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HomeMy WebLinkAbout2023-04-05; Planning Commission; ; ZCA 2023-0002/LCPA 2023-0018 (DEV2023-0040) - ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023Item No. Application complete date: N/A P.C. AGENDA OF:April 5, 2023 Project Planner: Scott Donnell Project Engineer: N/A SUBJECT: ZCA 2023-0002/LCPA 2023-0018 (DEV2023-0040) - ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 - Request for recommendation of approval for amendments to the Carlsbad Municipal Code Title 21, the Zoning Ordinance, to implement Housing Element Program 1.3 “Alternative Housing,” Objective G, and Program 2.13 “Housing for Persons Experiencing Homelessness,” Objective H. The action also includes a Local Coastal Program Amendment for the updates to the Zoning Ordinance. The city planner has determined that the amendments are covered under Environmental Impact Report EIR 13-02 prepared for the 2015 comprehensive update to the General Plan and the addendum to that EIR approved by City Council Resolution 2021- 073 on April 6, 2021, for the update of the city’s Housing Element for the 6th cycle (2021 –2029). I.RECOMMENDATION That the Planning Commission ADOPT a Planning Commission Resolution RECOMMENDING APPROVAL of Zoning Code Amendment ZCA 2023-0002 and Local Coastal Program Amendment LCPA 2023-0018, based on the findings contained therein. II.PROJECT DESCRIPTION AND BACKGROUND Background Every eight years each local jurisdiction in California is required to update the General Plan Housing Element. After a two-year process, on April 6, 2021, the City Council adopted an update to the City of Carlsbad’s Housing Plan. The update provides the city’s housing plan (strategy) for the 2021-2029 housing period. This strategy is implemented through goals, policies, and programs. There are approximately 40 Housing Element programs that are further divided into nearly 160 objectives. These program objectives identify ongoing actions the city must implement throughout the housing period and specific actions the city must accomplish by certain due dates. The Housing Plan includes Goals, Policies, Programs and Objectives. Goals are articulated as “end condition statements”. They are implemented by Policies, statements on the position the city takes to implement the goal. Finally, the Programs and Objectives outline the specific actions the city will take to ensure implementation of the Polices. The Housing Element includes a number of programs to be implemented through the eight-year housing cycle. These actions include amendments to the General Plan and Zoning Ordinance. Some of these programs are implemented as individual actions, and some are combined with the Municipal Code and Zoning Ordinance clean-up programs that are conducted regularly. 2 April 5, 2023 Item #2 Page 1 of 96 Staff Report 0 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 April 5, 2023 Page 2 This project proposes Zoning Ordinance amendments that are necessary to implement two objectives of two different programs. Amendments are necessary to ensure compliance with state housing law as described in the program objectives. A summary of the changes proposed by each program are highlighted below: Alternative Housing (Program 1.3 Objective G) • Program 1.3, Alternative Housing, Objective G: Review and amend the Carlsbad Zoning Ordinance to review and amend definitions and allowances of uses for the definition of family, employee housing, residential care facilities, group homes and/or boardinghouses to review regulations to be consistent with California Law for six or fewer residents including but not limited to Health and Safety Code Sections 17021.5 and 17021.6. Additionally, review and revise, as appropriate, requirements to allow group homes and residential care facilities in all residential zones for seven or more residents and ensure no constraint to housing for persons with disabilities. Family & Employee Housing Definitions The city previously implemented portions of Program 1.3g through ZCA 2022-0002, “2022 Zoning Ordinance Clean Up,” which was reviewed by the Planning Commission and approved by the City Council in June and Sept. 2022, respectively, via City Council Ordinance No. CS-432), (Exhibit 4). The 2022 Zoning Ordinance Clean Up project, among other things, revised the definition of “family,” defined “employee housing, small” and added “employee housing (servicing six or fewer persons)” as a permitted use in residential/mixed-use zones. No additional revisions to these definitions are required for compliance with state regulations for six or fewer persons. Residential Care Facilities “Residential care facilities” are licensed residential facilities offering care and treatment for disabled persons and other persons who require special care and treatment. Under State Lanterman Developmental Disabilities Services Act (also known as the Lanterman Act), small licensed residential care facilities for six or fewer persons must be treated as regular residential uses and permitted by right in all residential districts. No conditional use permit, variance, or special permit can be required for these small licensed residential facilities unless the same permit is required for single-family homes, nor can parking standards be higher, nor can special design standards be imposed. Licensed residential care facilities with seven or more residents are not required by State law to be permitted by-right in residential zones. The State Department of Housing and Community Development (HCD) reviewed the city’s Residential Care Facilities (serving seven or more persons) permitting and parking requirements and determined that, “the permitting and parking requirements to be constraints for developing and providing access to housing for persons with disabilities.” The proposed project will address the HCD compliance letter by allowing Residential Care Facilities serving seven or more persons to be conditionally permitted in all residential zones. Currently, residential care facilities servicing seven or more persons are only conditionally permitted in three residential zones (the R-3 zone, R-P zone, and RD-M zone) (Exhibit 6). Potential conditions for approval of large residential care facilities may include hours of operation, security, loading requirements, noise regulations, and restrictions on loitering. Conditions would be similar to those for other similar uses and would not serve to constrain the development of such facilities. April 5, 2023 Item #2 Page 2 of 96 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 April 5, 2023 Page 3 The 2022 Zoning Ordinance Clean Up project (ZCA 2022-0002) addressed the parking standards for small residential care facilities so that the number of off-street parking spaces required is the same as other single-family homes (i.e., a two car garage). This proposed project will also provide new parking standards for large residential care facilities (serving seven or more persons). Parking will be based on the operating characteristics of the use such as number of employees, beds, and service deliveries. There is no other changes proposed to the requirements for “residential care facilities.” Group Homes “Group homes” is a housing type that provides a supportive living environment shared and is used by persons who are considered handicapped under State law. Group homes may serve children, the elderly or chronically ill, mentally disabled individuals, or adults recovering from or being treated for alcohol or drug addiction. Like “residential care facilities,” licensed group homes serving six or fewer residents must be treated like single-family homes or single dwelling units for zoning purposes. The statutes specifically state that these facilities cannot be considered to be boarding houses or rest homes or regulated as such. Furthermore, if the group home operates in ways that fall within the statutory definitions of supportive housing or transitional housing, the city would have to comply with Housing Element Law’s specific protections of these types of housing types. Licensed group homes with seven or more residents are not required by State law to be permitted by-right in residential zones. In December 2022 HCD came out with additional guidance on group homes and the expectation for allowance of them within jurisdictions (Exhibit 5). Consistent with this guidance to promote more inclusive communities and affirmatively furthering fair housing (AFFH), the proposed project will define “group homes” and permit or conditionally permit (i.e., conditional use permit requiring Planning Commission review) group homes in residential and commercial (mixed-use) zones. The guidance and proposed project differentiate between group homes that do not require state licensing (no constraints to number of persons served), and group homes that do require state licensing but serves six or fewer persons, but both types of group homes are permitted in all residential/mixed-use zones. The third type of group homes are those that require state licensing and serve seven or more persons; these group homes will be conditionally permitted in residential/mixed-use zones. The types of group homes that do not require state licensing include supportive housing, transitional housing, recovery residences and sober living homes that do not provide alcoholism or drug addiction recovery/treatment services or other similar group housing that only provide peer support and limited services to residence but do not provide the more extensive care and supervision that requires obtaining a license. These uses are only subject to the generally applicable, nondiscriminatory health, safety and zoning laws that apply to all single-family residences. The HCD Memo states that, “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.” It further alludes that local policies that require all group homes to obtain discretionary permits is a constraint on housing and implies that it is not allowed. Therefore, while there is no upper limit proposed on group homes without licenses required, the standard zoning regulations will apply to set limits on setbacks, height, and in many cases require a Coastal Development Permit consistent with any other single family residential unit. Group homes that do require state licensing are those that require extensive care and supervision such as a facilitator to provide 24-hour care. State licensed group homes that serve six or fewer April 5, 2023 Item #2 Page 3 of 96 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 April 5, 2023 Page 4 persons include uses such as foster care homes that care for six children or less, and therefore are only subject to the generally applicable, nondiscriminatory health, safety and zoning laws that apply to all single-family residences. Development standards for group homes that are conditionally permitted are proposed under this project and are the same development standards currently required of residential care facilities serving seven or more persons; i.e., standards require compliance with state and building code regulations and allow for imposition of additional requirements and restrictions such as hours of operation, noise, lighting, etc. The proposed project includes new parking standards for group homes. For group homes that are permitted in residential zones, two spaces are required and can be provided through a two-car garage or two separate one-car garages. This is consistent in what is required for a single-family residential home per Zoning Ordinance parking standards (Section 21.44.020, Table A). For group homes that require approval of a Conditional Use Permit, parking requirements will be determined based on the operating characteristics of the use such as number of employees, beds, and service deliveries. Similar to “residential care facilities,” group homes that are permitted in residential zones are subject only to the permits required of similar residential uses, including Coastal Development Permits or Minor Coastal Development Permit. Group homes that require approval of a Conditional Use Permit will also be subject to the approval of a Coastal Development Permit if it is located within the Coastal Zone. Boardinghouses The proposed project will revise the “boardinghouses” definition to clarify boardinghouses are not bed and breakfast uses, employee housing or group homes. This proposed change ensures that boardinghouses are accurately defined and do not constrain uses such as group homes and residential care facilities in a manner that would violate state AFFH laws. Currently, boardinghouses are only permitted in the R-P zone. Emergency Shelters and Low Barrier Navigation Centers (Program 2.13 Objective H) • Program 2.13, Housing for Persons Experiencing Homelessness, Objective H: Review the low barrier navigation centers, emergency shelters, and supportive housing provisions to comply with recent changes to state law [Government Code 65651 and Government Code 65583(a)(4)] and amend the zoning ordinance and other documents as necessary to comply. Supportive and Transitional Housing California Health and Safety Code Section 50675.14 defines “supportive housing” as housing with no limit on length of stay, that is occupied by the target population, and that is linked to on-site or offsite services that assist the supportive housing resident in retaining the housing, improving their health status, and maximizing their ability to live and, when possible, work in the community. The target population serves includes persons with disabilities, and families are homeless or who are homeless youth (Government Code Section 50675.14). California Health and Safety Code Sections 50675.2 and 50801 define “transitional housing” and “transitional housing development” as buildings configured as rental housing developments but operated under program requirements that call for the termination of assistance and recirculation of the assisted unit to another eligible program recipient April 5, 2023 Item #2 Page 4 of 96 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 April 5, 2023 Page 5 at some predetermined future point in time, which shall be no less than six months. Residents of transitional housing are usually connected to supportive services designed to assist the homeless in achieving greater economic independence and a permanent, stable living situation. Transitional housing can take several forms, including group quarters with beds, single-family homes, and multi- family apartments and typically offers case management and support services to help return people to independent living (often six months to two years). AB 2162 (2018) and Government Code Section 65583(c)(3) specify that supportive housing and transitional housing should be considered a residential use of property, and subject only to those restrictions that apply to other residential dwellings of the same type in the same zone. Addressing first the program objective requirement to review state law compliance of the city’s supportive and transitional housing regulations, staff notes amendments to the Carlsbad Municipal Code (Ordinance CS-191) in 2012 added definitions of supportive housing and transitional housing and permit (if six or fewer persons) or conditionally permit (if more than six persons) them in residential and certain commercial zones. Subsequently, Ordinance CS-249 was approved in 2014 that removed the limits on number of persons and the requirements for a conditional use permit and clarified supportive housing and transitional housing are subject to only those restrictions that apply to other residential uses of the same type in the same zone. Based upon an evaluation of the requirements of Government Code Sections 65583 and 65651, the city’s Zoning Ordinance is consistent with all applicable state laws, an no further changes are necessary. Emergency Shelters California Health and Safety Code Section 50801 defines an emergency shelter as “housing with minimal supportive services for homeless persons that is limited to occupancy of six months or less by a homeless person. No individual or household may be denied emergency shelter because of an inability to pay.” Emergency shelters offer support services and temporary housing stabilization on a short-term basis until individuals can find permanent housing. In 2012, ZCA 09-05 was approved that amended Section 21.04.140.5 to add definitions to emergency shelters within the M, Industrial, and P-M, Planned Industrial, zones as a permitted use with less than 30 beds and as a Process 3 Conditional Use Permit with 30 or more beds and subject to the requirements of Section 21.32.070. Updates to state law require that multiple land use designations, including one with residential uses, allow emergency shelters, and that the definition is broadened to allow for “interim interventions, including, but not limited to, a navigation center, bridge housing, and respite or recuperative care.” (Government Code Section 65583 (a)(4)(C). Between the M and P-M zones, emergency shelters are now allowed by-right in approximately 1,510 acres in Carlsbad, which is approximately seven percent of the land area within the city. Unlike many coastal cities, Carlsbad has a significant portion of land that is designated for industrial areas and the uses in these areas are light-industrial or office in nature. Additionally, Low Barrier Navigation Centers, described below, can also serve as shelters and, as proposed, would be permitted in other zones; this further supplements the adequacy of the city’s capacity for temporary shelter facilities. Additional analysis on Low Barrier Navigation Centers will be included in the next Housing Element for the City of Carlsbad. The city’s support for housing and emergency shelters is further shown in the city’s substantial investment in the La Posada shelter to turn it into a Low Barrier Navigation Center, which is located April 5, 2023 Item #2 Page 5 of 96 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 April 5, 2023 Page 6 within an Industrial (M) Zone. The city has pursued two separate grants to help expand this facility and allow the shelter to provide services to additional groups. Low Barrier Navigation Centers Low Barrier Navigation Centers are shelters that have additional requirements and regulations to provide temporary housing but include case managers, health services, and a focus to move people into permanent housing. The proposed amendments allow Low Barrier Navigation Centers anywhere an emergency shelter is allowed (M, P-M). Further, Government Code 65662 requires that Low Barrier Navigation Centers be allowed by-right in any areas zoned for mixed use and nonresidential zones permitting multifamily uses, which includes C-1, C-2, and C-L. The use would also be permitted by-right in the following residential zones: R-2, R-3, R-P, R-T, RD-M, and RMHP. Government Code section 65668 states that the provisions related to Low Barrier Navigation Centers remain in effect until Jan. 1, 2027, unless extended. The changes regarding emergency shelters and Low Barrier Navigation Center are described more in Exhibit 3, but a summary of the changes are: o Define “Low Barrier Navigation Center.” As a type of shelter that includes specific social services to provide care and transition to affordable housing, and refence the State Law definition. o Broaden the definition of “emergency shelter” to include facilities such as Low Barrier Navigation Centers and respite or recuperative care. o Implement State law which permits Low Barrier Navigation Center in any residential zone that provides for multi-family residential and commercial zones allowing residential uses. III. ANALYSIS For a specific description of each proposed amendment and its associated analysis and recommendation, please see the analysis table in Exhibit 3. Local Coastal Program Amendment Since the Zoning Ordinance is part of the Carlsbad Local Coastal Program Implementation Plan, a Local Coastal Program amendment is also proposed (LCPA 2023-0018). The Planning Commission’s recommendation to amend the Zoning Ordinance also constitutes a recommendation to amend the Local Coastal Program Implementation Plan. No portion of the Local Coastal Program Land Use Plan is being amended. If ZCA 2023-0002 and LCPA 2023-0018 are approved by the City Council, city staff will formally apply for an amendment with the California Coastal Commission. If the California Coastal Commission approves the amendment to the Local Coastal Program, the changes to the Zoning Ordinance will be effective both inside and outside the Coastal Zone. Zoning Ordinance Consistency The amendments to the Zoning Ordinance (Title 21) are intended to clarify regulations and procedures as well as establish consistency with California Government Code, particularly Title 7, Planning and Land Use, and within it, Article 10.6, Housing Elements. Staff has analyzed the proposed amendments and finds that the amendments are internally consistent with the other provisions of the Zoning Ordinance not being amended and that the proposed amendments do not create any conflicts with the provisions of the April 5, 2023 Item #2 Page 6 of 96 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 April 5, 2023 Page 7 General Plan or Local Coastal Program. In fact, the amendment directly implements programs of the General Plan Housing Element; this improves the accuracy, use and function of the Zoning Ordinance. The Planning Commission has the authority under Chapter 21.52 of the Zoning Ordinance to provide recommendations to the City Council on any amendments to the Zoning Ordinance or Local Coastal Program. Pursuant to section 21.52.050, the Planning Commission must provide a recommendation based on the relationship of the proposed amendment to applicable provisions of the Zoning Ordinance, the General Plan and Local Coastal Program, and any applicable master or specific plan. General Plan Consistency The project is consistent with the General Plan in that the amendments proposed do not conflict with General Plan goals and policies and instead implement programs of the General Plan Housing Element; specifically, the amendments complete implementation of Program 1.3 g., which commits the city to review and revise as necessary requirements related to group homes, including residential care facilities, and implement Program 2.13 h., which commits the city to review and revise as necessary standards related to housing the homeless. A demonstration of compliance with the General Plan is provided in the table below. TABLE A – GENERAL PLAN CONSISTENCY Element Use, Classification, Goal, Objective, or Program Proposed project Comply? Land Use & Community Design Goal 2-G.4: Provide balanced neighborhoods with a variety of housing types and density ranges to meet the diverse demographic, economic and social needs of residents, while ensuring a cohesive urban form with careful regard for compatibility. Consistent with State law and the city’s adopted Housing Plan, the project proposes amendments to implement programs that provide a greater breadth of housing options for persons such as seniors or those experiencing homelessness or with disabilities. The project does not amend the locations or descriptions of the city land use designations and provides for a conditional use permit and standards for group homes serving seven or more persons that require State licensing. Yes Housing Element Goal 10-G.2: Sufficient new, affordable housing opportunities in all quadrants of the city to meet the needs of current lower- and moderate-income households and those with special needs, and a fair share proportion of future lower- and moderate-income households. Implementation of Programs 1.3 g. and 2.13 h. applies to land use zones throughout Carlsbad. As noted in the response to General Plan Goal 2-G.4 above, implementation of the programs provides housing options to serve lower-income and special needs households. Yes April 5, 2023 Item #2 Page 7 of 96 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 April 5, 2023 Page 8 Local Coastal Program Consistency With the inclusion of LCPA 2023-0018, this project meets the requirements of, and is in conformity with, the policies of Chapter 3 of the Coastal Act and all applicable policies of the Carlsbad Local Coastal Program not being amended by this project. The amendments do not modify the use or intensity of any designations and do not conflict with any Coastal Zone regulations, land use designations or policies with which development must comply. IV. ENVIRONMENTAL REVIEW Pursuant to the California Environmental Quality Act, and its implementing regulations Section 15168 of the CEQA Guidelines sets the criteria for use of a Program Environmental Impact Report (PEIR) for later activities to determine if an additional environmental document must be prepared. Section 15168(c)(2) directs a Program EIR to utilize the specific process referenced in Sections 15162 through 15164 that sets forth the criteria for determining the appropriate additional environmental documentation, if any, to be completed when there is a previously adopted EIR covering the project for which a subsequent discretionary action is required. As part of its approval of the Comprehensive General Plan Update on Sept. 22, 2015, the City Council adopted Resolution 2015-242, certifying EIR 13-02 and adopting Findings of Fact, a Statement of Overriding Considerations, and a Mitigation Monitoring and Reporting Program. EIR 13-02 is available via the city’s Public Records Access weblink by entering “EIR 13-02” in the “Project ID” search field at Custom Search (carlsbadca.gov). Subsequently, on April 6, 2021, the City Council approved an update of the city’s Housing Element for the 6th cycle (2021 – 2029) by Resolution 2021-073, which included an Addendum consistent with Section 15164 of the CEQA Guidelines to study impacts of the Goals, Policies, Programs and Objectives contained in the Housing Element. On July 13, 2021, the California Department of Housing and Community Development found the element to be in substantial compliance with all applicable laws. The Addendum and resolution are available at 2021-04-06; City Council; Resolution 2021-073 (carlsbadca.gov). The Addendum included an evaluation of the Housing Element Goals, Policies, Programs and Objectives that will be implemented throughout the eight-year housing cycle. The proposed project includes amendments to implement a portion of Housing Element Program 1.3 g. and Program 2.13 h.to bring the zoning code into compliance with State law with respect to group homes, including residential care facilities, and housing for the homeless. The proposed amendments break no new legal ground and are within the scope of the of the Addendum. During adoption of the General Plan, EIR 13-02 considered and evaluated all land use impacts associated with the programs of the Housing Plan, including programs 1.3 and 2.13. The Addendum evaluated all direct and indirect impacts, in addition to cumulative impacts, that would result from Housing Element implementation. The implementation of Housing Element Program 1.3g and 2.13h falls under the scope of the Addendum and is internally consistent with other provisions of the code, and the land use regulations and requirements set forth in the city’s General Plan and Local Coastal Program. As these programs were considered in the April 6, 2021, Addendum, all potential cumulative impacts have been considered and studied, and there are no unanticipated environmental impacts or changes in circumstances. Additionally, there is no "new information of substantial importance" as that term is used in CEQA Guidelines Section April 5, 2023 Item #2 Page 8 of 96 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 April 5, 2023 Page 9 15162(a)(3) and none of the triggers for a subsequent/supplemental EIR apply. Therefore, the Addendum and certified Final EIR are adequate without modification. Based on this analysis, the city planner has determined that there are no substantial changes proposed in the project and there are no substantial changes in the circumstances under which the project will be undertaken that will require major revisions to the previous EIR due to the involvement of significant new environmental effects or a substantial increase in the severity of previously identified significant effects. . A notice of determination is proposed for filing with the County Clerk. EXHIBITS: 1.Planning Commission Resolution a.Attachment A: Draft City Council Ordinance 2.Underline/strikeout exhibit of proposed Zoning Ordinance changes 3.Analysis table of proposed amendments 4.City Council Resolution No. CS-432, Approved Sept. 27, 2022 5.Group Home Technical Advisory, California Department of Housing and Community Development, Dec. 2022 6.State Dept. of Housing and Community Development Letter dated July 13, 2021 April 5, 2023 Item #2 Page 9 of 96 PLANNING COMMISSION RESOLUTION 7476 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF A ZONE CODE AMENDMENT TO THE ZONING ORDINANCE, TITLE 21 OF THE CARLSBAD MUNICIPAL CODE, TO IMPLEMENT A PORTION OF HOUSING ELEMENT PROGRAM 1.3 (G.) AND TO IMPLEMENT HOUSING ELEMENT PROGRAM 2.13 (H.). APPROVAL IS ALSO RECOMMENDED FOR A LOCAL COASTAL PROGRAM AMENDMENT TO IMPLEMENT THE ZONE CODE AMENDMENT IN THE COASTAL ZONE. CASE NAME: ALTERNATIVE AMENDMENTS 2023 AND TEMPORARY CASE NO: ZCA 2023-0002/LCPA 2023-0018 (DEV 2023-0040) HOUSING Exhibit 1 WHEREAS, the City Planner has prepared a proposed Zone Code Amendment and Local Coastal Program Amendment pursuant to Section 21.52.020 of the Carlsbad Municipal Code; the purpose of the amendments is to ensure consistency of city requirements with state law; and WHEREAS, the City Planner has prepared the Local Coastal Program Amendment, as provided in Public Resources Code Section 30514 and Section 13551 of California Code of Regulations Title 14, Division 5.5; and WHEREAS, as part of its approval of the Comprehensive General Plan Update on Sept. 22, 2015, the City Council adopted Resolution 2015-242, certifying Environmental Impact Report (EIR) 13-02 and adopting Findings of Fact, a Statement of Overriding Considerations, and a Mitigation Monitoring and Reporting Program; and WHEREAS, on April 6, 2021, the City Council approved the city's Housing Element by Resolution 2021-073, which included an Addendum to EIR 13-02 consistent with Section 15164 of the CEQA Guidelines to study impacts of the proposed Goals, Policies, Programs and Objectives of the Housing Element; and WHEREAS, pursuant to CEQA, when taking subsequent discretionary actions in furtherance of a project for which an EIR has been certified, the Lead Agency is required to review any changed circumstances to determine whether any of the circumstances under Public Resources Code section 21166 and CEQA Guidelines section 15162 require additional environmental review; and April 5, 2023 Item #2 Page 10 of 96 WHEREAS, the City Planner has determined the proposed amendments when compared to the project description and analysis conducted in EIR 13-02 and the Addendum approved by Resolution 2021-073, complies with the provisions of sections 15168 and 15162 of the California Environmental Quality Act Guidelines and no further environmental review is required; and WHEREAS, the proposed amendments to the Zone Ordinance and Local Coastal Program are set forth in the draft City Council Ordinance, Attachment A, dated April 5, 2023, and attached hereto ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 -ZCA 2023-0002/LCPA 2023-0018; and WHEREAS, California Coastal Commission Regulations require a six-week public review period for any amendment to the Local Coastal Program; and WHEREAS, the Planning Commission did on the 5th day of April, 2023, hold a duly noticed public hearing as prescribed by law to consider said request; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said Commission considered all factors relating to the Zoning Ordinance Amendment and Local Coastal Program Amendment. NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad as follows: A)That the foregoing recitations are true and correct. B)At the end of the state-mandated six-week review period for the Local Coastal Program Amendment, starting on March 24, 2023, and ending on May 5, 2023, staff shall present to the City Council a summary of the comments received. C)That based on the evidence presented at the public hearing, the Commission RECOMMENDS APPROVAL of ZCA 2023-0002 & LCPA 2023-0018, based on the following findings: Findings: 1.ZCA 2023-0002/LCPA 2023-0018 reflect sound principles of good planning in that the amendments to the Zoning Ordinance (Title 21) are intended to clarify regulations and procedures as well as establish consistency with California Government Code, particularly Title 7, Planning and Land Use, and within it, Article 10.6, Housing Elements. Staff has analyzed the -2-April 5, 2023 Item #2 Page 11 of 96 proposed amendments and finds they are internally consistent with the other provisions of the Zoning Ordinance not being amended and that the proposed amendments do not create any conflicts with the provisions of the General Plan or Local Coastal Program. In fact, the amendment directly implements programs of the General Plan Housing Element; this improves the accuracy, use and function of the Zoning Ordinance; and 2.ZCA 2023-0002/LCPA 2023-0018 is consistent with the General Plan in that the proposed amendments do not conflict with General Plan goals and policies and instead implement programs of the General Plan Housing Element; specifically, the amendments complete implementation of Program 1.3 {g.), which commits the city to review and revise as necessary requirements related to group homes, including residential care facilities, and implement Program 2.13 {h.), which commits the city to review and revise as necessary standards related to housing the homeless. Further, the amendments are consistent with Land Use and Community Design Element Goal 2-G.4, "Provide balanced neighborhoods with a variety of housing types and density ranges to meet the diverse demographic, economic and social needs of residents, while ensuring a cohesive urban form with careful regard for compatibility;" and Housing Element Goal 10-G.2, "sufficient new, affordable housing opportunities in all quadrants of the city to meet the needs of current lower-and moderate-income households and those with special needs, and a fair share proportion of future lower-and moderate-income households." 3.LCPA 2023-0018 is required to ensure consistency between the Local Coastal Program and the Zoning Ordinance; and 4.LCPA 2023-0018 meets the requirements of, and is in conformity with, the policies of Chapter 3 of the Coastal Act and all applicable policies of the Carlsbad Local Coastal Program not being amended by this amendment, in that the amendments do not modify the use or intensity of any land use designations and do not conflict with any Coastal Zone regulations, land use designations or policies with which development must comply. -3-April 5, 2023 Item #2 Page 12 of 96 ,# PASSED, APPROVED, .AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, held on April 5, 2023, by the following vote, to wit: AYES: Commissioners Kamenjarin, Lafferty, Meenes, Merz, Sabellico, and Stine NAYES: ABSENT: ABSTAIN: PETER MERZ, Chairperson CARLSBAD PLANNING COMMISSION ATTEST: [,0_� ERIC LARDY City Planner -4-April 5, 2023 Item #2 Page 13 of 96 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AMENDMENT TO THE ZONING ORDINANCE, TITLE 21 OF THE CARLSBAD MUNICIPAL CODE, TO IMPLEMENT A PORTION OF HOUSING ELEMENT PROGRAM 1.3 (G.) AND IMPLEMENT HOUSING ELEMENT PROGRAM 2.13 (H.); AND APPROVING AN AMENDMENT TO THE LOCAL COASTAL PROGRAM. CASE NAME: ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 CASE NO: ZCA 2023-0002/LCPA 2023-0018 (DEV 2023-0040) Attachment A WHEREAS the City Planner has prepared amendments to the Zoning Ordinance (Title 21 of the Carlsbad Municipal Code) and to the Local Coastal Program (ZCA 2023-0002/LCPA 2023°0018) pursuant to Chapter 21.52 of the Carlsbad Municipal Code, Section 30514 of the Public Resources Code, and Section 13551 of California Code of Regulations Title 14, Division 5.5; and WHEREAS the Carlsbad Municipal Code Title 21 (Zoning Ordinance) is part of the Carlsbad Local Coastal Program Implementation Plan, and therefore, amendments to Title 21 also constitute amendments to the Local Coastal Program; and WHEREAS, pursuant to California Coastal Commission Regulations, a six-week public review period for the Local Coastal Program Amendment began March 24, 2023, and ended on May 6, 2023; and WHEREAS, on May 4, 2023, the Airport Land Use Commission reviewed and found that the proposed amendments are consistent with the adopted McClellan-Palomar Airport Land Use Compatibility Plan; and WHEREAS, on April 5, 2023, the Planning Commission held a duly noticed public hearing as prescribed by law to consider ZCA 2023-0002/LCPA 2023-0018; and WHEREAS the Planning Commission adopted Planning Commission Resolution No. [number] recommending to the City Council that ZCA 2023-0002/LCPA 2023-0018 be approved; and WHEREAS the City Council of the City of Carlsbad held a duly noticed public hearing as prescribed by law to consider ZCA 2023-0002/LCPA 2023-0018; and WHEREAS at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, the City Council considered all factors, including written public comments, if any, related to ZCA 2023-0002/LCPA 2023-0018; and April 5, 2023 Item #2 Page 14 of 96 NOW, THEREFORE, the City Council of the City of Carlsbad, California, ordains as follows that: 1.The above recitations are true and correct. 2. 3. ,That the findings of the Planning Commission in Planning Commission Resolution No. XXXX shall also constitute the findings of the City Council. That Chapter 21.04 "Definitions" Sections 21.04.055 and 21.04.140.5 of the Carlsbad Municipal Code is amended as shown below: 21.04.055 Boardinghouse. "Boardinghouse" means a building with more than four guest rooms where lodging and meals are provided for compensation but does not include rest homes, bed and breakfast uses, employee housing, convalescent homes, or group homes. 21.04.140.5 Emergency shelter. "Emergency shelter" means year-round housing with minimal supportive services for homeless persons or families with occupancy limited to six months or less by homeless persons. An Emergency Shelter can also be inclusive of the interim interventions of navigation center, bridge housing, and respite or recuperative care {defined in Government Code 65583 {a){4){C), as of January 1, 2023) and as a Low Barrier Navigation Center defined in CMC 21.04.264. 4.That Chapter 21.04 "Definitions" Sections 21.04.163 and 21.04.264 of the Carlsbad Municipal Code is added to read as follows: 21.04.163 Group Homes. "Group .homes" means housing being used as a supportive living environment shared and used by persons who are considered handicapped under state or federal law. Group Homes may serve children, the elderly or chronically ill, mentally disabled individuals, or adults recovering from or being treated for alcohol or drug addiction. A group home operated by a single operator or service provider {whether licensed or unlicensed) can include residential care facilities, supportive housing, transitional housing and othe'r similar communal housing facilities but does not include boardinghouses. A group home that does not require state licensing or does require state licensing but serves six or fewer persons, is a residential use and is subject to only those restrictions that apply to other residential uses of the same type in the same zone. April 5, 2023 Item #2 Page 15 of 96 "' 21.04.264 Low Barrier Navigation Center. "Low Barrier Navigation Center" means any housing first shelter focused on moving people into permanent housing that provides temporary living facilities as outlined in Government Code 65660 as of January 1, 2023. 5.The permitted use tables in each of the following sections for zones R-A, R-E, R-1, R-2, R-3, R-P, R-T, R-W, RD-M and RMHP is amended by the addition of the following use listing: 21.08.020 Permitted uses, Table A. 21.09.020 Permitted uses, Table A. 21.10.020 Permitted uses, Table A. 21.12.020 Permitted uses, Table A. 21.16.020 Permitted uses, Table A. 21.18.020 Permitted uses when the R-P Zone implements the "RMH" or "RH" General Plan Land Use Designations, Table B. 21.20.010 Permitted uses, Table A. 21.22.020 Permitted uses, Table A. 21.24.020 Permitted uses, Table A. 21.37.020 Permitted uses, Table A. Use Group homes (serving six or fewer persons and requiring state licensing) (defined: Section 21.04.163) Group homes (state licensing not required) (defined: Section 21.04.163) Group homes (serving seven or more persons and requiring state licensing) (defined: Section 21.04.163) p CUP X X X 6.The permitted use tables in each of the following sections for zones C-1, C-2 and C-3 are amended by the addition of the following use listing: 21.26.010 Permitted uses, Table A. 21.28.010 Permitted uses, Table A. 21.31.010 Permitted uses, Table A. Ace Use p CUP Ace Group homes (serving seven or more persons and requiring state X licensing) (defined: Section 21.04.163) 7.The permitted use tables in each of the following sections for zones R-2, R-3, R-P, R-T, RO­ M and RMHP are amended by the addition of the following use listing: April 5, 2023 Item #2 Page 16 of 96 I I Section 21.12.020 Permitted uses, Table A Section 21.16.020 Permitted uses, Table A Section 21.18.020 Permitted uses when the R-P Zone implements the "RMH" or "RH" General Plan Land Use Designations, Table B Section 21.20.020 Permitted uses, Table A Section 21.24.020 Permitted uses, Table A Section 21.37.020 Permitted uses, Table A Use Low Barrier Navigation Center (defined: section 21.04.264) p X CUP Ace 8.The permitted use tables in each of the following sections for zones R-A, R-E, R-1, R-2, R-3, R-P, R-T, R-W, RD-M and RMHP, are amended by the addition of the new use listing as shown below: 21.08.020 Permitted uses, Table A. 21.09.020 Permitted uses, Table A. 21.10.020 Permitted uses, Table A. 21.12.020 Permitted uses, Table A. 21.16.020 Permitted uses, Table A. 21.18.020 Permitted uses when the R-P Zone implements the "RMH" or "RH" General Plan Land Use Designations, Table B. 21.20.010 Permitted uses, Table A. 21.22.020 Permitted uses, Table A. 21.24.020 Permitted uses, Table A. 21.37.020 Permitted uses, Table A. Use Residential care facilities (serving seven or more persons) (defined: Section 21.04.300) p CUP X Ace 9.That Section 21.26.015 (Residential uses in the C-1 Neighborhood Commercial Zone) subsection D is amended to read follows: 21.26.015 Residential uses. D. Residential uses shall include low barrier navigation centers, group homes serving six or fewer persons and require state licensing including, but not limited to, residential care facilities (serving six or fewer persons), and group homes that do not require state licensing including, but limited to, supportive housing and transitional housing. April 5, 2023 Item #2 Page 17 of 96 I . 1-----1--1-lt-----tl 10.That Section 21.28.015 {Residential uses in the C-2 General Commercial Zone) subsection D is amended to read follows: 21.28.015 Residential uses. D.Residential uses shall include low barrier navigation centers, group homes serving six or fewer persons and require state licensing including, but not limited to, residential care facilities {serving six or fewer persons), and group homes that do not require state licensing including, but limited to, supportive housing and transitional housing. 11.That Section 21.31.015 (Residential uses in the C-L Local Shopping Center Zone) subsection D is amended to read follows: 21.31.065 Residential uses. D.Residential uses shall include low barrier navigation centers, group homes serving six or fewer persons and require state licensing including, but not limited to, residential care facilities (serving six or fewer persons), and group homes that do not require state licensing including, but limited to, supportive housing and transitional housing. 12.That Section 21.42.140 (Development standards and special regulations for Minor Conditional Use Permits and Conditional Use Permits) is amended by the addition of the following development standards for group homes: Section 21.42.140 (71) Group Homes (providing services to seven or more persons and requiring state licensing) a.Facilities shall comply with all the rules, regulations and standards required by the State Department of Social Services. b.Facilities shall meet current California Code of Regulations {Title 24) for occupancy, as defined. c.Facilities shall provide off-street parking as required in Chapter 21.44 of this title. d.Additional requirements and restrictions may be imposed as determined necessary by the decision­ making authority to ensure facilities meet the findings stated in Section 21.42.030. These requirements and restrictions may include provisions regarding but not limited to the following items: i.Hours of operation, such as for deliveries and other services; ii.Noise; iii.Lighting; April 5, 2023 Item #2 Page 18 of 96 .. -. • iv.Location and screening of parking, service, and other outdoor areas; v.Security; and/or vi.Loitering. 13.Table A of Section 21.44.020 (Number of off-street parking spaces required) is amended by the following parking standards for the new use listing: Use Number of Off-Street Parking Spaces Group homes (that: 1. Two Spaces per unit, provided as do not require state either: licensing, or 2. require *A Two-car garage (minimum interior 20 feet x 20 feet); state licensing to or provide services to six *Two Separate one-car garages (minimum interior 12 or fewer persons) feet x 20 feet each) Group homes (serving The number of required parking spaces shall be determined by the city planner and shall be based onseven or more persons the operating characteristics of a specific proposal,and requiring state licensing) including, but not limited to, number of: 1. Employees, Residential Uses 2.Beds, and 3. Service deliveries Two spaces per unit, provided as either: Residential care A two-car garage (minimum interior 20 feet x 20 feet); facilities (serving six or or fewer persons) Two separate one-car garages (minimum interior 12 feet x 20 feet each) The number of required parking spaces shall be Residential care determined by the city planner and shall be based on facilities (serving seven the operating characteristics of a specific proposal, or more persons) including, but not limited to, number of, 1. Employees, 2.Beds, and 3. Service deliveries EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the City Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the day of 2023, and thereafter ----� April 5, 2023 Item #2 Page 19 of 96 . PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the_ day of--� 2023, by the following vote, to wit: AYES: NAYS: ABSTAIN: ABSENT: APPROVED AS TO FORM AND LEGALITY: CINDIE K. McMAHON, City Attorney KEITH BLACKBURN, Mayor SHERRY FREISINGER, City Clerk (SEAL) April 5, 2023 Item #2 Page 20 of 96 Exhibit 2 ZCA2023-0002/LCPA 2023-0018 (DEV2023-0040) - ALTERNATIVE AND TEMPORARY HOUSING AMENDMENTS 2023 Draft revisions to the Carlsbad Municipal Code 21 (Zone Code) Proposed amendments to Title 21 of the Carlsbad Municipal Code 1.Chapter 21.04 “definitions” Sections 21.04.055 and 21.04.140.5, are proposed to be amended as follows: 21.04.055 Boardinghouse. “Boardinghouse” means a building with more than four guest rooms where lodging and meals are provided for compensation but does not include rest homes, bed and breakfast uses, employee housing, convalescent homes, or group homes. 21.04.140.5 Emergency shelter. “Emergency shelter” means year-round housing with minimal supportive services for homeless persons or families with occupancy limited to six months or less by homeless persons. An Emergency Shelter can also be inclusive of the interim interventions of navigation center, bridge housing, and respite or recuperative care (defined in Government Code 65583 (a)(4)(C), as of January 1, 2023) and as a Low Barrier Navigation Center defined in CMC 21.04.264. 2.Chapter 21.04 “definitions” Sections 21.04.163 and 21.04.264 are proposed to be added as follows: CMC 21.04.163 Group Homes. “Group homes” means housing being used as a supportive living environment shared and used by persons who are considered handicapped under state or federal law. Group Homes may serve children, the elderly or chronically ill, mentally disabled individuals, or adults recovering from or being treated for alcohol or drug addiction. A group home operated by a single operator or service provider (whether licensed or unlicensed) can include residential care facilities, supportive housing, transitional housing and other similar communal housing facilities but does not include boardinghouses. A group home April 5, 2023 Item #2 Page 21 of 96 Exhibit 2 that does not require state licensing or does require state licensing but serves six or fewer persons, is a residential use and is subject to only those restrictions that apply to other residential uses of the same type in the same zone. 21.04.264 Low Barrier Navigation Center. “Low Barrier Navigation Center” means any housing first shelter focused on moving people into permanent housing that provides temporary living facilities as outlined in Government Code 65660 as of January 1, 2023. 3. The permitted use tables in each of the following sections for zones R-A, R-E, R-1, R-2, R- 3, R-P, R-T, R-W, RD-M and RMHP are proposed to be amended by the addition of group homes use as listed in the table below: 21.08.020 Permitted uses, Table A. 21.09.020 Permitted uses, Table A. 21.10.020 Permitted uses, Table A. 21.12.020 Permitted uses, Table A. 21.16.020 Permitted uses, Table A. 21.18.020 Permitted uses when the R-P Zone implements the “RMH” or “RH” General Plan Land Use Designations, Table B. 21.20.010 Permitted uses, Table A. 21.22.020 Permitted uses, Table A. 21.24.020 Permitted uses, Table A. 21.37.020 Permitted uses, Table A. Use P CUP Acc Group homes (serving six or fewer persons and requiring state licensing) (defined: Section 21.04.163) X Group homes (state licensing not required) (defined: Section 21.04.163) X Group homes (serving seven or more persons and requiring state licensing) (defined: Section 21.04.163) X 4. The permitted use tables in each of the following sections for zones C-1, C-2 and C-3 are proposed to be amended by the addition of the group homes (serving 7 or more persons and requiring state licensing) use listing: April 5, 2023 Item #2 Page 22 of 96 Exhibit 2 21.26.010 Permitted uses, Table A. 21.28.010 Permitted uses, Table A. 21.31.010 Permitted uses, Table A. Use P CUP Acc Group homes (serving seven or more persons and requiring state licensing) (defined: Section 21.04.163) X 5. The permitted use tables in each of the following sections for zones R-2, R-3, R-P, R-T, RD- M and RMHP are proposed to be amended by the addition of the Low Barrier Navigation Center use listing: Section 21.12.020 Permitted uses, Table A Section 21.16.020 Permitted uses, Table A Section 21.18.020 Permitted uses when the R-P Zone implements the “RMH” or “RH” General Plan Land Use Designations, Table B Section 21.20.020 Permitted uses, Table A Section 21.24.020 Permitted uses, Table A Section 21.37.020 Permitted uses, Table A Use P CUP Acc Low Barrier Navigation Center (defined: section 21.04.264) X 6. The permitted use tables in each of the following sections for zones R-A, R-E, R-1, R-2, R- 3, R-P, R-T, R-W, RD-M and RMHP, are proposed to be amended by the addition of the Residential care facilities (serving seven or more persons) use listing: 21.08.020 Permitted uses, Table A. 21.09.020 Permitted uses, Table A. 21.10.020 Permitted uses, Table A. 21.12.020 Permitted uses, Table A. 21.16.020 Permitted uses, Table A. 21.18.020 Permitted uses when the R-P Zone implements the “RMH” or “RH” General Plan Land Use Designations, Table B. 21.20.010 Permitted uses, Table A. 21.22.020 Permitted uses, Table A. 21.24.020 Permitted uses, Table A. 21.37.020 Permitted uses, Table A. April 5, 2023 Item #2 Page 23 of 96 I I I I Exhibit 2 Use P CUP Acc Residential care facilities (serving seven or more persons) (defined: Section 21.04.300) X 7. That Section 21.26.015 (Residential uses in the C-1 Neighborhood Commercial Zone) subsection D is proposed to be amended to read follows: 21.26.015 Residential uses. D. Residential uses shall include low barrier navigation centers, group homes serving six or fewer persons and require state licensing including, but not limited to, residential care facilities (serving six or fewer persons), and group homes that do not require state licensing including, but limited to, supportive housing and transitional housing. 8. That Section 21.28.015 (Residential uses in the C-2 General Commercial Zone) subsection D is proposed to be amended to read follows: 21.28.015 Residential uses. D. Residential uses shall include low barrier navigation centers, group homes serving six or fewer persons and require state licensing including, but not limited to, residential care facilities (serving six or fewer persons), and group homes that do not require state licensing including, but limited to, supportive housing and transitional housing. 9. That Section 21.31.015 (Residential uses in the C-L Local Shopping Center Zone) subsection D is proposed to be amended to read follows: 21.31.065 Residential uses. D. Residential uses shall include low barrier navigation centers, group homes serving six or fewer persons and require state licensing including, but not limited to, residential care April 5, 2023 Item #2 Page 24 of 96 I I -I I Exhibit 2 facilities (serving six or fewer persons), and group homes that do not require state licensing including, but limited to, supportive housing and transitional housing. 10. That Section 21.42.140 (Development standards and special regulations for Minor Conditional Use Permits and Conditional Use Permits) is proposed to be amended by the addition of the following development standards for Group Homes: Section 21.42.140 (71) Group Homes (providing services to seven or more persons and requiring state licensing) a. Facilities shall comply with all the rules, regulations and standards required by the State Department of Social Services. b. Facilities shall meet current California Code of Regulations (Title 24) for occupancy, as defined. c. Facilities shall provide off-street parking as required in Chapter 21.44 of this title. d. Additional requirements and restrictions may be imposed as determined necessary by the decision-making authority to ensure facilities meet the findings stated in Section 21.42.030. These requirements and restrictions may include provisions regarding but not limited to the following items: i. Hours of operation, such as for deliveries and other services; ii. Noise; iii. Lighting; iv. Location and screening of parking, service, and other outdoor areas; v. Security; and/or vi. Loitering. 11. Table A of Section 21.44.020 (Number of off-street parking spaces required) is proposed to be amended by the following parking standards for the new use listing: Use Number of Off-Street Parking Spaces Residential Uses Group homes (that: 1. do not require state licensing, or 2. require state licensing to provide services to six or fewer persons) Two Spaces per unit, provided as either: *A Two-car garage (minimum interior 20 feet x 20 feet); or *Two Separate one-car garages (minimum interior 12 feet x 20 feet each) April 5, 2023 Item #2 Page 25 of 96 Exhibit 2 Group homes (serving seven or more persons and requiring state licensing) The number of required parking spaces shall be determined by the city planner and shall be based on the operating characteristics of a specific proposal, including, but not limited to, number of: 1. Employees, 2. Beds, and 3. Service deliveries Residential care facilities (serving six or fewer persons) Two spaces per unit, provided as either: A two-car garage (minimum interior 20 feet x 20 feet); or Two separate one-car garages (minimum interior 12 feet x 20 feet each) Residential care facilities (serving seven or more persons) The number of required parking spaces shall be determined by the city planner and shall be based on the operating characteristics of a specific proposal, including, but not limited to, number of, 1. Employees, 2. Beds, and 3. Service deliveries April 5, 2023 Item #2 Page 26 of 96 RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS Housing Element Program 1.3g Review and amend the Carlsbad Zoning Ordinance to review and amend definitions and allowances of uses for the definition of: family, Employee Housing, Residential care facilities, Group Homes and/or Boardinghouses…to review regulations to be consistent with California Law for six or fewer residents including but not limited to Health and Safety Code Sections 17021.5 and 17021.6. Additionally, review and revise, as appropriate, requirements to allow group homes and residential care facilities in all residential zones for seven or more residents and ensure no constraint to housing for persons with disabilities. FAMILY NONE PROPOSED. Existing Definition: CMC Section 21.04.145 Family. "Family" means one or more persons living together in a dwelling unit, with common access to, and common use of all living, kitchen, and eating areas within the dwelling unit. Residents and operators of a residential care facility or employee housing serving six or fewer persons shall be considered a family for purposes of any zoning regulation relating to residential use of such facilities. State Law Requirement/Guidance: The state advises local jurisdictions to 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 Home Technical Advisory) Recommendation: No changes to the family definition are required. While the definition does state “Residents and operators of a residential care facility or employee housing serving six fewer persons shall be considered a family…” this language is used to ensure that these uses do not require additional regulations or restrictions other than those required of a single-family residence (i.e. additional state licensing, permits and/or permit fees). The family definition does not restrict other uses that consist of fewer or more Exhibit 3 April 5, 2023 Item #2 Page 27 of 96 RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS than six persons in a residential zone (i.e. residential care facilities, group homes, supportive housing and transitional housing). EMPLOYEE HOUSING NONE PROPOSED. Existing Definition CMC Section 21.04.140.6 Employee housing, small. Pursuant to Cal. Health and Safety Code§ 17008, employee housing, small means any portion of any housing accommodation, or property upon which a housing accommodation is located, maintained in connection with any work or place where work is being performed, whether or not rent is involved, where such housing provides accommodations for six or fewer persons. No definition is provided for “employee housing, large.” State Law Requirement/Guidance: GC Section 17021.5. (a) Any employee housing which has qualified, or is intended to qualify, for a permit to operate pursuant to this part may invoke the provisions of this section. (b) Any employee housing providing accommodations for six or fewer employees shall be deemed a single-family structure with a residential land use designation for the purposes of this section. For the purpose of all local ordinances, employee housing shall not be included within the definition of a boarding house, rooming house, hotel, dormitory, or other similar term that implies that the employee housing is a business run for profit or differs in any other way from a family dwelling. No conditional use permit, zoning variance, or other zoning clearance shall be required of employee housing that serves six or fewer employees that is not required of a family dwelling of the same type in the same zone. Use of a family dwelling for purposes of employee housing serving six or fewer persons shall not constitute a change of occupancy for purposes of Part 1.5 (commencing with Section 17910) or local building codes. Exhibit 3 April 5, 2023 Item #2 Page 28 of 96 RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS (c) Except as otherwise provided in this part, employee housing that serves six or fewer employees shall not be subject to any business taxes, local registration fees, use permit fees, or other fees to which other family dwellings of the same type in the same zone are not likewise subject. Health and Safety Code Sections 17021.5 and 17021.6. Recommendation: No changes are recommended. Employee Housing (serving six or fewer persons) are defined as a family (CMC 21.04.145) and therefore is subject to only those restrictions that apply to other residential uses of the same type in the same zone. It is also listed as a permitted use in all 9 residential zones: R- A, R-E, R-1, R-2, R-3, R-P, R-T, R-W, RD-M and RMHP. Lastly, it is not included in the definition of a boarding house, rooming house, hotel or dormitory. RESIDENTIAL CARE FACILITIES 10. The permitted use tables in each of the following sections for zones R-A, R-E, R-1, R-2, R-3, R-P, R-T, R-W, RD-M and RMHP, are amended by the addition of the new use listing as shown below: The permitted use tables in each of the following sections are amended by the addition of the new use listing as shown below: 21.08.020 Permitted uses, Table A. 21.09.020 Permitted uses, Table A. 21.10.020 Permitted uses, Table A. 21.12.020 Permitted uses, Table A. 21.16.020 Permitted uses, Table A. 21.18.020 Permitted uses when the R-P Zone implements the “RMH” or “RH” General Plan Land Use Designations, Table B. 21.20.010 Permitted uses, Table A. 21.22.020 Permitted uses, Table A. 21.24.020 Permitted uses, Table A. Existing Definition: CMC Section 21.04.300 Residential care facility. “Residential care facility” means any family home, group care facility, or similar facility, licensed by the State of California, for twenty-four hour nonmedical care of persons in need of personal services, supervision or assistance essential for sustaining the activities of daily living or for the protection of the individual as provided in Section 1502 of the California Health and Safety Code. (Ord. CS-191 § II, 2012; Ord. 9455 § 1, 1976; Ord. 9060 § 259) State Law Requirement/Guidance: HCD Compliance Letter to City of Carlsbad dated July 13, 2021, states: Group Homes for Seven or More: The element notes that group homes for seven or more persons (also referred to as large residential care facilities) are permitted differently than groups homes for six or fewer persons and are conditionally permitted in only a few zones (pg. 167). Additionally, the element notes that residential care facilities must provide one parking space for every three beds. HCD finds the permitting and parking requirements to Exhibit 3 April 5, 2023 Item #2 Page 29 of 96 RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS 21.37.020 Permitted uses, Table A. Use P CUP Acc Residential Care Facilities (serving seven or more persons) X Parking Standards Updated within Table A of Section 21.44.020, the number of off-street parking spaces for the Residential Care Facility use is amended as follows: Use Number of Off-Street Parking Spaces Residential Uses Residential care facilities (serving six or fewer persons) • Two spaces per unit, provided as either: A two-car garage (minimum interior 20 feet x 20 feet); or • Two separate one-car garages (minimum interior 12 feet x 20 feet each) Residential care facilities (serving seven or more persons) The number of required parking spaces shall be determined by the city planner and shall be based on the operating characteristics of a specific proposal, including, but not limited to, number of: 1. Employees, 2. Beds, and 3. Service deliveries be constraints for developing and providing access to housing for persons with disabilities [emphasis added]. As such, the City must implement Program 1.3 (Alternative Housing), objective g: to review and amend the Carlsbad zoning ordinance or allow group homes of seven or more in the same manner as group homes of six or fewer; allow group homes in all residential zones; and remove constraints, including parking constraints, to housing for persons with disabilities by April 2023. GC Section 65583(a)(5) requires, “…local efforts to remove governmental constraints that hinder the locality from meeting its share of the regional housing need in accordance with Section 65584 and from meeting the need for housing for persons with disabilities, supportive housing, transitional housing, and emergency shelters identified pursuant to paragraph (7).” Recommendation: No changes to the definition, however changes are recommended to allow this use (when serving seven or more persons) in additional residential zones subject to a CUP, and to add new parking standards, separate from RCFs with six or fewer persons, are also recommended to comply with HCD’s direction to staff for compliance. Residential Care Facilities for six or fewer persons is listed as a permitted use in all residential zones however it is only listed as a permitted use subject to the approval of a CUP in three zones (R-3, R-P and RD-M). To comply with the state’s requirements, the city is proposing to amend the permitted use table in all residentials zones to allow for large RCFs in all residential zones subject to approval of a CUP. Additionally, staff is proposing to amend the zoning ordinance to provide less restrictive parking requirements for RCFs serving seven or more persons based on the proposed operations. Exhibit 3 April 5, 2023 Item #2 Page 30 of 96 I I I I I RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS GROUP HOMES CMC 21.04.XXX Group Homes. “Group Homes” means housing being used as a supportive living environment shared and used by persons who are considered handicapped under state or federal law. Group Homes may serve children, the elderly or chronically ill, mentally disabled individuals, or adults recovering from or being treated for alcohol or drug addiction. A group home operated by a single operator or service provider (whether licensed or unlicensed) can include residential care facilities, supportive housing, transitional housing and other similar communal housing facilities but does not include boardinghouses. A group home that does not require state licensing or does require state licensing but serves six or fewer persons, is a residential use and is subject to only those restrictions that apply to other residential uses of the same type in the same zone. The permitted use tables in each of the following sections for zones R-A, R-E, R- 1, R-2, R-3, R-P, R-T, R-W, RD-M and RMHP are amended by the addition of the new use listing as shown below: 21.08.020 Permitted uses, Table A. 21.09.020 Permitted uses, Table A. 21.10.020 Permitted uses, Table A. 21.12.020 Permitted uses, Table A. 21.16.020 Permitted uses, Table A. 21.18.020 Permitted uses when the R-P Zone implements the “RMH” or “RH” General Plan Land Use Designations, Table B. 21.20.010 Permitted uses, Table A. 21.22.020 Permitted uses, Table A. 21.24.020 Permitted uses, Table A. 21.37.020 Permitted uses, Table A. Use P CUP Acc Existing Definition There is no definition of group homes in the CMC. State Law Requirement/Guidance: Group Homes is generally defined as: “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.” Group homes can be licensed or unlicensed. Unlicensed facilities include supportive housing, transitional housing and recovery/sober living residences that do not provide alcoholism or drug addiction recovery/treatment services or can include other similar unlicensed group homes that only provide support and limited services to residence. Licensed group homes can include residential care facilities, alcohol and drug addiction facilities, or similar facility that require more extensive care and supervision for persons considered handicapped under state or federal law (HCD Group Home Technical Advisory). Large group homes that require state licensing can be subject to the approval of a Conditional Use Permit and include development standards as deemed necessary. Recommendation: Add new definition for group homes to ensure these uses are allowed in residential areas. Allow group homes in all residential zones, including mixed-use zones, to ensure the city’s zoning regulations do not constrain the group home’s target population (i.e. persons considered handicapped under state or federal law) but need access to a group home in a residential area. Specifically, allow group homes that do not require state licensing, regardless of number of persons served (including but not limited to supportive housing and Exhibit 3 April 5, 2023 Item #2 Page 31 of 96 I I I I I RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS Group Homes (that do not require state licensing regardless of number of persons served) X Group Homes (serving six or fewer persons and that do require state licensing) X Group Homes (serving seven or more persons and that do require state licensing) X The permitted use tables in each of the following sections for zones C-1, C-2 and C-3 are amended by the addition of the new Group Homes use listing as shown below: 21.26.010 Permitted uses, Table A. 21.28.010 Permitted uses, Table A. 21.31.010 Permitted uses, Table A. Use P CUP Acc Group Homes (serving seven or more persons and that do require state licensing) X The following sections are amended by the addition of the new residential use listing as shown below: 21.26.015(D) 21.28.015(D) 21.31.015(D) D. Residential uses shall include Group Homes serving six or fewer persons and require state licensing including but not limited to residential care facilities transitional housing) or do require state licensing but only serve 6 persons or less (including but not limited to residential care facilities serving 6 or fewer persons), to be permitted in residential zones as a residential use and therefore subject to only those restrictions that apply to other residential uses of the same type in the same zone. Allow group homes that require state licensing and serve 7 or more persons in residential zones and mixed use zones but subject to approval of a conditional use permit (including but not limited to large residential care facilities that serve seven or more persons.) Also include new development standards and parking standards for this new pursuant to the approval of a Conditional Use Permit. Exhibit 3 April 5, 2023 Item #2 Page 32 of 96 RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS (serving six or fewer persons), and Group Homes that do not require state licensing including but limited to supportive housing and transitional housing. Amend CMC Section 21.42 “Minor Conditional Use Permit and Conditional Use Permit,” to include new development standards for Group Homes requiring state licensing similar to residential care facilities: 21.42.140 (71) Group Homes (providing services to seven or more persons and require state licensing) a. Facilities shall comply with all the rules, regulations and standards required by the State Department of Social Services. b. Facilities shall meet current California Code of Regulations (Title 24) for occupancy, as defined. c. Facilities shall provide off-street parking as required in Chapter 21.44 of this title. d. Additional requirements and restrictions may be imposed as determined necessary by the decision-making authority to ensure facilities meet the findings stated in Section 21.42.030. These requirements and restrictions may include provisions regarding but not limited to the following items: i. Hours of operation, such as for deliveries and other services; ii. Noise; iii. Lighting; iv. Location and screening of parking, service, and other outdoor areas; v. Security; vi. Loitering. Incorporate new Parking Standards as described below within Table A of Section 21.44.020, for the number of off-street parking spaces for Group Home use: Exhibit 3 April 5, 2023 Item #2 Page 33 of 96 RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS Use Number of Off-Street Parking Spaces Residential Uses Group Homes (that: 1. do not require state licensing, or 2. require state licensing to provide services to six or fewer persons) Two Spaces per unit, provided as either: * A Two-car garage (minimum interior 20 feet x 20 feet); or *Two Separate one-car garages (minimum interior 12 feet x 20 feet each) Group Homes (that require state licensing to provide services to seven or more persons) The number of required parking spaces shall be determined by the city planner and shall be based on the operating characteristics of a specific proposal, including, but not limited to, number of: 1. Employees, 2. Beds, and 3. Service deliveries. BOARDING HOUSES CMC Section 21.04.055 Boardinghouse. “Boardinghouse” means a building with more than four guest rooms where lodging and meals are provided for compensation but does not include rest homes, bed and breakfast uses, employee housing, or convalescent homes or Group Homes. Existing Definition: CMC 21.04.055 Boardinghouse. “Boardinghouse” means a building with more than four guest rooms where lodging and meals are provided for compensation but does not include rest homes or convalescent homes. Requirement/Guidance: In general, localities should avoid equating 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. Currently Boarding Houses are only permitted in the R-P zone and can be used for farmworker housing complex, small. Exhibit 3 April 5, 2023 Item #2 Page 34 of 96 RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS Recommendation: Update Boardinghouse definition consistent with state law by explicitly excluding uses that are not comparable. EMERGENCY SHELTER 21.04.140.5 Emergency shelter. “Emergency shelter” means year-round housing with minimal supportive services for homeless persons or families with occupancy limited to six months or less by homeless persons. An Emergency Shelter can also be inclusive of the interim interventions of navigation center, bridge housing, and respite or recuperative care (defined in Government Code 65583 (a)(4)(C), as of January 1, 2023) and as a Low Barrier Navigation Center defined in CMC 21.04.264. Existing Definition: 21.04.140.5 Emergency shelter. “Emergency shelter” means year-round housing with minimal supportive services for homeless persons or families with occupancy limited to six months or less by homeless persons. Requirement/Guidance: Updates to state law require that emergency shelters definition is broadened to allow for “interim interventions, including, but not limited to, a navigation center, bridge housing, and respite or recuperative care.” (Gov Code 65583 (a)(4)(C). Additionally, the proposed amendments to the definition of Emergency Shelter and broadening the application to allow these uses and include low barrier navigation centers consistent with Gov Code 65660. Recommendation: Revise definition consistent with state law. LOW BARRIER NAVIGATION CENTER 21.04.264 Low Barrier Navigation Center. “Low Barrier Navigation Center” means any housing first shelter focused on moving people into permanent housing that provides temporary living facilities as outlined in Government Code 65660 as of January 1, 2023. Existing Definition: There is no definition for “low barrier navigation center.” Requirement/Guidance: Updates to state law require cities to permit Low Barrier Navigation Centers (Gov Code Section 65660). These are shelters that have additional requirements and regulations than emergency shelters to provide temporary housing but include case managers, health services, and a focus to move people into permanent housing. These uses must be permitted anywhere an Exhibit 3 April 5, 2023 Item #2 Page 35 of 96 RECOMMENDED CMC TEXT CHANGES CMC REGULATIONS ANALYSIS Emergency Shelter is allowed. Low Barrier Navigation Centers are allowed by-right in any areas zoned for mixed use and nonresidential zones permitting multifamily uses including C-1, C-2 and C-L. The use is also allowed in the following residential zones: R-2, R-3, R-P, R-T, RD-M and RMHP Recommendation: Staff Recommends adding new definition for Low Barrier Navigation Center. Additionally, add the new use listed as permitted in the R-2, R-3, R-P, R-T, RD- M and RMHP residential zones and in the nonresidential zones permitting multifamily uses (C-1, C-2, and C-L). Exhibit 3 April 5, 2023 Item #2 Page 36 of 96 ORDINANCE NO. CS-432 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA ADOPTING AMENDMENTS TO CARLSBAD MUNICIPAL CODE TITLE 15 (GRADING AND DRAINAGE ORDINANCE) AND TITLE 21 (ZONING ORDINANCE) TO COMPLETE VARIOUS MISCELLANEOUS CLEANUP AMENDMENTS TO THE CARLSBAD MUNICIPAL CODE. THE AMENDMENTS ALSO INCLUDE A LOCAL COASTAL PROGRAM AMENDMENT CASE NAME: CASE NO: 2022 ZONING ORDINANCE CLEANUP MCA2022-0004/ZCA2022-0002/LCPA 2022-0014 WHEREAS the City Planner has prepared amendments to the Carlsbad Municipal Code and Local Coastal Program (MCA 2022-0004/ZCA 2022-0002/LCPA 2022-0014)) pursuant to Chapter 21.52 of the Carlsbad Municipal Code, Section 30514 of the Public Resources Code, and Section 13551 of California Code of Regulations Title 14, Division 5.5; and WHEREAS the Carlsbad Municipal Code Title 21 (Zoning Ordinance) and Section 15.16 of Title 15 (Grading and Drainage Ordinance) are part of the Carlsbad Local Coastal Program Implementation Plan, and therefore, amendments to Title 21 and Section 15.16 also constitute amendments to the Local Coastal Program; and WHEREAS, pursuant to California Coastal Commission Regulations, a six-week public review period for the Local Coastal Program Amendment began May 20,2022 and ending on July 1, 2022; and WHEREAS, on June 10, 2022, the Airport land Use Commission reviewed and found that the proposed amendments are consistent with the adopted McClellan-Palomar Airport Land Use Compatibility Plan; and WHEREAS, on June 15, 2022, the Planning Commission held a duly noticed public hearing as prescribed by law to consider ZCA 2022-0002/LCPA 2022-0014; and WHEREAS the Planning Commission adopted Planning Commission Resolution No. 7452 recommending to the City Council that ZCA 2022-0002/LCPA 2022-0014 be approved; and WHEREAS the City Council of the City of Carlsbad held a duly noticed public hearing as prescribed by law to consider MCA2022-0004/ZCA 2022-0002/LCPA 2022-0014; and WHEREAS at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, the City Council considered all factors, including written public comments, if any, related to MCA2022-0004/ZCA 2022-0002/LCPA 2022-0014; and Exhibit 4 April 5, 2023 Item #2 Page 37 of 96 NOW, THEREFORE, the City Council of the City of Carlsbad, California, ordains as follows: 1.The above recitations are true and correct. 2.The findings of the Planning Commission in Planning Commission Resolution No. 7452 shall also constitute the findings of the City Council. 3.That Section 15.16.060 of the Carlsbad Municipal Code is amended as shown below: 15.16.060 Work exempt from grading permit. A.A grading permit shall not be required for the following: 1.Cemetery graves. 2.Refuse disposal sites controlled by other regulations. 3.Excavations for wells, tunnels, utilities, or swimming pools/spas. 4.Exploratory excavations under the direction of soil engineers or engineering geologists. 5.Clearing and grubbing of vegetation done for the purpose of routine landscape maintenance, the removal of dead or diseased trees or shrubs or the removal of vegetation done upon order of the fire marshal to eliminate a potential fire hazard or for the abatement of weeds. 6.Clearing and grubbing of vegetation done preparatory to agricultural operations on land which has been used for agricultural purposes within the previous five years. 7.Grading on a site where the city engineer finds that the following conditions exist: a.The amount of soil material moved does not exceed 200 cubic yards (excluding excavation for basements, foundations and footings); b.No fill material is placed on an existing slope steeper than five units horizontal to one vertical; c.No cut or fill material exceeds four feet in vertical depth at its deepest point, measured from the existing ground surface. 8.Grading in an isolated, self-contained area. 9.Grading associated with stem wall construction. 10.Retaining walls with a maximum height of 6 feet and the soil material moved does not to exceed 200 cubic yards. 4.That Chapter 21.04 of the Carlsbad Municipal Code is amended by the addition of a new section as shown below: 21.04.140.6 Employee housing, small. Pursuant to Cal. Health and Safety Code§ 17008, employee housing, small means any portion of any housing accommodation, or property upon which a housing accommodation is located, maintained in connection with any work or place where work is being performed, whether or not rent is involved, where such housing provides accommodations for six or fewer persons. 5.That Section 21.04.145 of the Carlsbad Municipal Code is amended as shown below: April 5, 2023 Item #2 Page 38 of 96 21.04.145 Family. "Family" means one or more persons living together in a dwelling unit, with common access to, and common use of all living, kitchen, and eating areas within the dwelling unit. Residents and operators of a residential care facility or employee housing serving six or fewer persons shall be considered a family for purposes of any zoning regulation relating to residential use of such facilities. 6.That Section 21.04.147 of the Carlsbad Municipal Code is amended as shown below: 21.04.147 Family day care home, large. "Large family day care home" means a dwelling which provides family day care for seven to fourteen children, inclusive, including children under the age of ten years who reside at the home as defined by Section 1596.78 of the California Health and Safety Code and permitted by the licensing agency. 7.That Section 21.04.148 of the Carlsbad Municipal Code is amended as shown below: 21.04.148 Family day care home, small. "Small family day care home" means a dwelling which provides family day care for eight or fewer children, including children under the age of ten years who reside at the home as defined in Section 1596. 78 of the California Health and Safety Code and permitted by the licensing agency. 8.That Section 21.04.281 of the Carlsbad Municipal Code is amended as shown below: 21.04.281 Nonconforming residential use. "Nonconforming residential use" means a residential use which was lawfully established and maintained, but which exceeds the maximum density range of the underlying general plan land use designation. 9.That Chapter 21.04 of the Carlsbad Municipal Code is amended by the addition of a new section as shown below: 21.04.291.1 Personal services. "Personal Services" means uses that include but are not limited to dry cleaners, beauty and barber shops, day spas, cosmetic services, nail salons, shoe/garment repair, massage therapy, etc. 10.That Chapter 21.04 of the Carlsbad Municipal Code is amended by the addition of a new section as shown below: April 5, 2023 Item #2 Page 39 of 96 21.04.305.5 Small wireless facilities. Small wireless facilities (SWF), consistent with FCC regulations in 47 C.F.R. §§ 1.6002(1), are wireless communication facilities that meet each of the following conditions: A.The facilities- 1.Are mounted on structures 50 feet or less in height including their antennas as defined in section l.1320(d), or 2.Are mounted on structures no more than 10 percent taller than other adjacent structures, or 3.Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; B.Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in section 1.1320(d)), is no more than three cubic feet in volume; C.All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; D.The facilities do not require antenna structure registration under 47 CFR Part 17; E.The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and F.The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in section 1.1307(b). 11.The permitted use tables in each of the following sections are amended by the addition of the new use listing as shown below: 21.08.020 Permitted uses, Table A. 21.09.020 Permitted uses, Table A. 21.10.020 Permitted uses, Table A. 21.12.020 Permitted uses, Table A. 21.16.020 Permitted uses, Table A. 21.18.020 Permitted uses, Table B. 21.20.010 Permitted uses, Table A. 21.22.020 Permitted uses, Table A. 21.24.020 Permitted uses, Table A. 21.37.020 Permitted uses, Table A. Use Employee housing (serving six or fewer persons) p CUP Ace X April 5, 2023 Item #2 Page 40 of 96 12.That Section 21.10.050 of the Carlsbad Municipal Code is amended as shown below: 21.10.050 Building height. In the R-1 zone no building shall exceed a height of thirty feet and two stories if a minimum roof pitch of 3:12 is provided or twenty-four feet and two stories if less than a 3:12 roof pitch is provided for lots under twenty thousand square feet. Single-family residences on lots with a lot area of twenty thousand square feet or greater and within a R-1 zone and specifying a -20 or greater area zoning symbol shall not exceed thirty-five feet and three stories with a minimum roof pitch of 3:12 provided, or twenty-nine feet and three stories if less than a 3:12 roof pitch is provided. 13.That the following sections of the Carlsbad Municipal Code are amended as shown below: 21.08.060 Placement of buildings 21.10.080 Placement of buildings 21.12.060 Placement of buildings 21.16.060 Placement of buildings A.Placement of buildings on any lot shall conform to the following, except as otherwise permitted for accessory dwelling units (or junior accessory dwelling units where permitted) pursuant to Section 21.10.030: 1.Interior Lots. a.No building shall occupy any portion of a required yard; b.Any building, any portion of which is used for human habitation, shall observe a distance from any side lot line the equivalent of the required side yard on such lot and from the rear property line the equivalent of twice the required side yard on such lot; c.All accessory structures shall comply with the following development standards: i.The lot coverage shall include accessory structures in the lot coverage calculations for the lot, ii.When proposed on a lot adjoining native vegetation, accessory structures within a fire suppression zone must be reviewed and approved by the fire department, iii.Buildings shall not exceed one story, iv.Building height shall not exceed fourteen feet if a minimum roof pitch of 3:12 is provided or ten feet if less than a 3:12 roof pitch is provided; d.Habitable detached accessory structures shall comply with all requirements of the zone applicable to placement of a dwelling unit on a lot including setbacks; e.Detached accessory structures which are not dwelling units and contain no habitable space, including, but not limited to, garages, workshops, tool sheds, decks over thirty inches above grade and freestanding patio covers shall comply with the following additional development standards when located within a lot's required setback areas: April 5, 2023 Item #2 Page 41 of 96 i.The maximum allowable building area per structure shall not exceed a building coverage of four hundred forty square feet, ii.The following setbacks shall apply: a front yard setback of twenty feet, a rear yard setback of five feet, a side yard setback of five feet and an alley setback of five feet, iii.The maximum plumbing drain size shall be one and one-half inches in diameter so as to prohibit toilets, showers, bathtubs and other similar fixtures, iv.The additional development standards listed above (subsections (A)(l)(g)(i) through (iii) of this section) shall apply to the entire subject accessory structure, not just the portion encroaching into a lot's setback area; and f.The provisions of this section are applicable notwithstanding the permit requirements contained in Section 18.04.015. 2.Corner Lots and Reversed Corner Lots. a.No building shall occupy any portion of a required yard; b.Any building, any portion of which is used for human habitation, shall observe a distance from the rear property line the equivalent of twice the required interior side yard on such lot; c.All accessory structures shall comply with the following development standards: i.The lot coverage shall include accessory structures in the lot coverage calculations for the lot, ii.When proposed on a lot adjoining native vegetation, accessory structures within a fire suppression zone must be reviewed and approved by the fire department, iii.Buildings shall not exceed one story, iv.Building height shall not exceed fourteen feet if a minimum roof pitch of 3:12 is provided or ten feet if less than a 3:12 roof pitch is provided; d.Habitable detached accessory structures shall comply with all requirements of the zone applicable to placement of a dwelling unit on a lot including setbacks; e.Detached accessory structures which are not dwelling units and contain no habitable space, including, but not limited to, garages, workshops, tool sheds, decks over thirty inches above grade and freestanding patio covers shall comply with the following additional development standards when located within a lot's required setback areas: i.The maximum allowable building area per structure shall not exceed a building coverage of four hundred forty square feet, ii.The following setbacks shall apply: a front yard setback of twenty feet, a rear yard setback of five feet, a side yard setback of five feet, a street side yard setback of five feet and an alley setback of five feet, iii.The maximum plumbing drain size shall be one and one-half inches in diameter so as to prohibit toilets, showers, bathtubs and other similar fixtures, April 5, 2023 Item #2 Page 42 of 96 iv.The additional development standards listed above (subsections (A)(2)(g)(i) through (iii) of this section) shall apply to the entire subject accessory structure, not just the portion encroaching into a lot's setback area; and f.The provisions of this section are applicable notwithstanding the permit requirements contained in Section 18.04.015. 14.That Table A of Section 21.18.020 is amended by the addition of a new use listing for "Personal services ... " as shown below, and by the deletion of the use listing for "Services, provided directly to consumers ... ": Use Personal services (defined: section 21.04.291.1) Use 15.That Table A of Section 21.26.010 is amended to read as follows: Accountants Adult and/or senior daycare and/or recreation facility (private/non-private) Alcoholic treatment centers Amusement parks Arcades-coin-operated (subject to Section 21.42.140(B)(15); defined: Section 21.04.091) Athletic clubs, gymnasiums, health clubs, and physical conditioning businesses Attorneys Banks and other financial institutions without drive-thru facilities Bakeries Biological habitat preserve (subject to Section 21.42.140(B)(30); defined: Section 21.04.048) Book or stationery stores Child day care centers, subject to the provisions of Chapter 21.83 of this title Churches, synagogues, temples, convents, monasteries, and other places of worship Clubs-nonprofit, business, civic, professional, etc. (defined: Section 21.04.090) Columbariums, crematories, and mausoleums (not within a cemetery) Delicatessen (defined: Section 21.04.106) Doctors, dentists, optometrists, chiropractors and others practicing the healing arts for human beings, and related uses such as oculists, pharmacies (prescription only), biochemical laboratories and x-ray laboratories Dressmaking or millinery shops Drive-thru facility (not restaurants) Drugstores Dry goods or notion stores Educational facilities, other (defined: Section 21.04.137) Educational institutions or schools, public/private (defined: Section 21.04.140) p p X X X X X X X X X X X X X CUP Ace 1 CUP Ace 1 2 3 1 2 2 1 2 1 2 April 5, 2023 Item #2 Page 43 of 96 ' Use p CUP Ace Engineers, architects and planners X Fairgrounds 3 Farmworker housing complex, small (subject to Section 21.10.125; defined: 1 Section 21.04.148.4) Florist shops X Fortunetellers, as defined in Section 5.50.010 X Gas stations (subject to Section 21.42.140(8)(65)) 2 Greenhouses> 2,000 square feet (subject to Section 21.42.140(8)(70)) 1 Grocery or fruit stores X Hardware stores X Hospitals (defined: Section 21.04.170) 2 Hospitals (mental) (defined: Section 21.04.175) 2 Hotels and motels (subject to Section 21.42.140(8)(80)) 3 Institutions of a philanthropic or eleemosynary nature, except correctional or mental X Jewelry stores X Laundries or clothes cleaning agencies X Liquor store (subject to Section 21.42.140(8)(85); defined: Section 21.04.203) 2 Meat markets X Mobile buildings (subject to Section 21.42.140(8)(90); defined: Section 21.04.265) 1 Outdoor dining (incidental) (subject to Section 21.26.013; defined: Section 21.04.290.1) X Packing/sorting sheds> 600 square feet (subject to Section 21.42.140(8)(70)) 1 Paint stores X Parking facilities (primary use) (i.e., day use, short-term, nonstorage) 1 Pawnshops (subject to Section 21.42.140(8)(105)) 3 Personal services (defined: section 21.04.291.1) X Pet supply shops X Pool halls, billiards parlors (subject to Section 21.42.140(8)(110); defined: 2 Section 21.04.292) Private clubs, fraternities, sororities and lodges, excepting those the chief activity of X which is a service customarily carried on as a business Public meeting halls, exhibit halls, and museums 2 Public/quasi-public buildings and facilities and accessory utility buildings/facilities 2 (defined: Section 21.04.297) Racetracks 3 Radio/television/microwave/broadcast station/tower 2 Realtors X Recreation facilities 1 Recycling collection facilities, large (subject to Chapter 21.105 of this title; defined: 2 Section 21.105.015) Recycling collection facilities, small (subject to Chapter 21.105 of this title; defined: 1 Section 21.105.015) Religious reading room (separate from church) 1 Residential uses (subject to Section 21.26.015 of this title) X Restaurants (bona fide public eating establishment) (defined: Section 21.04.056) X Restaurants (excluding drive-thru restaurants), tea rooms or cafes (excluding dancing or X entertainment and on-sale liquor) April 5, 2023 Item #2 Page 44 of 96 Use p CUP Ace Satellite television antennae (subject to Section 21.53.130-21.53.150; defined: X Section 21.04.302) Shoe, clothing or wearing apparel stores X Signs (subject to Chapter 21.41) X Stadiums 3 Tattoo parlors (subject to Section 21.42.140(8)(140)) 3 Theaters (motion picture or live) -Indoor 2 Theaters, stages, amphitheaters - Outdoor 3 Thrift shops (subject to Section 21.42.140(8)(150)) 1 Transit passenger terminals (bus and train) 2 Veterinary clinic/animal hospital (small animals) (defined: Section 21.04.378) 1 Welfare and charitable service (private or semi-private) with no permanent residential 1 uses (i.e., Goodwill, Red Cross, Traveler's Aid) Windmills (exceeding height limit of zone) (subject to Section 21.42.140(8)(160)) 2 Wireless communication facilities (subject to Section 21.42.140{8)(165); defined: 1/2 Section 21.04.379) Youth organizations (e.g., Boy Scouts, Girl Scouts, Boys and Girls Clubs, YMCA, YWCA, 1 except lodgings) Note: 1.Any use meeting the definition of an entertainment establishment, as defined in Section 8.09.020 of the Carlsbad Municipal Code (CMC), shall be subject to the requirements of CMC Chapter 8.09. Use 16.That Table A of Section 21.28.010 is amended by the addition of a new use listing for "Personal services ... " as shown below: p CUP Ace Personal services (defined: section 21.04.291.1) X Use 17.That Table A of Section 21.29.030 is amended by the addition of a new use listing for "Personal services ... " as shown below, and by the deletion of the use listing for "Services (personal), limited to ... ": p CUP Ace Personal services (defined: section 21.04.291.1) X Use 18.That Table A of Section 21.31.020 is amended by the addition of a new use listing for "Personal services ... " as shown below, and by the deletion of the use listing for "Services, provided directly to consumers ... ": p CUP Ace Personal services (defined: section 21.04.291.1) X April 5, 2023 Item #2 Page 45 of 96 19.That subsection A.1 of Section 21.31.060 is amended as shown below: 1.Required eating areas for employees (subject to Section 21.31.080(K)); 20.That Section 21.37.090 is amended as shown below: 21.37.090 Design criteria. A.The following design criteria shall apply to all mobile home parks to the extent permitted according to California Health and Safety Code §18200, et seq. and §18665 et seq., respectively: 1.The overall plan shall be comprehensive, embracing land, buildings for common use or park service and maintenance, landscaping and their interrelationships, and shall conform to adopted plans for all governmental agencies for the area in which the proposed development is located; 2.The plan shall provide for adequate circulation, off-street parking, open recreational areas and other pertinent amenities. Buildings, structures and facilities for common use in the park or for service and maintenance of the park shall be well integrated, oriented and related to the topographic and natural landscape features of the site; 3.The proposed development shall be compatible with existing and planned land use and with circulation patterns on adjoining properties. It shall not constitute a disruptive element to the neighborhood or community; and 4.Common areas and recreational facilities shall be located so as to be readily accessible to the occupants of the dwelling units and shall be well related to any common open spaces provided. 21.That Section 21.37.100 is amended as shown below: 21.37.100 Development standards. A.A mobile home park shall comply with the following development standards and any applicable standards under state law: 1.A mobile home park shall be not less than five acres for a condominium or planned unit development park and fifteen acres for a rental park; 2.Parking shall be provided subject to the provisions of Chapter 21.44 of this title; 3.Mobile home park streets shall be provided in such a pattern as to provide convenient traffic circulation within the mobile home park. Such streets shall be built to the following standards: a.No roadway shall be less than thirty-four feet in width, b.There shall be concrete curbs on each side of the streets, c.The mobile home park streets shall be paved according to standards established by the city engineer, d.Mobile home park streets shall be lighted in accordance with the standards established by the city engineer; April 5, 2023 Item #2 Page 46 of 96 Use 4.The city council may permit decentralization of the recreational facilities in accordance with principles of good planning; 5.Common trash-bin enclosures shall be provided. They shall be of masonry construction and compatible with the mobile home park; 6.Service buildings and facilities shall be strategically located throughout the park for convenient access from mobile homes. No service building shall be closer than twenty feet to any property adjacent to the mobile home park; 7.Mobile home parks shall be enclosed by solid masonry fences, six feet in height, subject to city planner approval, along dedicated street frontages; and 8.All new mobile homes shall bear a valid insignia of approval issued by the State Department of Housing and Community Development. 22.That within Table A of Section 21.44.020, the number of off-street parking spaces for the Residential Care Facility use is amended as follows: Number of Off-Street Parking Spaces Residential Uses Residential Care Two spaces per unit, provided as either: Facilities •A two-car garage (minimum interior 20 feet x 20 feet); or•Two separate one-car garages (minimum interior 12 feet x 20feet each); 23.That Section 21.42.110 of the Carlsbad Municipal Code is amended as shown below: 21.42.110 Expiration, extensions and amendments. A.Expiration of Permit if Not Exercised. The expiration period for an approved minor conditional use permit or conditional use permit shall be as specified in Section 21.58.030 of this title. B.Extension of Permit if Not Exercised. The expiration period for an approved minor conditional use permit or conditional use permit may be extended pursuant to Section 21.58.040 of this title. C.Expiration of Permit. Such rights and privileges granted under a minor conditional use permit or conditional use permit shall also expire at such time as the city planner/planning commission/city council may designate in the approval of the minor conditional use permit or conditional use permit. D.All existing conditional use permits, which include an expiration date and a requirement to extend the permit, may be hereby approved administratively by the city planner in perpetuity without the requirement to extend the conditional use permit. E.An approved minor conditional use permit or conditional use permit may be amended pursuant to the provisions of Section 21.54.125 of this title. April 5, 2023 Item #2 Page 47 of 96 24.That Table F of Section 21.45.090 is amended as shown below: Table F Residential Additions and Accessory Uses to One-Family Dwellings and Twin-Homes on Small Lots Minimum Front Yard Minimum Side and Rear Addition/ Accessory Use Setback Yard Setbacks 10 feet to posts 5 feet to posts Attached/detached patio covers(2l (2-foot overhang (2-foot overhang permitted) permitted) Non-habitable detached accessory buildings/structures (e.g., garages, workshops, decks over 30 inches in 20 feet 5 feet height)(1l,(2L(3l Habitable detached accessory buildings (i.e. guest houses and accessory dwelling units)!2l, !3l, !4l Same setbacks as required for the primary dwelling Additions to dwelling (attached) Same setbacks as required for the dwelling Notes: (1)Maximum building height is 1 story and 14 feet with a 3:12 roof pitch or 10 feet with less than a 3:12 roof pitch. (2)Minimum 10-foot separation required between a habitable building and any other detached accessory building/structure. (3)Must be. architecturally compatible with the existing structure. (4)Except as otherwise permitted for accessory dwelling units pursuant to Section 21.10.030. 25.That Chapter 21.53 of the Carlsbad Municipal Code is amended by the addition of a new section as shown below: 21.53.260 Small wireless facilities {SWF). Small wireless facilities shall comply with City Council Policy Statement No. 64. An application for an SWF located on public or private property may be processed as a building permit, and an application for an SWF located within the public right-of-way of roads may be processed as a right-of-way permit pursuant to Title 11 of the Carlsbad Municipal Code. (b) 26.That subsection (b) of Section 21.53.230 of the Carlsbad Municipal Code is amended as shown below: Undevelopable Lands. (1)The following lands are undevelopable and shall be excluded from density calculation: (A)Beaches; (B) (C) (D) (E) (F) Permanent bodies of water; Floodways; Natural slopes with an inclination of greater than 40% except as permitted pursuant to Section 21.95.140.B of this code; Significant wetlands; Significant riparian or woodland habitats; April 5, 2023 Item #2 Page 48 of 96 (G)Land subject to major power transmission easements; (H)Railroad track beds; (2)The following lands are undevelopable but may be included in density calculation, unless such lands meet any of the criteria listed Section 21.53.230(b)(1). (A)Land upon which other significant environmental features as determined by the environmental review process for a project are located; (B)Hardlined habitat preserve areas as identified in the Carlsbad Habitat Management Plan. 27.That subsection C of Section 21.54.125 is amended as follows: C.If an approved development permit was issued pursuant to the provisions of Section 21.54.040 of this title, any amendment to said permit shall be acted on by the decision-making authority that approved the original permit, except that if the city council approved the original permit, the planning commission shall have the authority to act upon the amendment. 28.That subsection F of Section 21.83.020 of the Carlsbad Municipal Code is amended as shown below: F."Family day care home" means a dwelling which regularly provides non medical care, protection, and supervision of fourteen or fewer children, in the provider's own home, for periods of less than twenty-four hours per day, while the parents or guardians are away. The actual number of children permitted in a family day care home is based on age composition as determined by the permitting agency. Family day care homes include either of the following: 1."Large family day care home," means a dwelling which provides family day care for seven to fourteen children, inclusive, including children under the age of ten years who reside at the home as defined in Section 1596. 78 of the California Health and Safety Code and as permitted by the licensing agency; 2."Small family day care home," means a dwelling which provides family day care for eight or fewer children, including children under the age of ten years who reside at the home as defined in Section 1596.78 of the California Health and Safety Code and as permitted by the licensing agency. 29.That Section 21.83.040 of the Carlsbad Municipal Code is amended as shown below: 21.83.040 Use chart. The following use chart indicates the zones where small and large family day care homes and child day care centers are permitted, subject to the requirements of this chapter. "P" indicates that the use is permitted in the zone. "MCUP" indicates that the use is permitted subject to approval of a minor conditional use permit (process one) processed in accordance with Chapter 21.42 of this title. April 5, 2023 Item #2 Page 49 of 96 "CUP" indicates that the use is permitted subject to approval of a conditional use permit (process two) processed in accordance with Chapter 21.42 of this title. "X" indicates that the use is prohibited in the zone. Small Family Day Care Large Family Day Care Home (8 or fewer Home (14 or fewer Zoning children) children) Child Day Care Center R-A, R-E, E-A p p X R-1 p p X R-2 p p X R-3, RD-M, R-P p p MCUP(1)(2) R-T, R-W, RMHP p p X 0 X X MCUP(1)(2) H-0 X X P{l) C-F X X MCUP(1)(2) C-1, C-2, C-L X X P(l) P-M, C-M X X CUP(4) M, P-U, 0-5, L-C, T-C, C-T X X X V-8, P-C (3) (3) (1)(2)(3) Notes: (1)Permitted subject to the provisions of Section 21.83.080 of this chapter. (2)Child day care centers are allowed as a permitted use (no conditional use permit or minor conditional use permit required) within existing buildings on developed church or school sites, subject to the provisions of Section 21.83.080 of this chapter. (3)Permitted subject to the standards of the controlling document (Village and Barrio master plan or designated master plan). (4)Permitted subject to the provisions of Sections 21.83.060 and 21.83.080 of this chapter. 30.That Section 21.83.050 is amended as shown below: 21.83.050 Requirements for large family day care homes. A.The applicant shall obtain all licenses and permits required by state law for operation of the facility and shall keep all state licenses or permits valid and current. B.Development Standards. 1.The facility shall comply with all zoning standards otherwise applicable to other residences, however, the use of a dwelling for the purposes of this section shall not constitute a change of occupancy for purposes of Title 18 of this code. 2.The facility shall comply with all standards relating to fire and life safety applicable to residences established by the state fire marshal contained in Title 24 of the California Code of Regulations as amended from time to time. 3.An outdoor play area which satisfies the requirements of the state, community care licensing division shall be provided in the rear yard and shall be enclosed by a natural barrier, wall, solid fence, or other solid structure a minimum of five feet in height. The provider shall ensure that outdoor play times do not begin until after nine a.m. and end before five p.m. The provider shall stagger the number of children playing outdoors at any one time to reduce noise impacts on surrounding residences. April 5, 2023 Item #2 Page 50 of 96 4.All outdoor play areas shall be adequately separated from vehicular circulation and parking areas by a strong fence such as chain link, wood or masonry. 5.Required garages shall be prohibited for use as a family day care home and shall be utilized for parking two of the applicant's onsite vehicles during the daily operation of the day care home rather than parking the vehicles on the street or in the driveway. 6.The applicant shall designate the onsite driveway as the official drop-off and pick-up area for children and shall notify parents of this requirement. Said driveway shall remain free and clear of parked cars. 7.The applicant shall require that employees park in locations which will not inconvenience nearby residents. To disrupt the neighborhood as little as possible, best efforts shall be made by the applicant to require employees to park as close as possible to the family day care home. 31.That subsection E.1.b of Section 21.210.070 is amended as shown below: b.HMP Permit. i.An application for a HMP permit may be approved, conditionally approved or denied by the planning commission or city council, as specified in Section 21.54.040 of this title. ii.The decision on a HMP permit shall be based upon the decision-making authority's review of the facts as set forth in the application, of the circumstances of the particular case, and evidence presented at the public hearing. iii.The decision-making authority shall hear the matter and may approve or conditionally approve the HMP permit if all of the findings of fact in subsection F of this section are found to exist. 32.That the following list of sections are amended by the substitution of the 1994 General Plan Land Use designation titles with the updated titles from the 2015 General Plan as shown in the table below: 21.08.010 Intent and purpose 21.10.010 Intent and purpose. 21.12.010 Intent and purpose. 21.16.010 Intent and purpose. 21.18.010 Intent and purpose. 21.22.010 Intent and purpose. 21.24.010 Intent and purpose. 21.29.010 Intent and purpose. 21.43.020 Definitions. April 5, 2023 Item #2 Page 51 of 96 1994 General Plan 2015 Gelleral Plan Land Use Deslanatlon 11tles Land Use Deslanatlon Titles Residential Low Density (RL) R-1.5 (Residential 0-1.5 du/ac) Residential Low-Medium Density {RLM) R-4 (Residential 0-4 du/ac) Residential Medium Density (R-M) R-8 (Residential 4-8 du/ac) Residential Medium-High Density {RMH) R-15 {Residential 8-15 du/ac) Residential High Density (RH) R-23 (Residential 15-23 du/ac) Travel/Recreational Commercial {T-R) Visitor Commercial {V-C) 33.That the following list of sections are amended by the substitution of the 1994 General Plan Land Use designation labels with updated labels from the 2015 General Plan as shown in the table below: 21.08.070 Minimum lot area. 21.10.090 Minimum lot area. 21.18.020 Permitted uses. 21.24.020 Permitted uses. 21.24.100 Lot area. 21.45.040 Permitted zones and uses. 21.45.060 General development standards. 21.45.070 Development standards for one-family dwellings and twin-homes on small lots. 21.45.080 Development standards for condominium projects. 21.90.045 Growth management residential control point established. 1994 General Plan 2015 General Plan Land Use: -on Title Symbols Land Use-:--�--n Tltle Symbols RL R-1.5 RLM R-4 R-M R-8 RMH R-15 RH R-23 T-R V-C EFFECTIVE DATE OF THIS ORDINANCE APPLICABLE TO PROPERTIES OUSTIDE THE COASTAL ZONE: This ordinance shall be effective thirty days after its adoption; and the City Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. April 5, 2023 Item #2 Page 52 of 96 . ~ ·--:· ~-~·-•tJ EFFECTIVE DATE OF THIS ORDINANCE APPLICABLE TO PROPERTIES INSIDE THE COASTAL ZONE: This ordinance shall be effective thirty days after its adoption or upon Coastal Commission approval of LCPA 2022-0014, whichever occurs later; and the City Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the 13th day of September, 2022, and thereafter PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 27th day of September, 2022, by the following vote, to wit: AYES: NAYS: Hall, Blackburn, Bhat-Patel, Acosta, Norby. None. ABSENT: None. APPROVED AS TO FORM AND LEGALITY: U4idaL-� CINDIE McMAHON, CITY ATTORNEY MATT HALL, Mayor t!fy LrvFAVIOLA MEDINA, City Clerk Services Manager f -(SEAL) April 5, 2023 Item #2 Page 53 of 96 December 2022 GROUP HOME TECHNICAL ADVISORY CA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT DIVISION OF HOUSING POLICY DEVELOPMENT Exhibit 5 April 5, 2023 Item #2 Page 54 of 96 i TABLE OF CONTENTS 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 April 5, 2023 Item #2 Page 55 of 96 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. April 5, 2023 Item #2 Page 56 of 96 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. April 5, 2023 Item #2 Page 57 of 96 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). April 5, 2023 Item #2 Page 58 of 96 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 April 5, 2023 Item #2 Page 59 of 96 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. April 5, 2023 Item #2 Page 60 of 96 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. April 5, 2023 Item #2 Page 61 of 96 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. April 5, 2023 Item #2 Page 62 of 96 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 LAND USE POLICIES AND PRACTICES COMPLY WITH STATE 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. April 5, 2023 Item #2 Page 63 of 96 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). April 5, 2023 Item #2 Page 64 of 96 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. April 5, 2023 Item #2 Page 65 of 96 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). April 5, 2023 Item #2 Page 66 of 96 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). April 5, 2023 Item #2 Page 67 of 96 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). April 5, 2023 Item #2 Page 68 of 96 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. April 5, 2023 Item #2 Page 69 of 96 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 DISCRIMINATION 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. April 5, 2023 Item #2 Page 70 of 96 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 DIRECT 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 CIRCUMSTANTIAL EVIDENCE 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. April 5, 2023 Item #2 Page 71 of 96 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). April 5, 2023 Item #2 Page 72 of 96 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. April 5, 2023 Item #2 Page 73 of 96 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. April 5, 2023 Item #2 Page 74 of 96 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. April 5, 2023 Item #2 Page 75 of 96 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. April 5, 2023 Item #2 Page 76 of 96 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 PROVIDES 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). April 5, 2023 Item #2 Page 77 of 96 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 ISSUES 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). April 5, 2023 Item #2 Page 78 of 96 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. April 5, 2023 Item #2 Page 79 of 96 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. April 5, 2023 Item #2 Page 80 of 96 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. April 5, 2023 Item #2 Page 81 of 96 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. April 5, 2023 Item #2 Page 82 of 96 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. April 5, 2023 Item #2 Page 83 of 96 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. April 5, 2023 Item #2 Page 84 of 96 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). April 5, 2023 Item #2 Page 85 of 96 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. April 5, 2023 Item #2 Page 86 of 96 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. April 5, 2023 Item #2 Page 87 of 96 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. April 5, 2023 Item #2 Page 88 of 96 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. April 5, 2023 Item #2 Page 89 of 96 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). April 5, 2023 Item #2 Page 90 of 96 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. April 5, 2023 Item #2 Page 91 of 96 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. April 5, 2023 Item #2 Page 92 of 96 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) 263-7453www.hcd.ca.gov July 13, 2021 Scott Chadwick, City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Dear Scott Chadwick: RE: Review of Carlsbad’s 6th Cycle (2021-2029) Adopted Housing Element Thank you for submitting the City of Carlsbad’s (City) housing element adopted on April 6, 2021 and received for review on April 15, 2021. Pursuant to Government Code section 65585, subdivision (h), the California Department of Housing and Community Development (HCD) is reporting the results of its review. HCD considered comments from the People for Ponto and the San Diego Housing Federation pursuant to Government Code section 65585, subdivision (c). HCD is pleased to find the adopted housing element in substantial compliance with State Housing Element Law (Article 10.6 of the Gov. Code). The adopted element addresses the statutory requirements described in HCD’s February 22, 2021 review. HCD’s finding was based on, among other reasons, several programs that remove constraints on housing and effectuate affirmatively further fair housing (AFFH) policies and practices. Additionally, the City must continue timely and effective implementation of programs such as Program 1.3 (Alternative Housing), Program 1.6 (Development Streamlining), Program 2.7 (Section 8 Housing Choice Vouchers and Similar Housing Cost Offsets) and Program 4.3 (Anti-Segregation in Housing Implementation). The City must monitor the effectiveness of these, and other programs, and make adjustments, as appropriate, as part of its Annual Progress Report to HCD. Specifically, HCD notes the following: •Group Homes for Seven or More: The element notes that group homes forseven or more persons (also referred to as large residential care facilities) arepermitted differently than groups homes for six or fewer persons and areconditionally permitted in only a few zones (pg. 167). Additionally, the elementnotes that residential care facilities must provide one parking space for every three beds. HCD finds the permitting and parking requirements to beconstraints for developing and providing access to housing for persons withdisabilities. As such, the City must implement Program 1.3 (Alternative Exhibit 6 April 5, 2023 Item #2 Page 93 of 96 Scott Chadwick, City Manager Page 2 Housing), objective g: to review and amend the Carlsbad zoning ordinance or allow group homes of seven or more in the same manner as group homes of six or fewer; allow group homes in all residential zones; and remove constraints, including parking constraints, to housing for persons with disabilities by April 2023 • Site Development Plan Process: The element notes that through the site development plan process, Planning Commission or City Council may impose special conditions or requirements that are more restrictive than the current development standards related to density, parking standards, setbacks, heights, etc., (pg. 194). HCD finds this to be a constraint to development as stricter requirements can add to costs, timing, and create uncertainty to the approval of a project. As a result, the City must implement Program 1.6 (Development Streamlining), objective g: to review and remove any special conditions from the site development planning process that will impact the density, cost, timing, or certainty of a projects approval by April 2022. • AFFH – Mobility Enhancement: As part of addressing Assembly Bill (AB) 686 (Chapter 958, Statues of 2018) AFFH requirements, jurisdictions must include goals, policies, and a schedule of actions that will have a beneficial impact during the planning period. Specifically, the element identified Program 2.7 (Section 8 Housing Choice Vouchers and Similar Housing Cost Offsets), objective d, and Program 4.3 (Anti-Segregation in Housing Implementation), objective f, as mobility strategies. Implementing these programs is essential to removing barriers to housing in areas of opportunity and strategically enhancing access. • Rezoning: The element includes the rezone program needed to identify adequate sites to accommodate the City’s regional housing need allocation (RHNA) for lower-income households. Program 1.1 (Provide Adequate Sites to Accommodate the RHNA) commits to rezone at least 108 acres with a minimum density of 30 units per acre by April 2024 to accommodate a shortfall capacity of 1,397 units to meet the lower-income RHNA. The program also commits to rezone sufficient capacity to accommodate 327 units for moderate income RHNA. Encinas Creek Apartments: The housing element relies on the pending development of the Encinas Creek Apartments (which is now referenced as 4k Apartments in the applicant’s SB 330 submittal), to accommodate 63 units of the City’s RHNA for lower- income households and 64 units of the City’s RHNA for above-moderate households (pg. B-15). Sites and projects that are being counted towards RHNA must have existing or planned access to infrastructure to ensure development during the planning period. Timely implementation of access to infrastructure, including roads, is critical to ensure the project can be developed within the planning period. April 5, 2023 Item #2 Page 94 of 96 Scott Chadwick, City Manager Page 3 The City must report on progress toward implementing all of the programs identified in the housing element pursuant to Government Code section 65400. Failure to act consistently with the programs noted above, may trigger a review by HCD pursuant to Government Code Section 65585, subdivision (i) and may impact the City’s housing element compliance status. Government Code section 65588, subdivision (e)(4), requires a jurisdiction that failed to adopt its housing element within 120 calendar days from the statutory due date to revise its element every four years until adopting at least two consecutive revisions by the applicable due dates. The City has adopted its housing element before the due date of April 15, 2021, and as such has met the second four-year update requirement. The City is no longer subject to the four-year revision requirements and may resume an eight- year update schedule. Public participation in the development, adoption and implementation of the housing element is essential to effective housing planning. Throughout the housing element process, including as part of the implementation of programs described above, the City must continue to engage the community. Public participation should include a wide range of approaches and participants, including organizations that represent lower-income and special-needs households. The process should make information regularly available while considering and addressing comments where appropriate. For your information, some other elements of the general plan must be updated on or before the next adoption of the housing element. The safety and conservation elements of the general plan must include analysis and policies regarding fire and flood hazard management (Gov. Code, § 65302, subd. (g).). Also, the land-use element must address disadvantaged communities HCD urges the City to consider these 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: http://opr.ca.gov/docs/SB244_Technical_Advisory.pdf and http://opr.ca.gov/docs/Final_6.26.15.pdf. Please note the City now meets specific requirements for state-funding programs designed to reward local governments for compliance with State Housing Element Law. For example, HCD’s Affordable Housing and Sustainable Communities program and CalTrans’ SB1 grant program consider housing element compliance in their review process. The CalTrans’ SB 1 grant program also considers annual progress report submissions. Please see HCD’s website for specific information about funding programs at http://www.hcd.ca.gov/grants-funding/active-funding/index.shtml and Caltrans’ website at http://www.dot.ca.gov/hq/tpp/grants.html. April 5, 2023 Item #2 Page 95 of 96 Scott Chadwick, City Manager Page 4 HCD appreciates the hard work, cooperation, and diligence the Carlsbad housing element team, including Don Neu, Jeff Murphy, Scott Donnell, Brenna Weatherby, Eric Lardy, and Rick Rust provided. HCD is committed to assisting the City in addressing all statutory requirements of State Housing Element Law. If you have any questions or need additional technical assistance, please contact Sohab Mehmood, of our staff, at Sohab.Mehmood@hcd.ca.gov. Sincerely, Shannan West Land Use & Planning Unit Chief April 5, 2023 Item #2 Page 96 of 96