Persons recovering from addiction to drugs and/or alcohol are considered to be disabled under state and federal law.
Since the federal Fair Housing Act ("the Act") was amended by Congress in 1988 to add protections for persons with disabilities and families with children, there has been a great deal of litigation concerning the Act's effect on the ability of local governments to exercise control over group living arrangements, particularly for persons with disabilities. The Department of Justice has taken an active part in much of this litigation, often following referral of a matter by the Department of Housing and Urban Development ("HUD"). Following is an overview of the Fair Housing Act's requirements in this area.
The Fair Housing Act prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disability. The Act does not pre-empt local zoning laws. However, the Act applies to municipalities and other local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities.
The Fair Housing Act makes it unlawful to:
Utilize land use policies or actions that treat groups of persons with disabilities less favorably than groups of non-disabled persons. An example would be an ordinance prohibiting housing for persons with disabilities or a specific type of disability, such as mental illness, from locating in a particular area, while allowing other groups of unrelated individuals to live together in that area.
Take action against, or deny a permit, for a home because of the disability of individuals who live or would live there. An example would be denying a building permit for a home because it was intended to provide housing for persons with mental retardation.
Refuse to make reasonable accommodations in land use and zoning policies and procedures where such accommodations may be necessary to afford persons or groups of persons with disabilities an equal opportunity to use and enjoy housing.
The Fair Housing Act requires jurisdictions to offer reasonable accommodation to meet the needs of disabled persons.
What constitutes a reasonable accommodation is a case-by-case determination.
Not all requested modifications of rules or policies are reasonable. If a requested modification imposes an undue financial or administrative burden on a local government, or if a modification creates a fundamental alteration in a local government's land use and zoning scheme, it is not a "reasonable" accommodation.
The Fair Housing Act does not protect persons who currently use illegal drugs, persons who have been convicted of the manufacture or sale of illegal drugs, or persons with or without disabilities who present a direct threat to the persons or property of others.
HUD and the Department of Justice encourage parties to group home disputes to explore all reasonable dispute resolution procedures, like mediation, as alternatives to litigation.
Adapted from the Joint Statement of the Department of Justice and the Department of Housing and Urban Development (August 18, 1999)
Alcoholism or Drug Abuse Recovery or Treatment facility - An adult alcoholism or drug abuse recovery or treatment facility that is licensed pursuant to Section 11834.01 of the California Health & Safety Code. Alcoholism or Drug Abuse Recovery or Treatment Facilities are a subset of Residential Care Facilities.
Conditional use permit (CUP) - A discretionary approval usually granted by the planning commission which allows a use or activity not allowed as a matter of right, based on specified findings.
Group home - A facility that is being used as a supportive living environment for persons who are considered handicapped under state or federal law.
Handicapped - As more specifically defined under the fair housing laws, a person who has a physical or mental impairment that limits one (1) or more major life activities, a person who is regarded as having that type of impairment, or a person who has a record of that type of impairment, not including current, illegal use of a controlled substance.
Integral facilities - Any combination of two (2) or more group homes which may or may not be located on the same or contiguous parcels of land, that are under the control and management of the same owner, operator, management company or licensee or any affiliate of any of them, and are integrated components of one (1) operation shall be referred to as integral facilities and shall be considered one (1) facility for purposes of applying federal, state and local laws to its operation. Examples of such integral facilities include, but are not limited to, the provision of housing in one (1) facility and recovery programming, treatment, meals, or any other service or services to program participants in another facility or facilities or by assigning staff or a consultant or consultants to provide services to the same program participants in more than one (1) licensed or unlicensed facility.
Integral uses - Any two (2) or more residential care programs commonly administered by the same owner, operator, management company or licensee, or any affiliate of any of them, in a manner in which participants in two (2) or more care programs participate simultaneously in any care or recovery activity or activities so commonly administered. Any such integral use shall be considered one (1) use for purposes of applying federal, state and local laws to its operation.
Operator - A company, business or individual who provides residential services, i.e., the placement of individuals in a residence, setting of house rules, and governing behavior of the residents as residents. Operator does not include a property owner or property manager that exclusively handles real estate contracting, property management and leasing of the property and that does not otherwise meet the definition of operator.
Permitted use - Any use allowed in a land use zoning district without requiring a discretionary approval, and subject to the provisions applicable to that district.
Residential Care Facility - A residential facility licensed by the state where care, services, or treatment is provided to persons living in a supportive community residential setting.
Single Housekeeping Unit - The occupants of a dwelling unit have established ties and familiarity with each other, jointly use common areas, interact with each other, share meals, household activities, and expenses and responsibilities; membership in the single housekeeping unit is fairly stable as opposed to transient, members have some control over who becomes a member of the household, and the residential activities of the household are conducted on a nonprofit basis. There is a rebuttable presumption that integral facilities do not constitute single housekeeping units. Additional indicia that a household is not operating as a single housekeeping unit include but are not limited to: the occupants do not share a lease agreement or ownership of the property; members of the household have separate, private entrances from other members; members of the household have locks on their bedroom doors; members of the household have separate food storage facilities, such as separate refrigerators.
Sober Living Home - a Group Home for persons who are recovering from a drug and/or alcohol addiction and who are considered handicapped under state or federal law. Sober living homes shall not include the following: (1) Residential Care Facilities; (2) any Sober Living Home that operates as a single housekeeping unit.
The difference between a Residential Care Facility and a Sober Living Home
A Residential Care Facility is one that is licensed by the California Department of Social Services (DSS) or the Department of Health Care Services (DHCS). Residential Care facilities that provide drug and or alcohol abuse treatment are licensed by DHCS and are known as alcoholism or drug abuse recovery or treatment facilities. Homes are required to be licensed by the DHCS when at least one of the following services is provided: detoxification, group counseling sessions, individual counseling sessions, educational sessions, or alcoholism or drug abuse recovery or treatment planning.
A Sober Living Home is a home used by people recovering from substance abuse, which serves as an interim environment between rehab and their future lives. These homes are not allowed to provide the same services as a DHCS licensed alcoholism or drug abuse recovery or treatment facility. Sober Living Homes are primarily meant to provide housing for people who have just come out of rehab and need a place to live that is structured and supportive for those in recovery.
How the City regulates sober living homes.
The City’s regulations for group homes, including sober living homes, and state licensed alcoholism or drug abuse recovery or treatment facilities, are found in Chapters XV and XVI of Title 13 (Zoning) Click Here and Article 23 of Title 9 (Licenses and Business Regulations) Click Here of the Costa Mesa Municipal Code. The general requirements are as follows:
Group homes, including sober living homes, with 6 or fewer residents, plus one house manager are allowed to locate in all residential zones with a special use permit (SUP), which requires:
A public hearing in front of the Development Services Director prior to issuance
Notice to all residents and property owners within 500’
Written Rules and regulations
Manager present 24-hours a day
o Garage and driveway must remain available for parking
Residents must park on site or within 400 feet
Compliance with all applicable provisions of the California Vehicle Code, such as those related to parking, stopping and licensure
No care and supervision is allowed
Full compliance with building and zoning codes
If a resident is evicted, operators must notify the resident’s emergency contact and provide transportation to their permanent address
If the resident has no home to return to or otherwise refuses transportation home, the operator must provide transportation to another facility if a bed is available
Sober living homes also require:
650’ separation from another sober living home or state licensed alcoholism or drug abuse recovery or treatment facilities
Occupants must be enrolled in Alcoholics Anonymous or Narcotics Anonymous
No use of alcohol or non-prescription drugs – violators must be evicted
Limits on the number of occupants subject to sex offender registration
A good neighbor policy that direct occupants to be considerate of neighbors, including refraining from engaging in excessively loud, profane or obnoxious behavior that would unduly interfere with a neighbor's use and enjoyment of their dwelling unit
No detoxification, counseling sessions or treatment or recovery planning allowed
State licensed alcoholism or drug abuse recovery or treatment facilities with 6 or fewer residents are regulated by the DHCS and are not subject to the City’s group home regulations pursuant to state law, but are subject to all other code requirements applicable to single-family dwellings.
Group homes, sober living homes, and DHCS licensed alcoholism or drug abuse recovery or treatment facilities with 7 or more residents may locate only in the multiple-family residential zones. The general requirements are:
A conditional use permit (CUP) must be obtained
Public hearing in front of the Planning Commission
Must be 650’ away from another group homes, sober living home, or State licensed alcoholism or drug abuse recovery or treatment facility
Sober living homes also require an operator’s permit which includes most of the same requirements as a SUP
Residential Care Facilities and Group Homes are permitted in single-family residential neighborhoods (R1 zones).
The state of California has determined that licensed facilities serving six or fewer residents are residential uses under state law, and cannot be subject to zoning regulations that do not apply generally to all residences in an area. Therefore, Residential Care Facilities serving six or fewer persons are permitted in the R1 zone. Group homes are subject to the City’s zoning regulations and require a SUP (CMMC 13-311).
Residential Care Facilities and Group Homes are permitted in multifamily residential zones (R2-MD, R2-HD, R3, PDR-LD, PDR-HD, PDR-NCM, PDC, and PDI).
Residential Care Facilities serving six or fewer persons are permitted in multifamily zones pursuant to state law. Group homes serving six or fewer residents require a SUP (CMMC 13-311). Residential Care Facilities and Group Homes serving seven or more persons require a CUP.
Pursuant to Federal regulations, the city is required to grant disabled individuals reasonable accommodation from zoning restrictions when necessary to allow equal use or enjoyment of a dwelling. An accommodation is reasonable if it does not cause undue hardship, fiscal, or administrative burdens on the municipality, or does not undermine the basic purpose a zoning ordinance seeks to achieve. A three-part test is applied to determining whether a reasonable accommodation is necessary:
(1) the accommodation must be reasonable and
(2) necessary, and must,
(3) allow a substance abuser equal opportunity to use and enjoy a particular dwelling.
The city must make exceptions in its zoning rules to afford people with disabilities the same access to housing as those who are without disabilities. However, fundamental or substantial modifications from municipal or zoning codes are not required.
When a state license is required.
The DHCS licenses facilities providing 24-hour residential nonmedical services to eligible adults who are recovering from alcohol or other drug misuse or abuse. Facilities are required to be licensed by the DHCS when they offer at least one of the following services:
Individual or group sessions
Recovery or treatment planning
Individualized services (e.g., vocational and employment, new skills training, social and recreational activities, peer support)
Sober Living Homes that provide group living arrangements for people who have graduated from drug and/or alcohol addiction programs, but do not provide care or supervision to those individuals, are not required to be licensed.
Overconcentration standards/separation requirements between Residential Care Facilities.
State law does not impose any separation requirements between DHCS licensed facilities serving those in recovery from drug and/or alcohol addiction. However, the City has adopted a separation requirement of 650 feet between group homes and licensed facilities serving those in recovery. This standard only applies to those facilities subject the City’s permitting requirements (those facilities required to obtain a SUP or CUP).
Limitations on the number of Group Homes that can locate in a certain area.
The Department of Justice and HUD take the position, and most courts that have addressed the issue agree, that density restrictions are generally inconsistent with the Fair Housing Act. We also believe, however, that if a neighborhood came to be composed largely of group homes, that could create an institutional setting. Such a setting would be inconsistent with the objective of integrating persons with disabilities into the community. This objective does not, however, justify separations which have the effect of foreclosing group homes from locating in entire neighborhoods.
The City has established a separation standard of 650 feet between group homes and Residential Care Facilities serving those in recovery. This separation standard only applies to those facilities subject to the City’s permitting requirements. The intent is to allow about one such facility per block. The City adopted this standard to prevent neighborhoods from becoming institutionalized with multiple group homes. The intent of state law in allowing these facilities in residential neighborhoods is to allow those in recovery to live in a residential setting.
Group homes are not considered a business operation.
State law provides that cities must treat licensed facilities serving six or fewer residents as a single-family residential use. Federal and state fair housing laws protect people with disabilities from housing discrimination. Recovering alcoholics and drug addicts are disabled for purposes of anti-discrimination laws. When people in recovery live together in a sober living home, the city cannot discriminate on the basis of the disability, which means an ordinance cannot treat sober living homes differently than other similar uses in residential zones.
The City allows neighbors to provide input when the City is making a decision about granting a permit to a Group Home or licensed care facility to locate in a residential neighborhood.
The City modified its regulations to require a public hearing prior to approving a SUP. SUPs allow sober living homes serving six or fewer residents to operate in a residential zone. The City’s regulations stipulate that an SUP can only be denied if it fails to comply with the zoning code. The purpose of the hearing is to allow neighbors to provide evidence as to the facility’s compliance with the zoning code. Decisions regarding SUPs may be appealed to the Planning Commission.
Facilities serving more than seven residents require approval of a CUP. The Planning Commission must hold a public hearing prior to taking action on a CUP. The Commission may impose conditions of approval to ensure the use is compatible with the neighborhood. The decisions of the Planning Commission may be appealed to the City Council.
The City provides notices of these public hearings to all owners and occupants of property within 500 feet of the proposed group home. Notice is also published in the Daily Pilot at least ten days prior to the hearing, and notices are posted on the subject property. The City also maintains an email interest list and provides informal notice when hearings involving group homes are scheduled. To sign up for this list, Click here and enter in subject line:Interest list
Factors the City may consider when evaluating an application for a group home or licensed care facility
In the same way a local government would break the law if it rejected low-income housing in a community because of neighbors' fears that such housing would be occupied by racial minorities, a local government can violate the Fair Housing Act if it blocks a group home or denies a requested reasonable accommodation in response to neighbors' stereotypical fears or prejudices about persons with disabilities. This is so even if the individual government decision-makers are not themselves personally prejudiced against persons with disabilities. If the evidence shows that the decision-makers were responding to the wishes of their constituents, and that the constituents were motivated in substantial part by discriminatory concerns, that could be enough to prove a violation.
Of course, the City Council and Planning Commission are not bound by everything that is said by every person who speaks out at a public hearing. It is the record as a whole that will be determinative. If the record shows that there were valid reasons for denying an application that were not related to the disability of the prospective residents, the courts will give little weight to isolated discriminatory statements. If, however, the purportedly legitimate reasons advanced to support the action are not objectively valid, the courts are likely to treat them as pretextual, and to find that there has been discrimination.
The decision makers must base decisions on specific evidence regarding the application under consideration. If the facility is creating specific problems that interfere with the ability of surrounding residents to enjoy their property, those issues may properly influence the decision. However, City officials cannot base decisions to approve or deny these applications based on stereotypical fears or general concerns about possible impacts.
Types of conditions the City may impose when approving a group home or residential care facility.
When approving a CUP, the City may impose conditions necessary to ensure compliance with its regulations, and to address operational considerations that may be creating issues in the area. However, conditions may not discriminate against the residents of the home by denying them privileges enjoyed by other residents in the neighborhood. Since the City does not limit the number of cars that may be kept at any residence, for instance, the City may not impose conditions limiting the number of vehicles that can be kept at a group home.
Protections for individuals who may be evicted from a group home
The City requires operators to notify the resident’s emergency contact at least 48 before evicting a resident. The operator is also obligated to provide transportation back to the resident’s permanent address. Further, operators are required to contact OC Links, the County of Orange referral service, and the City’s Network for Homeless Solutions, to determine if services are available for the resident. If the resident refuses transportation back to their permanent address, and there is a bed available in another facility, the operator is required to provide transportation to that facility.
How to report disturbances and potential zoning violations.
The Community Improvement Division will respond to issues regarding noise, property maintenance, use of garage, or any other zoning violations. The phone number to contact is (714) 754-5623.
Complaints may also be reported online using the Costa Mesa Connect application here.
The Costa Mesa Police Department can respond to any disturbance complaints after normal business hours. The phone number to contact is (714) 754-5252.
If you would like to file a complaint directly to the State licensing agency, here is the link: DHCS complaints.
Locations of group homes and residential care facilities
The Department of Health Care Services (DHCS) maintains a list of approved facilities here (the following link is not maintained by the city):