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HomeMy WebLinkAbout6.1 SB343 Board House Appeal (2)410-30 ti~ ~- ~ -~ 1 SB 343 Senate Bill 343 mandates supplemental materials that have been received by the City Clerk's office that relate to an agenda item after the agenda packets have been distributed to the City Council be available to the public. This document is also available in the City Clerk's office, the Dublin Library, and the City's Website. The attached document was received distribution of the March 17, 2009 packet. in the City Clerk's office after City Council meeting agenda 3-17-09 6.1 G:\CC-MTGS\FORMS\SB 343 Form.doc HOGS, FENTON JONES & APPEL, INC. Attorneys at Law ~ San Jose ~ Pleasanton ~ East Palo Alto ~ Hollister March 17, 2009 VIA EMAIL John Bakker, City Attorney ~" Meyers Nave 555 12`h Street, Suite 1500 Oakland California 94607 Re: City of Dublin Our File No.: 79600 Dear Mr. Bakker: John F. Doyle 925.4G0.33GG chv@hogefenton.com We are in receipt of your March 5, 2009 memo concerning the Iroonet House Appeal and in particular, the applicability of the Federal Housing Act ("FHA's. By this letter we take the opportunity to point out that after conducting significant research into the issue we must disagree with your conclusion for several reasons. As you note in the memo, the children participating in the Iroonet program are entitled to "familial status" protection under the FHA and as a result of that protected status, the City's requirement that Iroonet go through the conditional use permit process violates the FHA, which supersedes all conflicting law. [Keys Youth Services, Inc. v. City of Olathe, Kansas (D. Kan 1999) 67 F.Supp.2d 1228,1230; 42 USC ~ 3607(b)(1).] Unless all families in Dublin are required to go through a conditional use permit process, such a requirement is disc minatory on its face because it expressly treats members of a protected group differently than others who are similarly situated. [Bangerter v. Orem City Corp. (10's Cir 1995) 46 F.3d 1491, 1501.] The Court in Keys, held that the City discriminated against the potential residents of a group home because it required Keys Youth Services to go through a special permit process based on the city's definitions of residential care facilities, group board home for minors, and family. The mere procedure of requiring the potential residents go through the special use permit violated the FHA the potential residents were being singled out in ways other single-family residents were not. The Court specifically stated: The Planning Commission and City Council discriminated against Keys on the basis of family status when they relied upon the definitions of residential care facilities and group board home for minors, as well as the definition of family. These ordinances do not extend to Keys residents the familial status protection to \ \HFJAFS\NDrive\ 79G00\Let\393G64.doc Pleasanton Office ~ 6155 Stoneridge Drive, Suite 200, Pleasanton, California 94588-3283 phone 925.224.7780 fax 925.224.7782 www.hogefenton,com March 17, 2009 Page 2 which the Court has determined they are entitled. [Ke, yr, 67 F.Supp.2d 1129] Just as in Keyr, Dublin has placed burdens on Iroonet that other families in Dublin are not required to overcome prior to occupying asingle-family residence. The fact that the children are entitled to familial status means that they are a family and must be treated, just like all other Dublin families and need no go through a special use permit process -this is an additional burden that other persons entitled to familial status would not be required to undergo. For example, if Iroonet rented the house to a woman and her sister who each collectively had 12 kids, such use would not require a conditional use permit. Also, if an extended family consisting of 6 adults and 6 children moved into the Iroonet house, no conditional use permit would be required. Under this logic, the Iroonet caretaker could rent the house from Iroonet and occupy it with ten kids who were unrelated, but over which she was the legal guardian and that use too, would be exempted from the conditional use permit requirement. All of these groups could occupy the Iroonet house without obtaining a conditional use permit, thus the requirement that Iroonet obtain a conditional use permit is facially discriminatory. [Community Houre, Inc. v. City of Boise (2007) 490 F.3d 1041, 1049, holding a facially discriminatory polity is one that on its face applies less favorably to a protected group.] Additionally, although there is no case law for the statement, the memorandum states that the general intent of the familial status protection in the FHA is to prohibit housing that is "adults only." However, as Keys, Children'rAdliance' and their progeny demonstrate, Courts have consistently applied the FHA's familial housing protection to circumstances virtually identical to the facts at issue here. In those cases, City ordinances which required operators of group homes go through the conditional use permit process based on the City's definition of family were struck down. Lastly, the memorandum argues that the Iroonet household is constituted merely for profit-making activities and attempts to distinguish the Iroonet household from a group of unrelated persons renting a home, which would be considered anon-profit use. First, the activities conducted within the Iroonet household constitute a single non-profit housekeeping unit. There will be no commercial activities occurring in the Iroonet home. In fact, the example is no different than the 12 unrelated persons renting out the house that the memorandum classifies as non-profit. In that example it is the landlord, just as Iroonet, who is engaging in the profit activity (renting), but the renters and the Iroonet children clearly are not. The children's only purpose for living in the house is to use it as a residence while going to school. The fact that the children are minors in the care of a guardian entitles them to familial status protection under FHA, despite any contention that the household is for profit housekeeping unit. The FHA supersedes all conflicting law, including any Dublin ordinance that treats the Iroonet household as anything other than asingle-family residence, and the FHA makes no distinction based on the fact that the guardians are paid to live in the house. In fact, that arrangement is usual in group homes the FHA has been consistently applied to protect ~ Children's Alliance v. City of Bellevue (1997) 950 F. Supp. 1491 March 17, 2009 Page 3 group homes and exempt such uses from the conditional/special use permit processes. [Children'.rAlliance v. City of Bellevue (1997) 950 F. Supp. 1491,1493-1494.] For all these reasons and those in Iroonet's application, January 12, 20091etter and its February 3, 2009 appeal letter, Iroonet is entitled to familial status and must be treated as a single- family residence. JONES & APPEL, INC. JFD: clw cc: Erica Fraser, Senior Planner City of Dublin (Via Email) Sincerely