Protects
Group Home Residents ................................................. 12
II. The Judgment Below Should Be Reversed Because Costa
Mesa’s Ordinances Violate California Law ............................ 13
A. Costa Mesa Failed to Make the Showings
Necessary to Sustain Its Facially Discriminatory
Ordinances Under FEHA .............................................. 14
B. Costa Mesa Failed to Demonstrate Compliance
with FEHA Reasonable Accommodation
Requirements ................................................................ 21
III. Restrictive Zoning Codes Like Costa Mesa’s Are
Contrary to Public Policy and Have a Negative Impact on
Housing for Californians with Disabilities ............................. 25
CONCLUSION ............................................................................................ 29
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TABLE OF AUTHORITIES
Page
ii
CASES
Auburn Woods I Homeowners Ass’n v. Fair Emp’t & Hous.
Comm’n
121 Cal. App. 4th 1578 (2004) ...................................................................7
Broadmoor San Clemente Homeowners Ass’n v. Nelson
25 Cal. App. 4th 1 (1994) .................................................................. 13, 15
Brown v. Smith
55 Cal. App. 4th 767 (1997) .. ....................................................................7
City of Santa Barbara v. Adamson
27 Cal. 3d 123 (1980) .................................................................. 12, 17, 24
City of Santa Barbara v. Adamson
90 Cal. App. 3d 606 (1979) ..................................................................... 17
Coal. Advocating Legal Hous. Options v. City of Santa Monica
88 Cal. App. 4th 451 (2001) .................................................................... 12
Martinez v. City of Clovis
90 Cal. App. 5th 193 (2023) .................................................... 7, 11, 12, 16
Oconomowoc Residential Programs, Inc. v. City of Milwaukee
300 F.3d 775 (7th Cir. 2002) ............................................................. 15, 25
Pac. Shores Props., LLC v. City of Newport Beach
730 F.3d 1142 (9th Cir. 2013) ....................................................................6
Pack v. Fort Washington II
689 F. Supp. 2d 1237 (E.D. Cal. 2009) ................................................... 20
Page v. Super. Ct.
31 Cal. App. 4th 1206 (1995) .....................................................................7
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TABLE OF AUTHORITIES
(continued)
Page
iii
Socal Recovery, LLC v. City of Costa Mesa
56 F.4th 802 (9th Cir. 2023) ................................................................ 6, 28
Sada v. Robert F. Kennedy Med. Ctr.
56 Cal. App. 4th 138 (1997) … ................................................................ 6
Walker v. City of Lakewood
272 F.3d 1114 (9th Cir. 2001) ....................................................................6
Yamaha Corp. of Am. v. State Bd. of Equalization
19 Cal. 4th 1 (1998) ....................................................................................7
STATUTES AND REGULATIONS
United States Code, Title 42
§ 3601 .........................................................................................................6
§ 3631 .........................................................................................................6
California Government Code
§ 8899.50 ....................................................................................... 1, 18, 24
§ 8899.50(a)(1) .................................................................................. 10, 11
§ 12161 .......................................................................................................8
§ 12161(a) ...................................................................................................8
§ 12161(b) ...................................................................................................8
§ 12162 .......................................................................................................8
§ 12900 .................................................................................................. 1, 5
§ 12920 .......................................................................................................1
§ 12921 .......................................................................................................1
§ 12921(b) ...................................................................................................5
§ 12926(j) ....................................................................................................6
§ 12927(c)(1) ................................................................................... 5, 9, 23
§ 12930(e) ...................................................................................................1
§ 12930(j) ....................................................................................................1
§ 12935(a) ...................................................................................................7
§ 12955 .......................................................................................................5
§ 12955(l) ....................................................................................... 5, 10, 12
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TABLE OF AUTHORITIES
(continued)
Page
iv
§ 12955(m) ..................................................................................................6
§ 12999 .................................................................................................. 1, 5
§ 65000 .................................................................................................... 10
§ 65008 .......................................................................................................1
§ 65580 .......................................................................................................1
§ 65582(f) ................................................................................................ 10
§ 65583 .................................................................................................... 10
§ 65583(a)(5) ......................................................................... 11, 16, 18, 24
§ 65583(a)(7) ............................................................................... 11, 16, 18
§ 65583(b)(1) ..................................................................................... 11, 18
§ 65583(c)(3) ............................................................................... 11, 18, 24
§ 65583(c)(5) ..................................................................................... 18, 24
§ 65583(c)(10)(A) .............................................................................. 18, 24
§ 65583(c)(10)(A)(ii) ......................................................................... 11, 18
§ 65583(c)(10)(A)(iv) .................................................................. 11, 16, 18
§ 65585(a) ...................................................................................................2
§ 65585(e) ...................................................................................................2
§ 65585(j) ....................................................................................................2
§ 65589.11 ..................................................................................................1
§ 66499.58 ............................................................................................... 10
California Health and Safety Code
§ 50152 .......................................................................................................2
§ 50456 .......................................................................................................2
§ 50459 .......................................................................................................2
§ 50464 .......................................................................................................2
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TABLE OF AUTHORITIES
(continued)
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v
California Code of Regulations, title 2
§ 12005 .................................................................................. 1
§ 12005(bb) ........................................................................ 7, 8
§ 12040(c) ............................................................................ 14
§ 12042(f)(1)(A) ........................................................ 9, 14, 19
§ 12042(f)(1)(B) .................................................................... 9
§ 12042(f)(2) .............................................................. 9, 14, 20
§ 12176(c) .............................................................................. 9
§ 12177 ................................................................................ 21
§ 12177(a) ...................................................................... 10, 21
§ 12177(c) ...................................................................... 10, 21
§ 12179(b)(1) ....................................................................... 22
§ 12179(e) ........................................................................ 9, 22
§ 12179(f) ........................................................................ 9, 22
§ 12180(c)(6) ....................................................................... 23
§ 12271 .................................................................................. 1
CONSTITUTIONAL PROVISIONS
California Constitution Article I, § 1 ............................................................ 12
COURT RULES
Federal Rules of Appellate Procedure
Rule 29(a)(2) ...............................................................................................3
Rule 29(a)(4)(E) ..........................................................................................3
OTHER AUTHORITIES
Cal. Dep’t of Hous. and Cmty. Dev., Group Home Technical
Advisory (2022),
https://www.hcd.ca.gov/sites/default/files/docs/planning-
and-community/group-home-technical-advisory-2022.pdf ............. passim
City Approved Sober Living/Group Homes, Costa Mesa,
https://tinyurl.com/yukycasy ................................................................... 28
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TABLE OF AUTHORITIES
(continued)
Page
vi
Fusion Ctr., Data Brief: 2020 and 2021 Increases in Deaths in
California, Cal. Dep’t of Pub. Health (July 1, 2022),
https://tinyurl.com/4bbcb5d4 ................................................................... 28
Group Homes/Sober Living Information and Application, Costa
Mesa, https://tinyurl.com/4wjhb6ky ........................................................ 29
Korcha et al., Sober Living Houses: Research in Northern and
Southern California, Addiction Science & Clinical Practice
(2015), https://tinyurl.com/rh8prtbw ....................................................... 26
Mericle et al., Identifying the Availability of Recovery Housing
in the U.S.: The NSTARR Project, Drug and Alcohol
Dependence 230 (2022), https://tinyurl.com/y48mpfze .......................... 28
Polcin et al., Sober Living Houses for Alcohol and Drug
Dependence: 18-Month Outcomes, J. of Substance Abuse
Treatment (2010), https://tinyurl.com/2ba5ccbw .................................... 17
Polcin et al., What Did We Learn from Our Study on Sober
Living Houses and Where Do We Go from Here? J. of
Psychoactive Drugs (Dec. 2010),
https://tinyurl.com/yzcxmb3r .................................................................. 26
Substance Abuse and Mental Health Servs. Admin., Recovery
Housing: Best Practices and Suggested Guidelines (2018),
https://tinyurl.com/mr4c4arz ................................................................... 26
U.S. Dep’t of Health & Human Servs., Facing Addiction in
America: The Surgeon General’s Report on Alcohol, Drugs,
and Health (2016), https://tinyurl.com/ssnem8v3 ................................... 25
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1
INTRODUCTION AND INTERESTS OF AMICI
Californians have the right to obtain and hold housing of their choice
without discrimination based on disability. Cal. Gov’t Code §§ 12920-
12921.1 In fact, California law requires local governments to take
affirmative actions to further opportunities for people with disabilities to live
where they choose, in housing that meets their particular needs. These rights
and requirements are enumerated in several state laws, including the
California Fair Employment and Housing Act (FEHA, id. §§ 12900-12999)
and its implementing regulations; the Housing Element Law (id. §§ 65580-
65589.11); the Land Use Anti-Discrimination Law (id. § 65008); and the
Affirmatively Furthering Fair Housing Law (id. § 8899.50).
The California Civil Rights Department (CRD, formerly known as the
Department of Fair Employment and Housing) is the state agency charged
with enforcing California’s civil rights laws, including the fair housing
protections in FEHA. In exercising this authority, CRD has promulgated
comprehensive regulations implementing FEHA, see, e.g., Cal. Code Regs.
tit. 2, §§ 12005-12271, and has investigated and prosecuted civil actions
under FEHA in state and federal court, see Gov’t Code § 12930(e)-(j). CRD
1 All statutory citations are to the California Codes unless otherwise
indicated.
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thus has a strong interest in the proper application of FEHA standards in
housing discrimination cases in California.
The California Department of Housing and Community Development
(HCD) is the state agency responsible for enforcing housing laws in
California, and has “primary responsibility for development and
implementation of housing policy.” Health & Safety Code § 50152; see also
Gov’t Code § 65585(j). HCD’s responsibilities also include advising cities
on state housing law and policy, developing guidelines on “housing
elements” and other housing law issues, and reviewing each local
government’s housing element for substantial compliance with the Housing
Element Law. Health & Safety Code §§ 50456, 50459, 50464; Gov’t Code
§ 65585(a)-(e). One of HCD’s recent initiatives to carry this mandate out is
its Group Home Technical Advisory, which was issued in 2022 in response
to legal concerns around some local governments’ adoption of new zoning
regulations for group homes—housing shared by people with disabilities that
provides support for the residents’ disability-related needs—and explained
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how these regulations can conflict with state law.2 HCD thus has a strong
interest in the proper application of state housing laws and their interaction
with FEHA, including in the area of group homes.3
As discussed further below, it appears to amici that the district court
failed to properly apply the broad protections California law affords people
with disabilities with respect to housing. Amici therefore respectfully submit
this brief to aid this Court’s consideration of the important state law issues
this case presents.
ARGUMENT
California law protects people with disabilities from housing
discrimination, and requires cities to take affirmative actions in their land-
use rules to advance the ability of people with disabilities to live in
neighborhoods of their choice and in residential settings that address their
2 This document is available on the Department’s website at
https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/
group-home-technical-advisory-2022.pdf.
3 No party’s counsel authored this brief in whole or in part; no party or
party’s counsel contributed money that was intended to fund preparing or
submitting this brief; and no person other than the amici curiae contributed
money that was intended to fund preparing or submitting this brief. See Fed.
R. App. P. 29(a)(4)(E). Amici have filed a motion for leave along with this
brief, as the City of Costa Mesa refused to consent to the filing. See Fed. R.
App. P. 29(a)(2).
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particular disability-related needs. As one aspect of that statutory and
regulatory scheme, FEHA requires courts to carefully scrutinize local land
use laws, like Costa Mesa’s, that facially discriminate against group homes
for people with disabilities. Such laws are permissible only if they
objectively benefit people with disabilities and are the least restrictive means
of achieving the municipality’s policy objectives. The judgment below
should be reversed because Costa Mesa failed to make such a showing, and
also failed to satisfy FEHA’s reasonable-accommodation requirements.
Ordinances like Costa Mesa’s not only violate fundamental principles of
state housing and antidiscrimination law; they are also contrary to
California’s critical public policy goals and do real harm to people with
disabilities.4
I.CALIFORNIA LAW PROHIBITS HOUSING DISCRIMINATION
AGAINST PEOPLE WITH DISABILITIES
FEHA and its regulations expressly prohibit housing discrimination
against protected classes of individuals, including people with disabilities.
FEHA’s protection includes its incorporation of other state housing laws as a
4 As Appellant’s opening brief explains, it appears that federal law
may require reversal as well. But amici will address only certain state law
issues in this brief.
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potential basis for liability. In addition, the California Constitution provides
a privacy right that extends to group housing.
A. FEHA and Its Implementing Regulations Prohibit Land
Use Practices that Discriminate Against People with
Disabilities
FEHA provides comprehensive protection against housing and
employment discrimination in California. Gov’t Code §§ 12900-12999. It
establishes as a “civil right” the “opportunity to seek, obtain, and hold
housing without discrimination” on the basis of a number of enumerated
protected characteristics. Id. § 12921(b). FEHA prohibits specific unlawful
housing practices, including discrimination or harassment generally,
retaliation, otherwise making unavailable or denying a dwelling based on
discrimination, and discriminating through public or private land use
practices. Id. § 12955; see id. § 12955(l) (“Discrimination includes, but is
not limited to, restrictive covenants, zoning laws, denials of use permits, and
other actions authorized under the Planning and Zoning Law . . . that make
housing opportunities unavailable.”). FEHA defines “discrimination” to
include the “refusal to make reasonable accommodations in rules, policies,
practices, or services when these accommodations may be necessary to
afford a disabled person equal opportunity to use and enjoy a dwelling.” Id.
§ 12927(c)(1).
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FEHA prohibits discrimination based on, among other characteristics,
disability, and “includes a perception that the person has any of those
characteristics or that the person is associated with a person who has, or is
perceived to have, any of those characteristics.” Gov’t Code § 12955(m).
Individuals recovering from addiction are recognized as people with
disabilities, see id. § 12926(j), and “sober living homes and other dwellings
intended for occupancy by persons recovering from alcoholism and drug
addiction are protected from illegal discrimination against the disabled.”
Socal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 814 (9th Cir.
2023).
FEHA and its federal law counterpart, the Fair Housing Act (FHA), 42
U.S.C. §§ 3601-3631, are related but offer distinct sets of protections.
California courts applying FEHA “‘often follow decisions construing federal
antidiscrimination statutes, as long as those decisions provide appropriate
guidance.’” Walker v. City of Lakewood, 272 F.3d 1114, 1126 (9th Cir.
2001) (quoting Sada v. Robert F. Kennedy Med. Ctr., 56 Cal. App. 4th 138,
150 n.6 (1997)). Thus, in some instances, this Court “‘appl[ies] the same
standards to FHA and FEHA claims.’” Pac. Shores Props., LLC v. City of
Newport Beach, 730 F.3d 1142, 1156 n.14 (9th Cir. 2013) (quoting Walker,
272 F.2d at 1131 n.8). But FEHA has force independent of the FHA, and in
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certain situations it “may provide greater protection against
discrimination”—that is, “the FHA provides a minimum level of protection
that FEHA may exceed.” Auburn Woods I Homeowners Ass’n v. Fair Emp’t
& Hous. Comm’n, 121 Cal. App. 4th 1578, 1591 (2004) (quoting Brown v.
Smith, 55 Cal. App. 4th 767, 780 (1997)); see also, e.g., Page v. Super. Ct.,
31 Cal. App. 4th 1206, 1215-16 (1995) (declining to follow federal decisions
that would limit supervisor’s personal liability under California
antidiscrimination statute); Martinez v. City of Clovis, 90 Cal. App. 5th 193,
254-73 (2023) (analyzing FEHA claim separately from FHA claim), petition
for review pending, No. S280039 (Cal.).
Pursuant to its legislative authority, see Gov’t Code § 12935(a), CRD
has promulgated regulations implementing FEHA. These “quasi-legislative”
regulations, which “have the dignity of statutes” under principles of
California administrative law, Yamaha Corp. of Am. v. State Bd. of
Equalization, 19 Cal. 4th 1, 10-11 (1998), are relevant to this case in at least
three respects.
First, the FEHA regulations incorporate acts under other state housing
laws into the definition of “[p]ublic land use practices” that can be
challenged as discriminatory under FEHA. Cal. Code Regs. tit. 2, §
12005(bb). The regulations define “[p]ublic land use practices” to include
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“all practices by governmental entities . . . in connection with development
and land use that are related to or have an effect on existing or proposed
dwellings or housing opportunities.” Id.5 The FEHA regulations specifically
prohibit discriminatory treatment and discriminatory effects in such land use
practices. Id. §§ 12161-12162. The regulations’ definition of “land use
practices” thus covers a broad range of potential public action, and prohibits
such actions that make housing opportunities unavailable for people with
disabilities and impose different requirements on a protected class, if the
practice intentionally discriminates against or has a discriminatory effect on
members of the protected class. Id. §§ 12005(bb), 12161(a)-(b).
Second, when a public entity’s land use policy is facially
discriminatory—as is the case with Costa Mesa’s ordinances here, see infra
at 14—the entity must make two specific showings to avoid liability. It must
establish that the policy both “[o]bjectively benefits a protected class” and
5 These practices include, among other things, adoption of ordinances,
permitting and zoning decisions, actions under the Housing Element Law
(part of the California Planning and Zoning Law and the State Housing Law,
both cited in the regulation), and “[a]ll practices that could affect the
availability, feasibility, use, or enjoyment of housing opportunities.” Cal.
Code Regs., tit. 2, § 12005(bb).
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“[i]s the least restrictive means of achieving the identified purpose.” Cal.
Code Regs. tit. 2, § 12042(f)(1)(A), (f)(2).6
Third, the FEHA regulations also implement the statute’s reasonable
accommodation requirement. See Gov’t Code § 12927(c)(1). As applicable
to zoning and permitting cases, a public entity must “make reasonable
accommodations unless providing the requested accommodation would
constitute an undue financial and administrative burden or a fundamental
alteration of its program.” Cal. Code Regs. tit. 2, § 12176(c); see Gov’t Code
§ 12927(c)(1) (discrimination can include failure to make reasonable
accommodations).7 Moreover, the regulations require that whenever a public
entity cannot immediately grant a reasonable accommodation request, it
must undertake a good-faith interactive process “to exchange information to
6 In addition, or as an alternative, to demonstrating an “objective
benefit,” an entity may also show the policy “[r]esponds to legitimate safety
concerns raised by the individuals affected by the facially discriminatory
policy, rather than being based on stereotypes about them.” Cal. Code Regs.
tit. 2, § 12042(f)(1)(B). Here, the district court found the City had not
offered any such concerns at trial to justify its regulations. ER 10.
7 A proposed accommodation constitutes a “fundamental alteration”
only if it would “change the essential nature of the services or operations of
the person being asked to provide the accommodation or modification,” and
cannot be denied based on “fears or prejudices” about the disability, or
because it “might possibly become an undue burden if extended to multiple
other individuals who might request accommodations or modifications.”
Cal. Code Regs. tit. 2, § 12179(e)-(f).
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identify, evaluate, and implement a reasonable accommodation or
modification that allows the individual with a disability equal opportunity.”
Cal. Code Regs. tit. 2, § 12177(a). This includes affirmatively “identify[ing]
if there is another accommodation or modification that is equally effective.”
Id. § 12177(c).
In addition to these regulatory provisions, FEHA’s prohibition of
actions that “make housing opportunities unavailable” based on protected
characteristics, Gov’t Code § 12955(l), is informed by state laws that require
local jurisdictions to plan for and accommodate adequate housing
opportunities for all individuals. A key aspect of the Planning and Zoning
Law, Gov’t Code §§ 65000-66499.58, is the requirement that local
governments prepare a housing element, see id. § 65582(f). In that
document, cities must thoroughly analyze fair housing issues related to
housing for people with disabilities and set forth a program of actions that
protect and promote such housing, as well as meaningfully, quantifiably, and
affirmatively further fair housing. Id. § 65583.8 Among other requirements,
8 ‘“Affirmatively furthering fair housing”’ is defined under California
law to include “taking meaningful actions, in addition to combating
discrimination, that overcome patterns of segregation and foster inclusive
communities free from barriers that restrict access to opportunity based on
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the housing element must “demonstrate local efforts to remove
governmental constraints that hinder . . . meeting the need for housing for
persons with disabilities,” id. § 65583(a)(5), and must “remove constraints
to, and provide reasonable accommodations for housing designed for,
intended for occupancy by, or with supportive services for, persons with
disabilities,” id. § 65583(c)(3). It must include a fair housing assessment
with specific goals, implementation strategies, and “metrics and milestones”
for evaluating results. Id. § 65583(c)(10)(A)(iv). Notably, to satisfy these
obligations, cities are required to use and adduce data, analyses, and
quantitative objectives. See, e.g., id. § 65583(a)(5), (a)(7), (b)(1), &
(c)(10)(A)(ii). In other words, numerous provisions of state housing law
address the adequacy of local policies in protecting and promoting housing
opportunities for people with disabilities.
Recently, the California Court of Appeal held that local governmental
actions that violate the Planning and Zoning Law (including the Housing
Element Law) and make housing opportunities unavailable to members of a
protected class also violate FEHA. Martinez, 90 Cal. App. 5th at 268-71.
The court concluded that the plaintiff had stated a FEHA claim by pleading
protected characteristics.” Gov’t Code § 8899.50(a)(1) (internal quotation
marks in original).
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that a local government’s failure to comply with the Housing Element Law
“‘make[s] housing opportunities unavailable’ as that phrase is used in . . .
section 12955, subdivision (l).” Id. at 269. Martinez thus underscores that
one important aspect of FEHA’s housing-related protections stems from the
statute’s interaction with other state housing laws.
B. California’s Constitutional Privacy Right Protects Group
Home Residents
In addition to these state statutory and regulatory provisions, the
California Constitution provides protections for people with disabilities
living in communal, group home settings that courts must consider when
examining local ordinances. This protection stems from Article I, Section 1
of the California Constitution, which declares an “inalienable right[]” to
(among other things) “privacy.”
In City of Santa Barbara v. Adamson, 27 Cal. 3d 123 (1980), the
California Supreme Court held that this constitutional privacy right
prohibited a city ordinance that disallowed more than five persons unrelated
by blood or marriage from living in a communal setting. Id. at 134. The
court explained that the state Constitution protects a “right of privacy not
only in one’s family but also in one’s home . . . [and] the right to live with
whomever one wishes.” Id. at 130; see also Coal. Advocating Legal Hous.
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Options v. City of Santa Monica, 88 Cal. App. 4th 451, 458-61 (2001)
(rejecting city’s limitations on who may live in an accessory dwelling unit
because “the right to choose with whom to live is fundamental”).
This protection is relevant here because of the importance of communal
living arrangements to people with disabilities. Group homes can provide
peer support for disability-related needs, help people with disabilities live in
deinstitutionalized settings, and integrate residents into their communities.
See Group Home Technical Advisory at 1, 6. As a result, the California
Legislature has recognized that “‘persons with disabilities . . . are
significantly more likely than other persons to live with unrelated persons in
group [homes].’” Broadmoor San Clemente Homeowners Ass’n v. Nelson,
25 Cal. App. 4th 1, 6 (1994) (quoting 1992 Cal. Stat., ch. 1277, § 18, and 12
West Cal. Legis. Serv. 6038 (legislative finding and declaration in statute
relating to fair housing)).
II.THE JUDGMENT BELOW SHOULD BE REVERSED BECAUSE COSTA
MESA’S ORDINANCES VIOLATE CALIFORNIA LAW
The district court failed to properly apply the state law principles just
discussed, and there was no legally sufficient evidentiary basis for a
reasonable jury to find for Costa Mesa, necessitating reversal.
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A.Costa Mesa Failed to Make the Showings Necessary to
Sustain Its Facially Discriminatory Ordinances Under
FEHA
Costa Mesa’s ordinances at issue here apply to “group homes,” which
are defined as dwellings “being used as a supportive living environment for
persons who are considered handicapped under state or federal law.” ER
251. As the district court correctly recognized, see ER 252, this scheme is a
“‘[f]acially discriminatory policy’” because it “explicitly conditions a
housing opportunity on a protected basis, takes adverse action based on a
protected basis, or directs adverse action to be taken based on a protected
basis.” Cal. Code Regs. tit. 2, § 12040(c) (internal quotation marks in
original). Thus, to avoid liability here, Costa Mesa bore the burden of
establishing both that its law “[o]bjectively benefits a protected class,” id.
§12042(f)(1)(A), and that it “[i]s the least restrictive means of achieving the
identified purpose,” id. § 12042(f)(2). Costa Mesa did not satisfy either
prong of this analysis.
“Objectively benefits a protected class.” Costa Mesa’s
counterintuitive argument that its ordinances, which facially discriminate
against group homes, in fact “objectively benefit” people with disabilities,
ER 6-10, suffers from two key flaws.
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First, the gravamen of Costa Mesa’s successful “benefits” argument
was that its policy purportedly advantages group homes by allowing them to
avoid the restrictions the City places on “boarding houses”—i.e., a 1,000-
foot spacing requirement, exclusion from a single-family residential zone,
and “a six-person and six-room limit.” See, e.g., ER 6-10. But a comparison
between group homes for people with disabilities and boarding houses is
inapt. The communal living, peer support, and other assistance that group
homes provide are essential housing resources for people with disabilities,
who may not be able to live without them, unlike the non-disabled residents
of boarding houses. Oconomowoc Residential Programs, Inc. v. City of
Milwaukee, 300 F.3d 775, 787 (7th Cir. 2002). Thus, group homes, unlike
boarding houses, are protected by state and federal fair housing laws. See
e.g., Broadmoor San Clemente Homeowners Ass’n, 25 Cal. App. 4th. at 6;
Group Home Technical Advisory at 24.
The City has failed to carry its burden to justify its regulations in this
case, because treating people with disabilities who require group homes
slightly better than “boarding house” residents is irrelevant. See
Oconomowoc, 300 F.3d at 787. Costa Mesa’s regulations placing burdens
and restrictions on group homes do not result in a “benefit” to people with
disabilities, who have needs addressed by group homes that people without
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disabilities who live in boarding houses do not share. Nor has the City
shown that it would actually be lawful to impose on group homes the
restrictions it imposes on boarding houses, or that Ohio House and other
group homes would not be entitled to reasonable accommodations from
them. The “benefits” defense based on a comparison to boarding houses fails
as a matter of law.
Costa Mesa’s restrictions on group homes also conflict with the City’s
obligations under state law to affirmatively further fair housing for people
with disabilities and account for their particular needs. Among other
deficiencies, the City’s policy fails to account for the “special housing
needs” of “persons with disabilities,” Gov’t Code § 65583(a)(7); fails to
“remove governmental constraints” on housing for people with disabilities,
id. § 65583(a)(5); and fails to give “highest priority” to factors that “limit or
deny fair housing choice or access to opportunity” for people with
disabilities, id. § 65583(c)(10)(A)(iv). These failures may well
independently violate FEHA by virtue of making housing opportunities
unavailable to people with disabilities. See Martinez, 90 Cal. App. 5th at
268-70; supra at 10-12. At a minimum, however, they should foreclose
Costa Mesa’s argument that its facially discriminatory ordinances somehow
objectively benefit people with disabilities.
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The City seeks to distinguish Ohio House from other shared housing
that it treats like single-family homes because not all of its occupants are
joint owners or tenants. ER 5606, 5918. But in Adamson, the Court held that
the California Constitution’s protection of privacy rights still applies when a
property owner or primary tenant (like Ohio House) is renting out rooms for
others to live in a communal setting. See Adamson, 27 Cal. 3d at 127-28,
136 & n.5; City of Santa Barbara v. Adamson, 90 Cal. App. 3d 606, 153 Cal.
Rptr. 507, 509 (1979) (confirming that Adamson was renting space in her
house to the other occupants). In addition, group homes like Ohio House, in
which the occupants are not joint owners or tenants, are well-established and
important communal housing resources for people with disabilities.9 It is
incongruous to suggest that restrictions contradicting state constitutional
rights could provide a legally cognizable “benefit” to people who live in
group homes.
Second, in addition to the legal inadequacy of the alleged benefits
themselves, Costa Mesa failed to meet its burden to produce sufficient
9 See Group Home Technical Advisory at 24-25; Polcin et al., Sober
Living Houses for Alcohol and Drug Dependence: 18-Month Outcomes, J. of
Substance Abuse Treatment (2010); 38(4):356-365, at 2-4,
https://tinyurl.com/2ba5ccbw.
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evidence of the imposed restrictions’ supposed benefit to people with
disabilities. This failure is inconsistent with California’s housing laws,
which require public agencies to take meaningful actions to affirmatively
further fair housing and to make related assessments in their planning,
supported by objective, quantifiable data. Gov’t Code §§ 8899.50,
65583(c)(10)(A). This includes an obligation to assess displacement risk, id.
§ 65583(c)(10)(A)(ii); analyze potential and actual governmental constraints
on housing for people with disabilities and demonstrate efforts to remove
constraints, id. § 65583(a)(5); perform a quantifiable analysis of housing
needs for people with disabilities, id. § 65583(a)(7); state goals and
quantified objectives relative to affirmatively furthering fair housing, id.
§ 65583(b)(1); address and work to remove constraints on housing for
people with disabilities, id. § 65583(c)(3); and promote housing for people
with disabilities, id. § 65583(c)(5).
Instead, the City’s “benefits” defense relied on subjective, speculative,
and unsubstantiated opinions that people with disabilities could benefit from
the City’s policy both allowing for the siting of group homes where they
purportedly would not otherwise be allowed if they were regulated as
“boarding houses,” and requiring 650-foot separation to prevent potential
feelings of institutionalization for group home residents. See, e.g., ER 7-10.
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Related, the City failed to fully consider and support with sufficient
evidence, for example, the extent to which its policy precludes group homes
in areas or locations where they otherwise would be sited, or already have
been sited, ignoring the creation of new constraints on housing for people
with disabilities. And the City failed to fully consider and support with
sufficient evidence whether more housing opportunities of their choice for
the protected class would be in fact lost rather than gained as a result of the
policy, including ignoring displacement risks. As a result, the district court
lacked the requisite objective evidence, such as detailed quantitative data,
studies, or assessments of what the needs of people with disabilities were or
what the actual effects of the City’s group home policy would be. See
generally ER 6-10; see also Cal. Code Regs. tit. 2, § 12042(f)(1)(A)
(requiring defendants to show that a facially discriminatory housing policy
“[o]bjectively benefits a protected class”). Indeed, what is known about the
ordinances’ actual effects undermines the City’s claim, despite the lack of
detailed quantitative studies. Those effects will include displacing dozens of
people from their Ohio House homes and effectively imposing quotas on
how many people recovering from addiction can live in each of the City’s
various neighborhoods, and therefore in the City as a whole.
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“Least restrictive means.” Even if Costa Mesa had been able to show
that its ordinances objectively benefit people with disabilities, it would also
have had to establish that its policy “[i]s the least restrictive means of
achieving the identified purpose.” Cal. Code Regs. tit. 2, § 12042(f)(2); Pack
v. Fort Washington II, 689 F. Supp. 2d 1237, 1243-44, 1248 (E.D. Cal.
2009) (granting summary adjudication on FEHA facial discrimination claim
because rule was not the least restrictive means of achieving alleged purpose
and noting possible alternative rule).
The City did not demonstrate with sufficient evidence that it was
unable to achieve its central claimed purpose—avoiding the creation of
institutionalized living in residentially zoned areas—by less restrictive
means than it chose. Again, assuming for purposes of discussion that the
City’s goal of limiting “institutionalization” was legitimate, the district court
failed to scrutinize, for example, the City’s claimed need for at least 650 feet
of space between group homes as the least restrictive means of achieving
this purpose. See, e.g., ER 8-9 (lack of discussion of possible less restrictive
alternatives the jury could have considered). This constitutes an independent
ground for invalidating the City’s facially discriminatory ordinances.
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B. Costa Mesa Failed to Demonstrate Compliance with
FEHA Reasonable Accommodation Requirements
Apart from having enacted facially discriminatory ordinances, the
record here shows that Costa Mesa violated FEHA by failing to make a
reasonable accommodation for Ohio House, which requested that it be
permi tted to operate within 550 feet of another group home rather than the
minimum 650 feet required by the City’s ordinance. This failure has two
aspects. First, as specified in FEHA’s regulations, Costa Mesa was required
to undertake a good-faith interactive process in response to Ohio House’s
request for reasonable accommodation. Cal. Code Regs. tit. 2, § 12177. This
includes evaluating and implementing a reasonable accommodation if
possible, or affirmatively “identify[ing] if there is another accommodation or
modification that is equally effective.” Id. § 12177(a), (c). It appears that the
City did not make these interactive efforts and the district court did not
consider these requirements when determining there was sufficient evidence
to find the denial of a reasonable accommodation did not violate FEHA. See
ER 2892-97; ER 16.
Second, as relevant here, a requested accommodation may only be
denied if it would constitute an unacceptable “fundamental alteration,”
meaning it would “change the essential nature of the services or operations”
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being offered. Cal. Code Regs. tit. 2, § 12179(b)(1), (e). And, a reasonable
accommodation request cannot be denied based on “fears or prejudices”
about the disability, or because it “might possibly become an undue burden
if extended to multiple other individuals who might request accommodations
or modifications.” Id. § 12179(f).
“Fundamental alteration.” The court found that the jury had
sufficient evidence to determine that a waiver of the 650-foot separation
requirement constituted a “fundamental alteration” of the City’s zoning code
creating residential neighborhoods. This was based on City testimony that a
“cluster of group homes increases the number of adults living in an area,
which increase[s] parking and traffic, [and] leads to increased related
complaints,” such that “[t]he City wanted to reduce these effects to prevent
the ‘institutionalization’ of residential neighborhoods and the degradation of
the residential nature.” ER 16.
Assuming only for purposes of argument that the City’s goal was
legitimate, the court’s order did not discuss any sufficient evidence showing
that a deviation from the 650-foot separation rule would lead to these
negative results, let alone any sufficient evidence that the 100-foot departure
from the rule that Ohio House requested would do so. Indeed, Ohio House
had already been located 550 feet from another group home, and there was
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no sufficient evidence discussed that this had created an institutionalized
setting.
Moreover, the City’s concerns are a far cry from what are properly
considered fundamental alterations. FEHA and its regulations specifically
anticipate that cities will need to adjust their zoning codes to reasonably
accommodate disability-related housing needs, Gov’t Code § 12927(c)(1);
Cal. Code Regs tit. 2, § 12180(c)(6), undercutting the City’s argument that
the claimed speculative effects of increased density alleged here could be
considered fundamental alterations. Here, the allegations of increased
parking needs, van traffic, and loading and unloading passengers,10 which
could come from any home with several residents—such as a multi-
generational family living together, a home that receives a large number of
deliveries or visitors, or families with regular carpools—is unlikely to rise to
the level of changing the “essential nature” of a residentially-zoned
neighborhood. Because these effects can be caused by many different
sources, they should be addressed by generally applicable parking
regulations, traffic calming measures, or occupancy standards instead of
10 The district court acknowledged that Ohio House did not receive
any specific noise, parking, or smoking complaints in the past. ER 16.
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singling out group homes with discriminatory and constraining regulations.
See, e.g., Adamson, 27 Cal. 3d at 133; Group Home Technical Advisory at
30-31.
The City’s reaction to its claimed concerns also did not consider its
obligations under state law to affirmatively furthering fair housing. These
obligations include, among other things, protecting individuals with
disabilities’ right to housing of their choice, and the housing they find most
suitable for their disability-related needs, while removing constraints on
their ability to obtain this housing. See, e.g., Gov’t Code §§ 8899.50;
65583(a)(5), (c)(3), (c)(5), (c)(10)(A). The accommodation Ohio House has
requested may be consistent with, and indeed required by, state housing law.
The district court’s failure to consider the requested accommodation in light
of the City’s obligations under state law was error.
“Fears or prejudices.” To justify denying the accommodation, Costa
Mesa argued that having a greater number of persons per household, like
Ohio House does, strained the City’s infrastructure, and could create
“institutionalization” of zoned residential neighborhoods. ER 16. But this
argument, rather than justifying denying Ohio House’s accommodation
request, appears to reflect a concern that other group homes might seek a
similar accommodation in the future. It thus appears to rest on “fears or
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prejudices” that multiple group homes might seek reasonable
accommodations to locate or remain in Costa Mesa, and that group home
residents somehow cause uniquely problematic traffic, noise, or activity (as
the City allows similar traffic, noise, and activity from other homes with
several residents). That is precisely the kind of prejudicial reasoning FEHA
rejects. Cf. Oconomowoc, 300 F.3d at 786 (noting that FHA rejects city
actions based on “blanket stereotypes about disabled persons rather than
particularized concerns about individual residents . . . the use of stereotypes
and ignorance, and . . . [g]eneralized perceptions about disabilities and
unfounded speculations about threats to safety . . . as grounds to justify
exclusion”) (internal citations and quotation marks omitted).
III.RESTRICTIVE ZONING CODES LIKE COSTA MESA’S ARE
CONTRARY TO PUBLIC POLICY AND HAVE A NEGATIVE IMPACT
ON HOUSING FOR CALIFORNIANS WITH DISABILITIES
As discussed above, group homes are an essential resource for people
with disabilities. Group homes that provide sober living environments play a
key role in substance abuse recovery care.11 They are “alcohol and drug free
living environments that offer peer support for recovery outside the context
11 U.S. Dep’t of Health & Human Servs., Facing Addiction in
America: The Surgeon General’s Report on Alcohol, Drugs, and Health
(2016) at 4-4, https://tinyurl.com/ssnem8v3.
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26
of treatment.”12 According to the Substance Abuse and Mental Health
Services Administration of the U.S. Department of Health and Human
Services, community support “is a critical aspect of achieving and
maintaining recovery,” and thus, recovery residences “are uniquely qualified
to assist individuals in all phases of recovery, especially those in early
recovery, by furnishing social capital and recovery supports.”13 Research
demonstrates that residents show improvement in a variety of areas,
including drug and alcohol use, employment, psychiatric symptoms, and
arrests.14 Group homes thus enable people with disabilities to live in the
community while still receiving the needed support for continued recovery.
As discussed above, California law recognizes the important benefits
group homes provide to people with disabilities by establishing certain
protections for them—protections that ordinances like Costa Mesa’s fail to
12 Polcin et al., What Did We Learn from Our Study on Sober Living
Houses and Where Do We Go from Here? J. of Psychoactive Drugs (Dec.
2010) 42(4):425-433, at 2, https://tinyurl.com/yzcxmb3r.
13 Substance Abuse and Mental Health Servs. Admin., Recovery
Housing: Best Practices and Suggested Guidelines (2018) at 3,
https://tinyurl.com/mr4c4arz.
14 Korcha et al., Sober Living Houses: Research in Northern and
Southern California, Addiction Science & Clinical Practice (2015) 10
(Suppl. 1):A30, https://tinyurl.com/rh8prtbw.
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recognize. In addition to the problems inherent in the City’s overall
permitting requirements, the Group Home Technical Advisory explains how
Costa Mesa’s other, more specific group home regulations conflict with its
duties to avoid discriminating against such housing and to affirmatively
promote and protect it. These regulations include, for example, the City’s
650-foot spacing requirement, definition of single housekeeping units, and
special occupancy standards for group homes.15 Discriminatory restrictions
like these and others in Costa Mesa’s ordinances “can block new group
homes from opening, force existing ones to close, and impose costs, legal
fees, and administrative burdens that make it difficult for group homes to
operate.”16
These problems are not hypothetical. Restrictive zoning codes have
had—and continue to have—a negative impact on the availability of this
important type of housing opportunity for people with disabilities.17 As an
initial matter, recent research demonstrates that group homes for those
recovering from addiction are not highly concentrated in Orange County,
15 See generally Group Home Technical Advisory at 23-36.
16 Id. at 1.
17 Group Home Technical Advisory at 7.
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relative to the rest of California or the nation as a whole.18 In fact, California
is behind many other states in the number of such group homes per capita,
despite having a higher age-adjusted alcohol/drug mortality rate than many
other states.19 Moreover, the last two years have seen a large percentage
increase in the number of such deaths in California, indicating a likely
increasing need for group homes in the State at a time when there are fewer
homes per capita than many other states.20
Restrictive zoning codes can limit this number even further, as is
evident from Costa Mesa’s own data. Before Costa Mesa adopted its group
home ordinances, it estimated there were 94 sober living homes in the City’s
residential zones. Socal Recovery, LLC, 56 F.4th at 806.21 As of 2022, the
City counted only 16 group homes, with at least 68 having closed. Id. at 806
18 Mericle et al., Identifying the Availability of Recovery Housing in
the U.S.: The NSTARR Project, Drug and Alcohol Dependence 230 (2022),
at 6-8, figs. 1, 2, tbl. 1, https://tinyurl.com/y48mpfze.
19 Id. at tbl. 1.
20 Fusion Ctr., Data Brief: 2020 and 2021 Increases in Deaths in
California, Cal. Dep’t of Pub. Health (July 1, 2022), at 8, 9, tbl. 2,
https://tinyurl.com/4bbcb5d4.
21 The SoCal Recovery decision cites data from the city website: City
Approved Sober Living/Group Homes, https://tinyurl.com/yukycasy. That
decision did not consider the validity of the City’s ordinances.
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& nn.6-7. The City’s closure list now includes 83 closed facilities, indicating
that an additional 15 facilities may have closed.22
The expert evidence in this case confirms this alarming reduction in
available housing for people with disabilities. Professor Brian Connolly
concluded that the City’s ordinances restricted the availability of group
homes; some were even forced to close, displacing people with disabilities.
See Connolly Expert Rep. at 53 (Feb. 14, 2022), ECF No. 249-3. His report
also discusses how the closure of such facilities, as with other areas of the
housing market, presumptively increases the cost of housing in remaining
group homes. Id. at 54.
In short, restrictive zoning codes, such as those at issue here in Costa
Mesa, constrain housing opportunities and choice for people with
disabilities. This expressly contravenes FEHA, the State’s housing and
planning laws, the mission of CRD and HCD, and the policy of the State of
California.
CONCLUSION
The judgment of the district court should be reversed.
22 Group Homes/Sober Living Information and Application, Costa
Mesa, https://tinyurl.com/4wjhb6ky (providing information on “Operators
that have closed”). The list can be found at https://tinyurl.com/2absudwh.
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Dated: June 29, 2023 Respectfully submitted,
ROB BONTA
Attorney General of California
MICHAEL L. NEWMAN
DANIEL A. OLIVAS
Senior Assistant Attorneys General
JAMES F. ZAHRADKA II
CHRISTINA BULL ARNDT
Supervising Deputy Attorneys General
KENNETH J. SUGARMAN
Deputy Attorney General
/s/ Lisa C. Ehrlich
LISA C. EHRLICH
Deputy Attorney General
Attorneys for Civil Rights Department and
Department of Housing and Community
Development
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31
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Form 8. Certificate of Compliance for Briefs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf
9th Cir. Case Number(s) 22-56181
I am the attorney or self-represented party.
This brief contains 5,897 words, including 0 words manually counted in any
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size and typeface comply with FRAP 32(a)(5) and (6).
I certify that this brief (select only one):
[ ] complies with the word limit of Cir. R. 32-1.
[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
[X]is an amicus brief and complies with the word limit of FRAP 29(a)(5), Cir. R.
29-2(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.
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only one):
[ ] it is a joint brief submitted by separately represented parties.
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[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
Signature /s/ Lisa C. Ehrlich Date June 29, 2023
(use “s/[typed name]” to sign electronically-filed documents)
Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 38 of 39
CERTIFICATE OF SERVICE
I hereby certify that, on this 29th day of June 2023, I electronically
filed the foregoing BRIEF OF AMICI CURIAE THE CALIFORNIA CIVIL
RIGHTS DEPARTMENT AND THE CALIFORNIA DEPARTMENT OF
HOUSING AND COMMUNITY DEVELOPMENT IN SUPPORT OF
APPELLANT AND REVERSAL with the Clerk of the Court of the United States
Court of Appeals for the Ninth Circuit by using the CM/ECF system. I further
certify that all participants in the case are registered CM/ECF users and that service
will be accomplished by the CM/ECF system.
/s/Lisa Ehrlich
Lisa Ehrlich
Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 39 of 39
EXHIBIT 4
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
November 29, 2023
Lori Ann Farrell Harrison, City Manager
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Dear Lori Ann Farrell Harrison:
RE: Group Home Ordinances – Letter of Technical Assistance
In the attached May 9, 2023, findings letter, the California Department of Housing and
Community Development (HCD) offered to provide additional technical assistance
regarding, among other things, implementation of Costa Mesa’s (City) 6th cycle housing
element programs to review its group home and related policies. This letter provides
that technical assistance for the City’s review of its group home ordinances, including
Ordinance Nos. 14-13, 15-11, and 17-05, which amended Title 13 of the City’s
Municipal Code (MC 13), as well as related City policies, such as its reasonable
accommodations procedures.
HCD has reviewed the City’s group home ordinances and related policies under its
authority pursuant to Government Code section 65585, which includes authority to
review cities’ compliance with the Land Use Discrimination Law (Gov. Code, § 65008),
Affirmatively Furthering Fair Housing (AFFH) Law (Gov. Code, §§ 8899.50, 65583), and
State Housing Element Law (Gov. Code, § 65580 et seq.). HCD finds that the City’s
group home ordinances and related policies violate Government Code sections 65008,
65583, and 8899.50 by failing to meet the City’s obligations to affirmatively further,
protect, and remove constraints on housing for persons with disabilities, and also by
discriminating against this housing.
To comply with state law, the City must, among other things, immediately stop enforcing
its group home ordinances, repeal them, and revise its reasonable accommodations
policies. These actions are also necessary to timely and effectively implement the
programs in the 6th cycle housing element that the City adopted on November 15, 2022,
which are required for the City’s housing element to substantially comply with State
Housing Element Law. These include Program 2J (Transitional and Supportive Housing),
2N (Reasonable Accommodation), Program 2O (Definition of Single Housekeeping Unit),
Program 2P (Group Homes), and 4A (Fair Housing).
Lori Ann Farrell Harrison, City Manager
Page 2
Definitions
Various laws use the term “group homes” to refer to different types of housing for
different populations. For the purposes of state fair housing and planning and zoning
laws, the following terms refer to various types of residences in which unrelated persons
share the residence:
• Shared Living Residences—any housing shared by unrelated persons,
including, for example, group homes, recovery residences, some community care
residential facilities, some supportive and transitional housing, emergency
shelters, boardinghouses, and dormitories.
• Group Homes—housing shared by unrelated persons with disabilities that
provide peer and other support for their residents’ disability-related needs and in
which residents share cooking, dining, and living areas, and may, in some group
homes, participate in cooking, housekeeping, and other communal living
activities and that do not provide services that require licenses under state law.
• Licensed Facilities—shared living residences that provide services that require
licenses under state law.
• Recovery Residences or Sober Living Homes—group homes for persons
recovering from alcoholism or drug addiction in which the residents mutually
support each other's recovery and sobriety and that do not require state licenses
because they do not provide alcoholism or drug addiction recovery and treatment
services.1
• Alcohol or Other Drug (AOD) Facilities—residential facilities that must obtain
state licenses because they provide alcoholism or drug addiction recovery and
treatment services.
1 Individuals recovering from alcoholism or addiction are recognized as people with
disabilities (see Gov. Code, § 12926, subd. (j)), and “sober living homes and other
dwellings intended for occupancy by persons recovering from alcoholism and drug
addiction are protected from illegal discrimination against the disabled.” SoCal
Recovery, LLC v. City of Costa Mesa (“SoCal Recovery”) (9th Cir. 2023) 56 F.4th 802,
814.
Lori Ann Farrell Harrison, City Manager
Page 3
Statutory Background
Land Use Discrimination Law
California’s Planning and Zoning Law (Gov. Code, § 65000 et seq.) prohibits jurisdictions
from engaging in discriminatory land use and planning activities. Specifically, Government
Code section 65008, subdivision (a)(1), deems any action taken by a city to be null and
void if it denies an individual or group of individuals the enjoyment of residence,
landownership, tenancy, or any other land use in the state due to illegal discrimination.
Section 65008 prohibits discrimination based on any characteristic, including disabilities,
protected by other state or federal laws, while adding its own prohibitions of discrimination
against individuals or households who have very low, low, moderate, or middle incomes.2
The law further recites multiple categories of actions that are determined to be
discriminatory, including enactment or administration of ordinances that prohibit or
discriminate based on a protected characteristic 3 and imposition of requirements on a
residential use for persons with protected characteristics that are not generally imposed
upon other residential uses.4
AFFH Law
Government Code section 8899.50 requires all California public agencies, including
cities, “to administer their programs and activities relating to housing and community
development in a manner to affirmatively further fair housing, and take no action that is
materially inconsistent with [this] obligation . . . .”5 AFFH means:
taking meaningful actions, in addition to combating discrimination, that
overcome patterns of segregation and foster inclusive communities free from
barriers that restrict access to opportunity based on protected
characteristics. Specifically, affirmatively furthering fair housing means taking
meaningful actions that, taken together, address significant disparities in
housing needs and in access to opportunity, replacing segregated living
patterns with truly integrated and balanced living patterns, transforming
racially and ethnically concentrated areas of poverty into areas of
opportunity, and fostering and maintaining compliance with civil rights and
fair housing laws.6
Moreover, the “duty to affirmatively further fair housing extends to all of a public
agency’s activities and programs relating to housing and community development.”7
2 Gov. Code, § 65008, subds. (a)(1)(A), (b)(1)(B)-(C), (2)(B), (3).
3 Id. at subd. (b)(1)(B).
4 Id. at subd. (d)(2)(A).
5 Gov. Code, § 8899.50, subds. (a)(2)(B), (b)(1), (2).
6 Id. at subd. (a)(1).
7 Id.
Lori Ann Farrell Harrison, City Manager
Page 4
Housing Element Law
In addition to the general AFFH requirements in Government Code section 8899.50,
State Housing Element Law includes more specific AFFH requirements for cities.
Government Code section 65583 requires cities to thoroughly analyze fair housing
issues related to housing for people with disabilities and set forth a program of actions
that protect and promote such housing. Through their housing elements, cities must
“remove governmental constraints that hinder . . . meeting the need for housing for
persons with disabilities,” which requires “remov[ing] constraints to, and provid[ing]
reasonable accommodations for housing designed for, intended for occupancy by, or
with supportive services for, persons with disabilities.”8 Section 65583 also requires
cities to “promote and affirmatively further fair housing opportunities and promote
housing throughout the community or communities all persons regardless of . . .
disability” or “other protected characteristics.”9 And cities’ housing elements must
include a fair housing assessment with specific goals, implementation strategies, and
“metrics and milestones” for evaluating results.10 In complying with these AFFH duties,
cities are required to analyze data and set measurable objectives and milestones.11
Resource Materials
In revising its policies, amending its ordinances, and implementing its housing element
programs, the City should consider HCD’s Group Home Technical Advisory (Group
Home TA)12 and its AFFH Guidance Memorandum (AFFH Memo).13 The City should
also consider, among other things, the analysis in the amicus brief that HCD and CRD
filed in the pending appeal in The Ohio House, LLC v. City of Costa Mesa, 9th Cir. Case
No. 22-56181, Docket No. 25-2 (Amicus Brief). The guidance documents and Amicus
Brief discuss relevant statutes, regulations, and case law, as well as HCD’s and other
government agencies’ earlier guidance documents, academic papers, and demographic
and statistical analyses.
8 Gov. Code, § 65583, subds. (a)(6), (c)(3).
9 Id. at subd. (c)(5).
10 Id. at subd. (c)(10)(A)(iv).
11 See, e.g., Gov. Code, § 65583, subds. (a)(5), (a)(7), (b)(1), (c)(10)(A)(ii).
12 Available at https://www.hcd.ca.gov/sites/default/files/docs/planning-and-
community/group-home-technical-advisory-2022.pdf.
13 Available at https://www.hcd.ca.gov/community-
development/affh/docs/affh_document_final_4-27-2021.pdf.
Lori Ann Farrell Harrison, City Manager
Page 5
Findings
HCD’s findings include, but are not necessarily limited to, those described below.
Permitting Requirements
Ordinance Nos. 14-13, 15-11, and 17-05 establish permitting requirements for group
homes.
• MC 13-311(a) requires a special use permit for unpermitted group homes of six
or fewer occupants located in R1 (single-family) zones and prohibits group
homes with seven or more occupants in these zones.
• MC Title 9, Chapter II, Article 23, 9-372 requires group homes of six or less to
apply for an operator's permit, regardless of licensure status.
• MC 13-322 requires a Conditional Use Permit (CUP) for group homes of six or
less in R2-MD, R2-HD and R3 residential zones and the PDR-LD, PDR-MD,
PDR-HD, PDR-NCM, PDC, and PDI (Planned Development Zones) Zones.
• MC 13-323 requires a CUP for group homes in the R2-MD, R2-HD and R3
residential zones and the PDR-LD, PDR-MD, PDR-HD, PDR-NCM, PDC, and
PDI (Planned Development Zones) with seven or more occupants.
The City’s permitting requirements for group homes and its application and enforcement
of these requirements violate Government Code sections 65008, 65583, and 8899.50
by, among other things, discriminating against housing for persons with disabilities,
constraining and failing to promote this housing, and restricting the fair housing choices
of persons with disabilities (their right to housing of their choice and the housing they
find most suitable for their disability-related needs).
The ordinances do not impose similar restrictions on other dwellings located in the
zones listed above. The discriminatory effects and constraints these permitting
requirements impose on group homes are evident through, among other things, the
City’s own data showing how severely the permitting requirements have curtailed group
homes in Costa Mesa. And there are considerable other discriminatory effects,
including, and among other things, the costs and burdens imposed on group homes, the
displacement of persons with disabilities from housing of their choice and the
disruptions of their lives, and the City’s efforts to deter new group homes from opening
in Costa Mesa.14
14 See, e.g., Amicus Brief at pp. 27-28; SoCal Recovery, supra, 56 F.4th at p. 806
(finding that Costa Mesa engaged in “an explicit effort to reduce the number of sober
living homes operating within the City.”).
Lori Ann Farrell Harrison, City Manager
Page 6
Furthermore, the City should not continue attempting to justify its group home
restrictions by comparing them to its treatment of boardinghouses. Group homes are
designed to provide communal living environments with peer and other support for their
occupants’ disability-related needs and to help integrate their residents into local
communities. Boardinghouses do not serve these same goals. Government Code
sections 65008, 65882, and 8899.50 also impose specific and unique duties on cities to
affirmatively promote and protect housing for persons with disabilities that do not
similarly apply to all boardinghouses.
The overall problems with the City’s permitting system require the City to immediately
stop enforcing its group home ordinances and repeal them. To provide additional
guidance, this letter discusses below further examples of how specific provisions in
these ordinances conflict with the City’s duties under Government Code sections 65008,
65583, and 8899.50.
Definition of Single Housekeeping Unit
MC 13-06 defines a single housekeeping unit as follows:
• Single housekeeping unit. The occupants of a dwelling unit have established ties
and familiarity with each other, jointly use common areas, interact with each
other, share meals, household activities, and expenses and responsibilities;
membership in the single housekeeping unit is fairly stable as opposed to
transient, members have some control over who becomes a member of the
household, and the residential activities of the household are conducted on a
nonprofit basis. There is a rebuttable presumption that integral facilities do not
constitute single housekeeping units. Additional indicia that a household is not
operating as a single housekeeping unit include, but are not limited to: the
occupants do not share a lease agreement or ownership of the property;
members of the household have separate, private entrances from other
members; members of the household have locks on their bedroom doors;
members of the household have separate food storage facilities, such as
separate refrigerators.
HCD encourages the City to review pages 24-25 of the HCD Group Home Technical
Advisory for policies to avoid when creating a definition of a single housekeeping unit.
These problematic policies include requiring all residents to share a common lease or
deed, excluding for-profit group homes and overly scrutinizing living arrangements (e.g.,
not allowing for locks on rooms or having separate entrances).
Lori Ann Farrell Harrison, City Manager
Page 7
Lack of Grandfathering
Typically, when a zoning code changes, preexisting, nonconforming uses are
“grandfathered” in and allowed to continue operating under the requirements that were
in place before the amendments.15 Costa Mesa’s zoning code follows this well-
established practice by allowing preexisting, nonconforming residential uses to continue
operating unless they are abandoned, the dwellings they are in are declared physically
unsafe, or the owner proposes structural alterations. (MC 13-203(b), 13-204.) But the
City departs both from general grandfathering practices and its own grandfathering code
provisions by requiring preexisting group homes to apply for permits in the same fashion
as new ones to remain operational. (MC 13-311, 13-322, and 13-323.) This imposes
discriminatory and constraining conditions on preexisting group homes, while creating
displacement impacts that AFFH duties and State Housing Element Law require the
City to consider and avoid.16 The City should apply its generally applicable
grandfathering provisions to preexisting group homes, subject to reasonable
accommodations requirements.
Occupancy Limits
The City sets special occupancy limits on group homes that prohibit group homes of
seven or more occupants in R-1 single family zones, require group homes with seven or
more occupants to obtain permits to operate in other zones, and require group homes
with six or fewer occupants to obtain permits to operate in any residential zone. (MC 9-
372, 13-311)(a), 13-322, 13-323.) This is another example of the City imposing
discriminatory and constraining restrictions on group homes. Concerns about
overcrowding should be addressed through applying the generally applicable
occupancy limits that apply to all residences instead of singling out specific types of
housing based on occupants’ disabilities.17
Costa Mesa’s ordinances appear to be based on a faulty application of Health and
Safety Code statutes that allow local governments to subject licensed group homes with
more than six residents to conditional use or other discretionary approval processes but
require local governments to treat many types of licensed group homes with six or fewer
residents the same as single-family homes and prohibit requiring these small, licensed
group homes to obtain conditional use permits or other special approvals to locate in
single-family zones.18 The City, however, cannot justify its restrictions on group homes
15 See, e.g., Edmonds v. Los Angeles County (1953) 40 Cal.2d 642, 651 (“The rights of
users of property as those rights existed at the time of the adoption of a zoning
ordinance are well recognized and have always been protected.”).
16 Gov. Code, § 65583, subds. (c)(10)(A)(ii), (v).
17 See Uniform Housing Code, § 503.2; see also City of Santa Barbara v. Adamson
(1980) 27 Cal.3d 123, 133.
18 See, e.g., Health & Saf. Code, §§ 1566.3, 1569.85, 11834.23.
Lori Ann Farrell Harrison, City Manager
Page 8
through statutes designed to protect small licensed facilities, which provide higher levels
of support and care that require state licenses.19 These statutes specifically apply to
licensed facilities, not to unlicensed group homes. In effect, the City is inappropriately
transforming state laws designed to prevent local constraints on small, licensed facilities
into constraints on group homes that do not provide services requiring state licenses.
Moreover, the City is imposing more restrictions on group homes with six or fewer
residents than state law allows it to impose on licensed facilities with similar numbers of
residents. To avoid imposing overly costly and burdensome constraints on group
homes, the best practice is to apply the same general building, fire, and other health
and safety codes that apply to other residences, subject to state health and safety code
provisions specific to certain types of licensed facilities and to reasonable
accommodations requirements.20
Separation Requirement
MC 13-322, 13-323, and 13-324 require 650 feet of separation between group homes,
sober living homes, or state-licensed drug and alcohol treatment facilities, new and
existing.
These spacing requirements have a particularly severe impact on group homes,
severely limiting where they can locate, causing group homes to close, and preventing
others from opening. Yet the City has not shown that these spacing requirements are
necessary or that there are health, safety, or similar justifications for the spacing
requirements, or that if these were actual issues, that the City could not address them
through less restrictive and discriminatory policies.
Pages 27-29 of the Group Home TA provides additional guidance illustrating why the
City’s spacing requirements conflict with its duties under state housing law (e.g., Gov.
Code, §§ 8899.50, 65008, 65583, subds. (c), (1), (5), (10)), as does the Amicus Brief.
Vehicle and Parking Requirements
The City imposes special vehicle and parking requirements on group homes. MC 13-
311(a)(5) states that each dwelling resident is limited to one vehicle that must be used
as the resident’s primary form of transportation. MC 13-311(a)(5) requires each dwelling
resident to park their vehicle on dwelling premises or within 500 feet of the dwelling.
Concerns about parking and traffic should be addressed through generally applicable
rules instead of restrictions that target housing for persons with disabilities.21
19 See Group Home TA at pp. 25-26.
20 See, e.g., Health & Saf. Code, § 13113 (requiring sprinkler systems in certain
licensed facilities).
21 See Adamson, supra, 27 Cal.3d at 133; Group Home TA at p 31.
Lori Ann Farrell Harrison, City Manager
Page 9
Examples of Other Permitting and Operational Requirements
The City imposes the following restrictions on group homes but not on other residences:
• MC 13-311(a)(4) requires a manager to be present during all hours, seven days
a week.
• MC 13-311(a)(14)(vi) requires that the operator must have a good neighbor
policy directing residents “to be considerate of neighbors, including refraining
from engaging in excessively loud, profane or obnoxious behavior that would
unduly interfere with a neighbor’s use and enjoyment of their dwelling unit.”
• MC 13-311(b) requires group homes applying for a permit to provide notice to the
owner of record and all occupants within 500 feet of the group home.
Singling out group homes for restrictions like these can burden group homes with
additional, unjustified costs, while perpetuating fears and stereotypes about persons
with disabilities. Pages 30-33 of the Group Home TA provide additional guidance on
how to avoid these and other restrictions in Costa Mesa’s group home ordinances that
conflict with the City’s duties under Government Code sections 8899.50, 65008, 65583,
subds. (c)(1), (c)(5) and (10), among others.22
Reasonable Accommodations
Failing to make reasonable accommodations to rules or policies, in order to allow
persons with disabilities the opportunity to access housing, is a form of discrimination.23
Making reasonable accommodations is also necessary to fulfill the City’s AFFH duties
and its duties to remove constraints on housing for persons with disabilities.24
The City should review its reasonable accommodation policies in Municipal Code
section 13-200.62, along with its application of these policies, to ensure compliance with
state law.25 For example, the City: (i) must avoid denying requested accommodations
based on fears or prejudicial assumptions about people with disabilities, such as that
group home residents somehow uniquely cause problematic traffic, noise, or activity; (ii)
22 See also Oconomowoc Residential Programs, Inc. v. City of Milwaukee (7th Cir.
2002) 300 F.3d 775, 783 (finding that house manager requirement is discriminatory
because it effectively mandates an “institutional” arrangement that is not “on par with”
housing policies for those who are not disabled); Potomac Group Home Corp. v.
Montgomery County, Md. (D. Md. 1993) 823 F.Supp. 1285, 1296 (finding that notice
requirements discriminate against and stigmatize persons with disabilities).
23 See, e.g., Gov. Code, § 12927, subd. (c)(1).
24 See, e.g., Gov. Code, §§ 8899.50, 65583, subds. (a)(6), (c)(3), (5).
25 See, e.g., Cal. Code Regs., tit. 2, §§ 12176-12185; Group Home TA at pp. 18-20;
Amicus Brief at pp. 21-25.
Lori Ann Farrell Harrison, City Manager
Page 10
may not place the burden on reasonable accommodation applicants to demonstrate that
their requested accommodations would not create undue burdens on the City or
fundamental alterations to its zoning code; (iii) may not require applicants to show that
they could not find any other housing within the city that would meet their disability-
related needs; and (iv) must engage in good faith with reasonable accommodation
requests and avoid delay or burdensome procedural requirements.26
Costa Mesa May Still Address Problems that Might Arise at Individual Group
Homes
The City has resources to legally address problems that might occur at individual group
homes. If group home operators are engaging in activities that constitute public
nuisances; violating generally applicable building, housing, or other health and safety
laws; committing fraud; or engaging in other illegal activities, the City can address these
issues through the same code enforcement and other legal processes it applies to
others who violate municipal codes and other laws. If the City has evidence that a group
home operator is providing services that require a license without obtaining one, it can
contact the state’s Department of Social Services or Department of Health Care
Services, which can initiate investigations and take remedial action if appropriate.27
This may still require considering if reasonable accommodations are appropriate in
some circumstances. And the City should avoid overbroad or discriminatory applications
of nuisance laws, such as those basing civil nuisance actions on 911 calls for
emergency services.28 But if a group home is found to have violated local or state law,
the City may, for example, seek equitable relief that could include more stringent
oversight and other affirmative relief to prevent further violations.
Focusing on individual group homes that are actually causing problems is a better
practice than adopting overly broad, constraining, and unlawful regulations for all group
homes.
26 See, e.g., Cal. Code Regs., tit. 2, §§ 12177-12179; 28. C.F.R. § 35.150(a)(3).
27 See Group Home TA at pp. 33-36, 37.
28 See. e.g., Cal. Code Regs., tit. 2, § 12162, subd. (a); see also California Attorney
General Rob Bonta letter to all Cities and Counties in California re Crime Free Hosing
Policies (Apr. 21, 2023), available at https://oag.ca.gov/system/files/attachments/press-
docs/Crime%20Free%20Housing%20Guidance_4.21.23.pdf.
Lori Ann Farrell Harrison, City Manager
Page 11
Conclusion
Costa Mesa’s ordinances are blocking new group homes from opening, forcing existing
ones to close, and imposing costs, administrative burdens, and fees that make it difficult
for group homes to operate, while displacing persons with disabilities and disrupting
their lives. The City is creating these restrictions and problems in the context of a
shortage of adequate housing for persons with disabilities, which is a particularly acute
issue within California’s broader housing crisis.
HCD has reviewed the City’s group home ordinances and found that they violate
Government Code sections 65008, 65583, and 8899.50. The City must stop enforcing
these ordinances, repeal them, change its reasonable accommodation policies and
practices, and review other zoning practices in light of HCD’s guidance to ensure that
the City is complying with state law. These actions are necessary for the City to comply
with its duties under Government Code sections 65008, 65583, and 8899.50, and are
among the things that the City must do to bring its 6th cycle housing element into
substantial compliance with State Housing Element Law.
For technical assistance regarding the City’s 6th Cycle housing element, please contact
Jose Armando Jauregui at jose.jauregui@hcd.ca.gov. If you have any questions
regarding the content of this letter, please contact Bentley Regehr at
bentley.regehr@hcd.ca.gov.
Sincerely,
David Zisser
Assistant Deputy Director
Local Government Relations and Accountability
Enclosures: Letter from HCD regarding City of Costa Mesa’s 6th Cycle (2021-2029)
Adopted Housing Element (May 9, 2023)
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
May 9, 2023
Lori Ann Farrell Harrison, City Manager
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Dear Lori Ann Farrell Harrison:
RE: City of Costa Mesa’s 6th Cycle (2021-2029) Adopted Housing Element
Thank you for submitting the City of Costa Mesa’s (City) housing element that was
adopted on November 15, 2022 and received for review on March 10, 2023. In addition,
the California Department of Housing and Community Development (HCD) considered
technical modifications from its prior review authorized by Resolution Number 2022-67.
Pursuant to Government Code section 65585, subdivision (h), HCD is reporting the
results of its review. In addition, HCD considered comments from Costa Mesa First
pursuant to Government Code section 65588, subdivision (c).
The adopted housing element meets the statutory requirements of State Housing
Element Law (Gov. Code, § 65580 et seq.). However, the housing element cannot be
found in substantial compliance until the City has completed necessary rezones to
make prior identified sites available and address the shortfall of sites to accommodate
the RHNA pursuant to Assembly Bill 1398 (Chapter 358, Statutes of 2021) as described
below.
Pursuant to Assembly Bill 1398 (Chapter 358, Statutes of 2021), a jurisdiction that failed
to adopt a compliant housing element within one year from the statutory deadline
cannot be found in compliance until rezones to make prior identified sites available or
accommodate a shortfall of sites, pursuant to Government Code section 65583,
subdivision (c) (1) (A) and Government Code section 65583.2, subdivision (c), are
completed. As this year has passed and Programs 3B (Fairview Development Center),
3C (North Costa Mesa Specific Plan), 3D (Urban plans and Overlays), and 3N (Reused
sites) have not been completed, the housing element is out of compliance and will
remain out of compliance until the rezoning has been completed. Once the City
completes the rezone, a copy of the resolution or ordinance should be transmitted to
HCD. HCD will review the documentation and issue correspondence identifying the
updated status of the City’s housing element compliance.
Lori Ann Farrell Harrison, City Manager
Page 2
Additionally, the City must continue timely and effective implementation of all programs
including but not limited to the following:
• Program 2A (Inclusionary Housing Ordinance)
• Program 2B (Affordable Housing Development)
• Program 2I (State Density Bonus Incentives)
• Program 2J (Transitional and Supportive Housing)
• Program 2M (Parking Standards for Residential Development)
• Program 2N (Reasonable Accommodation)
• Program 2O (Definition of Single Housekeeping Unit)
• Program 2P (Group Homes): Please note, HCD may follow up with additional
technical assistance. Please see HCD’s Group Home Technical Advisory at
https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/group-
home-technical-advisory-2022.pdf.
• Program 3B (Fairview Development Center)
• Program 3G (City-wide Vote Requirements)
• Program 3R (Development of Large Sites)
• Program 4A (Fair Housing)
The City must monitor and report on the results of these and other programs through
the annual progress report, required pursuant to Government Code section 65400.
Please be aware, Government Code section 65585, subdivision (i), grants HCD
authority to review any action or failure to act by a local government that it determines is
inconsistent with an adopted housing element or State Housing Element Law. This
includes failure to implement program actions included in the housing element. HCD
may revoke housing element compliance if the local government’s actions do not
comply with state law.
Several federal, state, and regional funding programs consider housing element
compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill
(SB) 1 Sustainable Communities grant, the Strategic Growth Council and HCD’s
Affordable Housing and Sustainable Communities programs, and HCD’s Permanent
Local Housing Allocation consider housing element compliance and/or annual reporting
requirements pursuant to Government Code section 65400. With a compliant housing
element, the City will meet housing element requirements for these and other funding
sources.
For your information, some general plan element updates are triggered by housing
element adoption. HCD reminds the City to consider timing provisions and welcomes
the opportunity to provide assistance. For information, please see the Technical
Advisories issued by the Governor’s Office of Planning and Research at:
https://www.opr.ca.gov/planning/general-plan/guidelines.html.
Lori Ann Farrell Harrison, City Manager
Page 3
HCD appreciates the dedication and cooperation of the City’s housing element team
provided during the review and update. HCD particularly applauds the efforts of
Jennifer Le and Scott Drapkin whose collaboration, communication, expertise and
public service is truly commendable. HCD wishes the City success in implementing its
housing element and looks forward to following its progress through the General Plan
annual progress reports pursuant to Government Code section 65400. If you have any
questions or need additional technical assistance, please contact Jose Armando
Jauregui of our staff, at Jose.jauregui@hcd.ca.gov.
Sincerely,
Paul McDougall
Senior Program Manager
Exhibit 5
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (“Agreement”) is entered into as of this
24th day of October, 2025 (“Effective Date”), by and among, the Parties listed below (together
with their respective successors, assigns, heirs and/or subrogees, individually, “Party” or,
collectively, “Parties”).
PARTIES
The parties (“Parties”) to this Agreement, collectively and together with their successors
and assigns are as follows:
1. Plaintiff and Counter-Defendant INSIGHT PSYCHOLOGY AND ADDICTION,
INC, a California Corporation (“Insight”);
2. Plaintiff JANE DOE, an individual (“Ms. Doe”);
3. Defendant and Counter-Plaintiff CITY OF COSTA MESA, a general law
municipal corporation (“City” or “Costa Mesa”);
4. Counter-Defendants MARY HELEN BEATIFICATO, an individual (“Ms.
Beatificato”) and GERALD GROSSO, an individual (“Dr. Grosso”).
RECITALS
1. For multiple years, Insight provided supportive housing for adults with mental
health and cognitive disabilities, such as Ms. Doe, at 2641Santa Ana Avenue in the City of Costa
Mesa (the “Property”) in one of the City’s multifamily zones (R2-MD).
2. Beginning in 2015, City adopted a series of zoning ordinances, including but not
limited to Ordinance Nos. 15-11, 15-13, 17-05, and 17-06 (collectively, the “Group Home
Regulations”), which among other things, require group homes in the City’s multifamily zones to
obtain a conditional use permit and operator’s permit.
3. On March 12, 2020, Insight filed a complaint in the United States District Court for
the Central District of California against the City, Case No. 8:20−cv−00504−MEMF−JDE (the
“Action”), based on allegations that the City’s adoption, implementation, and enforcement of its
regulations for group homes violate State and Federal fair housing and antidiscrimination laws,
including without limitation the federal Fair Housing Act, the Americans with Disabilities Act,
Section 504 of the Rehabilitation Act, California’s Fair Employment and Housing Act, and Section
11135 of the California Government Code (the “Claims”). On August 7, 2020, Ms. Doe joined the
Action as a Plaintiff.
4. On October 30, 2020, the City filed counterclaims against Insight, Ms. Beatificato,
and Dr. Grosso, which were later narrowed to a nuisance counterclaim against Insight, Ms.
Beatificato, and Dr. Grosso for continuing to provide supportive housing without a conditional use
permit and operator’s permit after the City had denied Insight’s applications for a conditional use
permit and operator’s permit (“Counterclaim”). During the pendency of this case, Insight stopped
providing its housing on the Property.
5. The Parties understand and agree that the Parties dispute liability, that litigation is
expensive, and that this Agreement is a compromise and shall not be construed as an admission of
liability at any time or for any purpose. Without any admission of liability or concession of the
other Party’s position, the Parties want to resolve all claims in this Agreement amicably. The
Parties have agreed to the material terms in this Agreement and now seek to memorialize their
settlement as set forth below.
6. The Parties do not admit, and expressly deny, violation of any federal, state or local
law, and deny any wrongdoing or liability whatsoever.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, and in further consideration of the promises exchanged herein, the
Parties agree as follows:
1. City’s Obligations
a. Settlement Payment. The City shall pay Insight and Ms. Doe the amount
of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) (the
“Settlement Payment”) for their attorneys’ fees, payable within fifteen (15)
business days of the Effective Date. Payment shall be comprised of readily
available funds made payable to Rutan and Tucker Client Trust Account.
The Settlement Payment shall remain in the Rutan and Tucker Client Trust
Account until it is distributed to Insight and Ms. Doe per separate written
agreement.
b. Amendment of Group Home Regulations. The City shall implement
Program 2N of the City’s 6th Cycle 2021-2029 Housing Element Update
(Revised March 1, 2023) by June 30, 2026. At the request of the City,
Disability Rights California and/or the Law Office of Autumn Elliott may
review and comment on revisions to the City’s Reasonable Accommodation
process. In particular, before the revision required under Program 2N is
submitted to the Planning Commission or City Council for review,
recommendation, or adoption, City staff are encouraged (but not required)
to: (a) provide a draft of that revision to Disability Rights California and the
Law Office of Autumn Elliott; (b) provide them with a reasonable period to
comment on and respond to the draft revision; and (c) to discuss any
comments with Disability Rights California or Elliott prior to submitting
any proposed recommendation to the Planning Commission.
2. Insight and Doe’s Obligations
a. Distribution of Settlement Payment. Concurrently herewith, Insight and
Ms. Doe shall mutually agree in writing on the distribution of the Settlement
Payment between Insight and Ms. Doe.
3. Notifying Court of Settlement. Upon execution of this Agreement, the Parties
shall immediately file a Joint Notice advising the Court that the case has been settled, and the
Parties shall withdraw any and all pending motions and requests, including requests for sanctions.
4. Dismissal of Plaintiffs’ Claims and City’s Counterclaim. Within fifteen
(15) business days of the Effective Date, the Parties shall file a stipulation of dismissal pursuant to
Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure requesting dismissal with prejudice
of the Claims filed by Insight and Ms. Doe and the Counterclaim filed by the City in the Action.
5. Settlement; Mutual Releases. Subject to the terms of this Agreement, the Parties
hereby mutually waive, release and forever discharge any and all claims against each other arising
from the Action and the facts and circumstances described in the Action, including Plaintiffs’
Claims and the City’s Counterclaim; and, the release contained herein includes a release of any
and all disputes and/or claims related to the allegations of the Claims or the Counterclaim that
were, or could have been, asserted in the Action, related to the facts of the Action (collectively the
foregoing are the referred to herein as the “Released Claims.”)
6. Waiver of California Civil Code Section 1542.
The Parties understand and agree that the releases provided herein extend to all of the
Released Claims, whether known or unknown, suspected or unsuspected. With respect to the
Released Claims, the Parties expressly waive and relinquish any and all rights they may have under
California Civil Code Section 1542, which provides as follows:
“§ 1542. (General Release — Claims Extinguished.) A general
release does not extend to claims that the creditor or releasing
party does not know or suspect to exist in his or her favor at the
time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the
debtor or released party.”
____ Insight ____ Ms. Doe ____ Ms. Beatificato
____ Dr. Grosso ____ City
The Parties expressly waive and release any rights and benefits which they have or may have under
any similar law or rule of any other jurisdiction and pertaining to the matters released herein. It is
the Parties’ intention through this Agreement and with the advice of counsel that they shall fully,
finally and forever settle and release the Released Claims as set forth above. In furtherance of
such intention, the release herein given shall be and remain in effect as a full and complete release
of such matters, notwithstanding the discovery of any additional claims or facts relating thereto.
2. Insight and Doe’s Obligations
a. Distribution of Settlement Payment. Concurrently herewith, Insight and
Ms. Doe shall mutually agree in writing on the distribution of the Settlement
Payment between Insight and Ms. Doe.
3. Notifying Court of Settlement. Upon execution of this Agreement, the Parties
shall immediately file a Joint Notice advising the Court that the case has been settled, and the
Parties shall withdraw any and all pending motions and requests, including requests for sanctions.
4. Dismissal of Plaintiffs’ Claims and City’s Counterclaim . Within fifteen
(15) business days of the Effective Date, the Parties shall file a stipulation of dismissal pursuant to
Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure requesting dismissal with prejudice
of the Claims filed by Insight and Ms. Doe and the Counterclaim filed by the City in the Action.
5. Settlement; Mutual Releases. Subject to the terms of this Agreement, the Parties
hereby mutually waive, release and forever discharge any and all claims against each other arising
from the Action and the facts and circumstances described in the Action, including Plaintiffs’
Claims and the City’s Counterclaim; and, the release contained herein includes a release of any
and all disputes and/or claims related to the allegations of the Claims or the Counterclaim that
were, or could have been, asserted in the Action, related to the facts of the Action (collectively the
foregoing are the referred to herein as the “Released Claims.”)
6. Waiver of California Civil Code Section 1542.
The Parties understand and agree that the releases provided herein extend to all of the
Released Claims, whether known or unknown, suspected or unsuspected. With respect to the
Released Claims, the Parties expressly waive and relinquish any and all rights they may have under
California Civil Code Section 1542, which provides as follows:
“§ 1542. (General Release — Claims Extinguished.) A general
release does not extend to claims that the creditor or releasing
party does not know or suspect to exist in his or her favor at the
time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the
debtor or released party.”
____ Insight ____ Ms. Doe ____ Ms. Beatificato
____ Dr. Grosso ____ City
The Parties expressly waive and release any rights and benefits which they have or may have under
any similar law or rule of any other jurisdiction and pertaining to the matters released herein. It is
the Parties’ intention through this Agreement and with the advice of counsel that they shall fully,
finally and forever settle and release the Released Claims as set forth above. In furtherance of
such intention, the release herein given shall be and remain in effect as a full and complete release
of such matters, notwithstanding the discovery of any additional claims or facts relating thereto.
2. Insight and Doe’s Obligations
a. Distribution of Settlement Payment. Concurrently herewith, Insight and
Ms. Doe shall mutually agree in writing on the distribution of the Settlement
Payment between Insight and Ms. Doe.
3. Notifying Court of Settlement. Upon execution of this Agreement, the Parties
shall immediately file a Joint Notice advising the Court that the case has been settled, and the
Parties shall withdraw any and all pending motions and requests, including requests for sanctions.
4. Dismissal of Plaintiffs’ Claims and City’s Counterclaim. Within fifteen
(15) business days of the Effective Date, the Parties shall file a stipulation of dismissal pursuant to
Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure requesting dismissal with prejudice
of the Claims filed by Insight and Ms. Doe and the Counterclaim filed by the City in the Action.
5. Settlement; Mutual Releases. Subject to the terms of this Agreement, the Parties
hereby mutually waive, release and forever discharge any and all claims against each other arising
from the Action and the facts and circumstances described in the Action, including Plaintiffs’
Claims and the City’s Counterclaim; and, the release contained herein includes a release of any
and all disputes and/or claims related to the allegations of the Claims or the Counterclaim that
were, or could have been, asserted in the Action, related to the facts of the Action (collectively the
foregoing are the referred to herein as the “Released Claims.”)
6. Waiver of California Civil Code Section 1542.
The Parties understand and agree that the releases provided herein extend to all of the
Released Claims, whether known or unknown, suspected or unsuspected. With respect to the
Released Claims, the Parties expressly waive and relinquish any and all rights they may have under
California Civil Code Section 1542, which provides as follows:
“§ 1542. (General Release — Claims Extinguished.) A general
release does not extend to claims that the creditor or releasing
party does not know or suspect to exist in his or her favor at the
time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the
debtor or released party.”
____ Insight ____ Ms. Doe ____ Ms. Beatificato
____ Dr. Grosso ____ City
The Parties expressly waive and release any rights and benefits which they have or may have under
any similar law or rule of any other jurisdiction and pertaining to the matters released herein. It is
the Parties’ intention through this Agreement and with the advice of counsel that they shall fully,
finally and forever settle and release the Released Claims as set forth above. In furtherance of
such intention, the release herein given shall be and remain in effect as a full and complete release
of such matters, notwithstanding the discovery of any additional claims or facts relating thereto.
2. Insight and Doe’s Obligations
a. Distribution of Settlement Payment. Concurrently herewith, Insight and
Ms. Doe shall mutually agree in writing on the distribution of the Settlement
Payment between Insight and Ms. Doe.
3. Notifying Court of Settlement. Upon execution of this Agreement, the Parties
shall immediately file a Joint Notice advising the Court that the case has been settled, and the
Parties shall withdraw any and all pending motions and requests, including requests for sanctions.
4. Dismissal of Plaintiffs’ Claims and City’s Counterclaim. Within fifteen
(15) business days of the Effective Date, the Parties shall file a stipulation of dismissal pursuant to
Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure requesting dismissal with prejudice
of the Claims filed by Insight and Ms. Doe and the Counterclaim filed by the City in the Action.
5. Settlement; Mutual Releases. Subject to the terms of this Agreement, the Parties
hereby mutually waive, release and forever discharge any and all claims against each other arising
from the Action and the facts and circumstances described in the Action, including Plaintiffs’
Claims and the City’s Counterclaim; and, the release contained herein includes a release of any
and all disputes and/or claims related to the allegations of the Claims or the Counterclaim that
were, or could have been, asserted in the Action, related to the facts of the Action (collectively the
foregoing are the referred to herein as the “Released Claims.”)
6. Waiver of California Civil Code Section 1542.
The Parties understand and agree that the releases provided herein extend to all of the
Released Claims, whether known or unknown, suspected or unsuspected. With respect to the
Released Claims, the Parties expressly waive and relinquish any and all rights they may have under
California Civil Code Section 1542, which provides as follows:
“§ 1542. (General Release — Claims Extinguished.) A general
release does not extend to claims that the creditor or releasing
party does not know or suspect to exist in his or her favor at the
time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the
debtor or released party.”
____ Insight ____ Ms. Doe ____ Ms. Beatificato
____ Dr. Grosso ____ City
The Parties expressly waive and release any rights and benefits which they have or may have under
any similar law or rule of any other jurisdiction and pertaining to the matters released herein. It is
the Parties’ intention through this Agreement and with the advice of counsel that they shall fully,
finally and forever settle and release the Released Claims as set forth above. In furtherance of
such intention, the release herein given shall be and remain in effect as a full and complete release
of such matters, notwithstanding the discovery of any additional claims or facts relating thereto.
7. Enforcement of Agreement. This Agreement may be pleaded as a full and
complete defense to any action, suit, or other proceeding by any Party hereto wherein the claims
are concerning or related to the Released Claims and/or this Agreement; provided, however that
any Party, as well as Disability Rights California, may move to enforce the specific terms of this
Agreement by filing a Petition for Writ of Mandate and/or Complaint for Breach of Contract in
Orange County Superior Court, after first meeting and conferring with the Party alleged to have
violated any term of this Agreement. If any Party, or Disability Rights California, files a Petition
for Writ of Mandate and/or Complaint for Breach of Contract in the Orange County Superior Court
to enforce the specific terms of this agreement, no other Party may assert that a Party or Disability
Rights California lack standing.
8. Power and Authority. Each person executing this Agreement represents and
warrants that he or she has the power, and is duly authorized, to execute this Agreement on behalf
of the person or entity that he or she purports to represent.
9. Reliance on Representations. The Parties each acknowledge and agree that the
other Parties to this Agreement are entering into this Agreement in reliance on their respective
representations set forth in this Agreement and that the failure of any such representation shall be
a material breach of this Agreement without further action by any Party.
10. Agreement Entered into Voluntarily. This Agreement is entered into freely and
voluntarily. Each Party has executed this Agreement with full knowledge of its significance and
with the express intention of affecting its legal consequence. None of the Parties have relied upon
any representation of any other Party in signing this Agreement. Each Party has had the
opportunity to retain legal counsel to review and approve this Agreement.
11. Neutral Construction. The Parties agree that this Agreement may not be altered,
amended, modified or otherwise changed except by a writing executed by each Party. Each Party
further agrees that because each Party has been active in the preparation and negotiation of the
terms of this Agreement, it shall not be construed against any Party in the event of any dispute as
to the meaning of its terms.
12. Governing Law. This Agreement shall be deemed to have been entered into and
shall be construed and enforced in accordance with the laws of the State of California.
13. Severability. In the event that, at any time after the execution of this Agreement,
any portion or provision of it is found by a court of competent jurisdiction to be illegal, invalid,
unenforceable, non-binding, or otherwise without legal force or effect, the remaining portion(s)
will remain in force and be fully binding.
14. Counterparts; Execution. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. All counterparts so executed shall
constitute an agreement binding on all the Parties, notwithstanding that all the Parties are not a
signatory to the same counterpart. This Agreement may be executed by facsimile or electronic
signature, either of which will be deemed to have the same force and effect as an original signature.
[signatures on following page]
CITY OF COSTA MESA
____________________________________
By: Cecilia Gallardo-Daly
Its: Interim City Manager
Signed with authorization provided in closed
session at the Regular City Council Meeting
October 21, 2025
Approved as to Form:
JONES & MAYER
__________________________________
By: Kimberly Hall Barlow
Its: City Attorney
EVERETT DOREY LLP
___________________________________
By: Seymour B. Everett, III
Its: Special Counsel
INSIGHT PSYCHOLOGY &
ADDICTION, INC
___________________________________
By: Mary Helen Beatificato
Its: Owner and General Counsel
MARY HELEN BEATIFICATO
___________________________________
By: Mary Helen Beatificato
GERALD GROSSO
___________________________________
By: Gerald Grosso
JANE DOE
___________________________________
By: Jane Doe
Signed with pseudonym to protect privacy
CITY OF COSTA MESA
____________________________________
By: Cecilia Gallardo-Daly
Its: Interim City Manager
Signed with authorization provided in closed
session at the Regular City Council Meeting
October 21, 2025
Approved as to Form:
JONES & MAYER
___________________________________
By: Kimberly Hall Barlow
Its: City Attorney
EVERETT DOREY LLP
___________________________________
By: Seymour B. Everett, III
Its: Special Counsel
INSIGHT PSYCHOLOGY &
ADDICTION, INC
___________________________________
By: Mary Helen Beatificato
Its: Owner and General Counsel
MARY HELEN BEATIFICATO
___________________________________
By: Mary Helen Beatificato
GERALD GROSSO
___________________________________
By: Gerald Grosso
JANE DOE
___________________________________
By: Jane Doe
Signed with pseudonym to protect privacy
CITY OF COSTA MESA
____________________________________
By: Cecilia Gallardo-Daly
Its: Interim City Manager
Signed with authorization provided in closed
session at the Regular City Council Meeting
October 21, 2025
Approved as to Form:
JONES & MAYER
___________________________________
By: Kimberly Hall Barlow
Its: City Attorney
EVERETT DOREY LLP
___________________________________
By: Seymour B. Everett, III
Its: Special Counsel
INSIGHT PSYCHOLOGY &
ADDICTION, INC
___________________________________
By: Mary Helen Beatificato
Its: Owner and General Counsel
MARY HELEN BEATIFICATO
___________________________________
By: Mary Helen Beatificato
GERALD GROSSO
___________________________________
By: Gerald Grosso
JANE DOE
___________________________________
By: Jane Doe
Signed with pseudonym to protect privacy
CITY OF COSTA MESA
____________________________________
By: Cecilia Gallardo-Daly
Its: Interim City Manager
Signed with authorization provided in closed
session at the Regular City Council Meeting
October 21, 2025
Approved as to Form:
JONES & MAYER
___________________________________
By: Kimberly Hall Barlow
Its: City Attorney
EVERETT DOREY LLP
___________________________________
By: Seymour B. Everett, III
Its: Special Counsel
INSIGHT PSYCHOLOGY &
ADDICTION, INC
___________________________________
By: Mary Helen Beatificato
Its: Owner and General Counsel
MARY HELEN BEATIFICATO
___________________________________
By: Mary Helen Beatificato
GERALD GROSSO
___________________________________
By: Gerald Grosso
JANE DOE
___________________________________
By: Jane Doe
Signed with pseudonym to protect privacy