Public Comments — Costa Mesa City Council, March 17, 2026 (part 1 of 2)

From: Nathan M
To: CITY CLERK; PACS Comments
Subject: Test run
Date: Friday, March 13, 2026 3:25:34 PM
Hi,
I am a Mesa Verde resident in Costa Mesa, and I would strongly prefer that Moon Park remain the way it is today. I do not support adding additional lights, fences, or converting the space into pickleball courts. Most importantly, I strongly believe the moon structure should remain.

When I was about eight years old, I participated in the original “Save the Moon” effort when the community came together to keep it in the park. Now, more than 30 years later, I feel just as strongly that it should remain.

The moon is a unique part of the park and part of the neighborhood’s history. Many of us grew up playing on it and now bring our own families to enjoy the same space. Not every park needs to be redesigned or modernized—sometimes preserving what already works is the best decision.

Please keep Moon Park the way it is.

Thank you for your time and consideration.

Nathan Marsteller
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From: Kevin Gardner
To: CITY CLERK
Subject: Public e-comment for 3/17/2026 city council meeting item #9 Date: Tuesday, March 17, 2026 11:00:47 AM
City of Costa Mesa,
Due to my inability to appear in person and make my 3 minute public comment tonight on March 17, 2026 at the city council meeting, I will be submitting this for public record. This is regarding Agenda Item #9.

According to the agenda (CITY OF COSTA MESA - File #: 26-195) it states in the attachment, “City’s current Investment Policy provides that the Finance Director serves as the City Treasurer. The existing policy contains no provision regarding who would serve as Treasurer if the Finance Director position were vacant. Principals of good governance require the City to designate who should serve as City Treasurer in the event the Finance Director position is vacant or the designated City Treasurer is absent.” Who should I reach during her absence?
At various times I have attempted to follow up with the Finance/Executive Director regarding a concerning issue. On February 26, 2026, a city staffer in Planning Department addressed my concerns in person and advised me to reach out to the city attorney. Who is her substitute? On March 12, 2026, I came to City Hall and learned that the Finance Director was no longer in her position, I emailed the following individuals my concerns. I find the city website challenging as it does not directly state staffers’ emails.

These are some of the following individuals that I reached out to via email on March 12, 2026:
[email protected]
[email protected]
[email protected]
I received no acknowledgement of the email I submitted.

On March 16, 2026, I submitted a follow up email to the following addresses:
[email protected]
[email protected]
Again, there was no acknowledgment that my email was received. Did I have the emails incorrect?
My second concern is regarding TESSA. Who oversees the database of TESSA and its compliance?
My third concern is regarding CITY OF COSTA MESA - File #: 25-371. Where is the City at with this? Has the City finalized their Code of Ethics & Conduct? It’s concerning after speaking with the Finance Department staffers in person and not receiving any follow up. So, now I have to resort to making public comments to warrant acknowledgement of my concerns. Please someone in the City respond to my emails. Thank you for your attention.

Respectfully,
Kevin Gardner
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From: Jennifer Tanaka
To: CITY COUNCIL
Cc: CITY CLERK
Subject: Public Comments Re: PH Item #2, NB Item #1, and the Housing Element Process Date: Tuesday, March 17, 2026 12:03:10 PM
Dear Members of the City Council:

I write to ask that you indefinitely table the discussion of amending the tenant protection ordinance to include required notice of at-fault evictions as well as your consideration of establishing a rental registry.

I have consistently advocated that the city adopt policies to address the outrageous increases in market rent (particularly in comparison to median income) in the last five years. While national economic factors beyond the city's control certainly explains some of this run-up in prices, local regulations harming housing supply have certainly contributed as well.

We are now in the tenth year of an effective home-building moratorium in the city. While Measure Y crimped the pipeline of meaningful new housing construction from 2016-2022, since then it has been this Council's inaction following the narrow but successful passage of Measure K that has, frankly, created a local barrier to housing production.

The evidence of this is everywhere in this agenda. Rezoning our Housing Element sites was mission critical to receiving Housing Element certification, yet that process was delayed for more than two years. And now, that delay has allowed intervening court cases to throw our Housing Element certification plan in to disarray, undermined the city's ability to secure critical state funds for our homeless shelter and other housing initiatives, and robbed Jamboree Housing of essential grant funding from the County of Orange to complete a 100% affordable housing project for seniors.

This is a complete policy failure. It is particularly a failure for the city's renters, almost all of which live in market-rate housing. A failure of this magnitude should motivate significant introspection and a reevaluation of the city's capacity to execute.

Yet, this Council instead wishes to embark on an entirely new line of regulation and oversight without fully understanding the market it wishes to insert itself into. It wants to do this despite the logistical and legal headwinds faced by jurisdictions that have tried it and despite its own dire budget situation.

Calls for enhanced tenant protections may very well be motivated by a genuine desire to protect residents from feckless and/or malignant landlords. A well designed program might even do so.

But right now, the city does not have the ability to design this program well, to execute on it well, or to manage it in a sustainable manner. And the consequences of a poorly designed program are substantial: not only could it put the city on the hook for millions of dollars in long-run maintenance funding, it could undermine tenants' legitimate privacy concerns (particularly vis-a-vis less-virtuous government agencies), encourage small landlords to hand management over to experienced and well-resourced professional management companies interested only in maximizing rent yield, and/or cause those landlords to remove their units from the market altogether.

These are bad outcomes for Costa Mesa's renters. And they are not merely theoretical. A recent study from the University of California at Irvine confirmed that enhanced eviction protections may have direct benefits for existing renters, but they come at the cost of higher rents experienced in the market as a whole, lower vacancy rates, and higher rates of homelessness. The authors conclude that, given these results, lawmakers should exercise caution when enacting new tenant protections, lest they result in unintended consequences that leave the average renter worse off than before.

Therefore, I strongly urge you to table the discussions of brand new housing regulations until the city puts its Housing Element house in order. Please execute on what you have promised first, before you make even more promises you may struggle to keep.

Sincerely,
Jenn Tanaka
321 Broadway, Costa Mesa
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www.coxcastle.com Los Angeles | Orange County | San Francisco Cox, Castle & Nicholson LLP
3121 Michelson Drive, Suite 200 C
I r v i n e , C a l i f o r n i a 9 2 6 1 2- 5 6 7 8
P: 949.260.4600 F: 949.260.4699
Tim Paone
949.260.4655
[email protected]

March 16, 2026
Mayor John Stephens
Mayor Pro Tem Manuel Chavez
Council Member Jeff Pettis
Council Member Andrea Marr
Council Member Loren Gameros
Council Member Mike Buley
Council Member Arlis Reynolds

c/o Carrie Tai
Director of Economic and Development Services
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626

Sent by Email to: [email protected]
Re: March 17 Agenda / Public Hearing Agenda Item 3

Mayor Stephens and Members of the City Council:

C.J. Segerstrom & Sons (“CJS”) is following up on its January 30, 2026, letter to the City Council requesting removal of fourteen CJS properties (the “CJS Properties”) from the list of Housing Element Opportunity Sites in the City’s Sixth Cycle (2021 -2029) Housing Element . CJS asks the City Council to concur with Staff and Planning Commission recommendations to adopt the Resolution attached to your Agenda Report for tomorrow’s Public Hearing Item No. 3.

Your Housing Element now identifies the CJS Properties as Housing Element Opportunity Sites with mixed-use overlays. These overlays do not require residential development, but rather give landowners a residential option. Taken by many cities, this approach had been acceptable to the State’s Department of Housing and Community Development (HCD). Through no fault of the City, the rules changed . As detailed in your Agenda Report , courts have held that properties with mixed-use designations must reasonably provide an opportunity for residential development if they are to be included in Housing Element projections for lower income housing. The rulings relied on a State Government Code requirement (Section 65583(a)(3)) that Housing Elements include, among other things, “An inventory of l and suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period . . . .”
Mayor Stephens and Council Members
March 16, 2026

Page 2 ends

Transparency compels CJS to note that CJS has no pending plans which would make the CJS Properties realistically “suitable and available” for residential development within the planning period ending in 2029. As a result, the CJS Properties no longer qualify as Housing Element Opportunity Sites and should be removed from Appendix B of the current Housing Element.

For these reasons, CJS respectfully requests that the City Council adopt the Resolution contained in your Agenda Report, as recommended by the Planning Commission and City Staff.

Thank you.

COX, CASTLE & NICHOLSON LLP

By: Tim Paone
Partner

cc: Costa Mesa City Manager Cecilia Gallardo-Daly
Costa Mesa Planning Commissioners

BRANCART & BRANCART

ATTORNEYS AT LAW
Christopher Brancart P. O. BOX 686 Telephone (650) 879-0141 Elizabeth Brancart PESCADERO, CA 94060 Facsimile (650) 879-1103 www.brancart.com
Street Address
8205 Pescadero Road
Loma Mar, California 94021
March 16, 2026
Via Email and Facsimile
Hon. John Stephens, Mayor
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Fax: (714) 754-5028
[email protected]
Brenda Green, City Clerk
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Fax: (714) 754-5028
[email protected]
Carrie Tai, Director
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Fax: (714) 754-4856
[email protected]
Re: City Council Hearing, Agenda Item: Public Hearing No. 4 A Zoning Code Amendment to Implement Housing Element
Programs, etc.

Meeting: Tuesday, March 17, 2026
Objections, Issues, and Concerns Raised with the City
Dear Gentlepersons:

On behalf of fair housing advocates and group home owners, providers, and residents, I write to raise several concerns, objections, and issues regarding the City’s proposed code amendments set for hearing on Tuesday, M arch 17, 2026, as Agenda Item: No. 4 Public Hearing:

Hon. John Stephens, Mayor
Carrie Tai, Director
Brenda Green, City Clerk
March 16, 2026

Page 2 ends

A ZONING CODE AMENDMENT TO REZONE SIXTH CYCLE
(2021-2029) HOUSING ELEMENT SITES AND IMPLEMENT HOUSING ELEMENT PROGRAMS TO COMPLY WITH STATE Law, A
CONFORMING CODE AMENDMENT TO TITLE 9 OF THE

MUNICIPAL CODE, A RESOLUTION TO AMEND THE NORTH

COSTA MESA SPECIFIC PLAN FOR CONSISTENCY WITH THE

HOUSING ELEMENT SITES REZONING, AND DISCUSSION OF A

RESOLUTION FOR THE FUTURE CONSIDERATION OF ADOPTION
OF FEES ASSOCIATED WITH NEW PROCESSES - PCTY-25-0008
AND PSPA-26-0001
This letter focuses on the failure of the proposed code amendments to address and cure the unlawful provisions in the City's current group home regulations and thereby perpetuates the City's discrimination against housing for persons with disabilities. By this letter, I also incorporate by reference the concerns, objections, and issues raised in my letter to the Planning Commission, dated February 9, 2026, a copy of which is set forth in the City Council Agenda Report under Tab 10.

1. The City's proposed code amendments fail to implement Housing Programs 2O (Single Housekeeping Definition) and 2P (Group Home regulations) because they fail to address and eliminate the discriminatory provisions in the City's current group home regulations.

The draft code amendments propose the following changes to the City' s current group home regulations:
a. Amends the definition of Group Home by adding the underlined phrase, "Group homes shall not include the following: . . . (3) any group home without an operator."
b. Amends the definition of Operator by adding the underlined phrase, "Operator means a company, business or individual, including an in-house manager, who provides residential services . . ."
Hon. John Stephens, Mayor
Carrie Tai, Director
Brenda Green, City Clerk
March 16, 2026

Page 3 ends

c. Amends the definition of Single Housekeeping Unit, retaining the intrusive, subjective, undefined, or nonsensical criteria, but deleting the objective, observable criteria, rendering an already void-for-vagueness definition even more infirm (Housing Program 2O).
d. Amends the definition of Sober Living Home by adding the underlined phrase, "Sober Living Home shall not include the following: . . . (3) any sober living home without an operator."
e. Amends Zoning Chapter XV barring any new or existing group or sober living homes (collectively "Group Homes") in any R1 district unless permitted, by limiting the application disclosure requirements under CM MC 13-311(a)(1) by adding the underlined text to "a group home with an operator."
f. Amends Zoning Chapter XV barring any new or existing Group Homes in any R1 district unless permitted, by shortening but retaining the ministerial application notice requirement from occupants within 500 feet to occupants within 100 feet of the Group Home permit applicant, subjecting Group Home applicants to the only ministerial permit process administered by the City where any neighbor notice is required.
g. Amends Zoning Chapter XV barring any new or existing Group Homes in any R1 district unless permitted, by deleting the requirement that Group Home residents park within 500 feet of their residence. h. Amends Zoning Chapter XVI barring any new or existing Group Homes in any MFR district unless permitted, by exempting Group Homes "without an operator" from the requirement to obtain an additional Group Home Operators Permit; and,
i. Amends Title 9, Chapter 2, Article 23 barring the operation of any Group Home subject to Zoning Chapter XVI, CMMC 13-323 unless that Group Home has obtained and complies with the requirements of the Group Home Hon. John Stephens, Mayor
Carrie Tai, Director
Brenda Green, City Clerk
March 16, 2026

Page 4 ends

Operators Permit regulations, by deleting the requirement that Group Home residents park within 500 feet of their residence.

These proposed amendments are insufficient to address and cure the discriminatory zoning provisions embedded in the City's current Group Home zoning regulations.

2. The proposed amendments perpetuate the City's discrimination against housing for persons with disabilities in violation of state law.

The proposed code amendments fail to implement Housing Program 2P because on their face, as applied, and in effect they violate Cal. Govt. Code §§ 65008(a), (b), (d), 12955(l), 11135, 8899.50, 65583(c)(1), and 65583(a)(7) and the California Constitution. They continue to prohibit any new or existing Group Home in any residential district unless permitted by the City. They also leave intact at least 35 specific, unique, burdensome restrictions or requirements that apply solely to Group Homes and no other uses or structures. Compare Staff Report, Attachment 8 (strikethrough) with Exhibit 1 (listing City's Group Home regulations). Even if the proposed code amendments were enacted, dozens of restrictions, requirements, and conditions would continue to apply solely to Group Homes. And, by definition, a Group Home is a dwelling occupied by " persons who are considered handicapped under state or federal law."

3. Adding "operator" to the zoning definitions and regulations governing Group Homes not only fails to cure the defects in the current group home regulations but also renders them void for vagueness.

The proposed code amendments' principal modification is the insertion of "Operator" in the zoning definitions of Group Home and Sober Living Home and in the substantive regulations of Group Homes. This modification provides no relief from the City's sweeping discrimination against housing for persons with disabilities; in fact, the definition of "operator" is so deeply flawed that it will cause more problems than it cures.

Hon. John Stephens, Mayor
Carrie Tai, Director
Brenda Green, City Clerk
March 16, 2026

Page 5 ends

To start, the proposed code amendments modify the zoning definition of Operator by adding the underlined phrase, "Operator means a company, business or individual, including an in-house manager, who provides residential services . . ." The City provides no definition of "in-house manager." But the term "house manager" appears in the substantive group home regulations. If, on the one hand, it is the City's intent to conflate "in-house manager" in the zoning definition of Operator to mean the same as "house manager" appearing in the City's substantive group home regulations, see e.g., CMMC 13-311(a)(1)(iv), (viii), 13-311(a)(2), (4); 13-322(a)(2); CMMC 9-374(a), 9-374(b), then sprinkling Operator throughout the group home regulations offers no relief from the discriminatory restrictions or requirements in the City's current group home regulations. Under that reading, the definition is wholly circular and any exemption conferred on housing for disabled persons based on the absence of a "house manager" is illusory. If, on the other hand, "in-house manager" means something other than "house manager" as found in the City's substantive group home regulations, then what does that term mean? But even if this conundrum were resolved, that resolution would not fix the fatal flaws in the Operator definition—fatal flaws that the draft code amendments propose to pass on to the group home definition and substantive regulations. The zoning definition of Operator:

Is Circular. It states that a property owner or manager is not an Operator if they "do not otherwise meet the definition of operator." Depends on Meaningless Distinctions. Landlords and property managers of dwellings housing nondisabled persons perform the same functions and activities as an Operator, under the City's definition. They place persons in dwellings through their selection processes and procedures. They also set rules governing conduct within their properties, which govern residents' behavior as residents.

Offers an Exclusivity Standard Without Meaningful Parameters. A landlord or property manager is swept up in the definition of Operator unless they "exclusively handle real estate contracting, property Hon. John Stephens, Mayor
Carrie Tai, Director
Brenda Green, City Clerk
March 16, 2026

Page 6 ends

management and leasing." These terms are nowhere defined; however, the rights and responsibilities of landlords or property managers under the Civil Code include placing individuals in a residence, setting occupancy rules, and governing the behavior of residents as residents.

Is Tautological. The definition's use of "resident" as "resident" and "operator" as "operator" are either tautologies or too confusing to provide any meaningful standards for enforcement.

Introduces the In-House Manager Oddity. According to the proposed definition, an operator is any entity or individual, "including an in-house manager." The meaning and purpose of the "in-house manager" is entirely unclear. An "in-house manager" is an individual, so does the explicit inclusion of this specific kind of individual mean that an "in-house manager" is always an operator?
As a result of these defects, the Operator definition is void for vagueness.

By sprinkling Operator—or its proxy, "in-house manager"—throughout the group home definitions and regulations, the proposed code amendments render them void for vagueness as well. And this outcome amplifies the void-for-vagueness problem already embedded in the City's current and proposed definitions of "group home" and "sober living home." Both definitions incorporate the zoning definition of "single housekeeping unit," a definition that lacks any meaningful, objective standard, making it impossible to avoid arbitrary enforcement.

4. The City's proposed code amendments fail to implement Housing Program 2N (Reasonable Accommodation) because they fail to address the unlawful provisions in the City's reasonable accommodation regulations.

Attached to this letter and incorporated by reference is Disability Rights California's letter to the City, dated January 12, 2026 (Exhibit 2), identifying defects in the City's current reasonable accommodation regulation, CMMC Title 13, Chapter IX, Article 15—defects that the proposed code amendments fail to address and, as a result, fail to comport with the requirements of Housing Program Hon. John Stephens, Mayor
Carrie Tai, Director
Brenda Green, City Clerk
March 16, 2026

Page 7 ends

2N. There is, however, one significant defect embedded in the City' s current reasonable accommodation regulation that the Disability Rights California letter overlooks and which the City must address to implement Housing Program 2N and comply with the requirements of the Fair Employment and Housing Act.

Sections 13-200.62(f)(8) and 13-200.62(g)(5) erroneously mandate denial of any reasonable accommodation request if the City decides that a reasonable accommodation would cause a fundamental alteration in the "City's zoning program." That application of fundamental alteration is misleading and incorrect in evaluating a reasonable accommodation request for an exception to a municipal zoning requirement. The scope of the analysis is not the " City's zoning program;" instead, the proper scope is the City's General Plan, Cal. Govt. Code § 65860(a), including the City's duty to affirmatively further fair housing, Cal. Govt. Code § 8899.50. See also CMMC 13-3(a) ("This Zoning Code is a tool for implementing the goals, objectives and policies of the Costa Mesa General Plan, pursuant to the mandated provisions of the State Planning and Zoning Law (State Government Code section 65000 et seq.). All development within the incorporated area of the city shall be consistent with the general plan.") As written, sections 13-200.62 (f)(8) and 13-200.62(g)(5) invite the City to erroneously find that any exception to an existing zoning regulation is a "fundamental alteration" of the "City's zoning program." Which is precisely what the City has done since 2015: It has denied every reasonable accommodation request by every existing Group Home that applied for any reduction to the separation requirement under CM MC 13-323(c).

See Exhibit 3.

Worse still, the proposed code amendments fail to correct the most pernicious provision of the City's reasonable accommodation regulation, CMMC 13-200.62(g)(4), authorizing the following test for denying a reasonable accommodation request as a fundamental alteration: "Whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation." Nowhere does the City code define "institutionalized environment." Instead, the City presumes that the occupants of every Group Home, defined as " persons who are considered handicapped under state or federal law," CMMC 13-6, are Hon. John Stephens, Mayor
Carrie Tai, Director
Brenda Green, City Clerk
March 16, 2026

Page 8 ends

inherently so disruptive or toxic that if any Group Home were to locate within 650 feet of any other Group Home, their proximity would form a critical mass that spontaneously creates an "institutionalized environment," fundamentally altering the capacity of nearby structures to function as dwellings. W hile the reasonable accommodation regulation tells us how an "institutionalized environment" is created (distance between Group Homes) and embeds the presumption that every Group Home's residents are inherently so disruptive or toxic that they must be kept apart, the reasonable accommodation regulation never defines the attributes of an "institutionalized environment" or any cogent criteria for determining the existence of an "institutionalized environment."
Too much in the weeds? Hardly. "Institutionalized environment"—this undefined, amorphous concept rooted in prejudice and stereotypes about Group Home occupants (i.e., "persons who are considered handicapped under state or federal law")—is uniformly cited in City resolutions as the basis for granting only two of the 26 conditional use permit applications submitted by existing Group Homes, retroactively subjected to CMMC 13-323. See Exhibit 4.

5. The proposed code amendments fail to implement Housing Programs 2N, 2O, and 2P because the City continues to willfully disregard the guidance and direction provided by the State of California.

The State of California has repeatedly and in detail advised the City that its group home regulations violate state statutes and the constitution.

First, in December 2022, the California Department of Housing and Community Development (HCD) issued the State's Group Home Technical Advisory. A copy is attached as Exhibit 5. The Technical Advisory directs local planning agencies and zoning authorities, including the City of Costa M esa, on the requirements of California state zoning laws. The HCD Guidance directly implicates the application of the "city's policy to provide reasonable accommodation" in accordance with FEHA "for persons with disabilities seeking fair access to housing in the application of the city's zoning laws." Hon. John Stephens, Mayor
Carrie Tai, Director
Brenda Green, City Clerk
March 16, 2026

Page 9 ends

Second, on June 29, 2023, the California Attorney General's office filed an amicus brief on behalf of the California HCD and California Civil Rights Department ("CRD") stating the State's assessment of the City's group home regulations. (Exhibit 6.) In that brief, the Attorney General states that the City' s asserted "fundamental alteration" justification for denying requests for reasonable accommodation failed as a matter of law. Exhibit 6 at 22–23. The Attorney General also explains that the City has consistently failed to consider its obligations under state law to affirmatively further fair housing. These obligations include, among other things, protecting individuals with disabilities' right to housing of their choice, and the housing they find most suitable for their disability-related needs, while removing constraints on their ability to obtain this housing. See, e.g., Gov't Code §§ 8899.50; 65583(a)(5), (c)(3), (c)(5), (c)(10)(A).

Third, on November 29, 2023, HCD advised the City that it had " reviewed the City's group home ordinances and related policies under its authority pursuant to Government Code section 65585," and found that "the City's group home ordinances and related policies violate Government Code sections 65008, 65583, and 8899.50 by failing to meet the City's obligations to affirmatively further, protect, and remove constraints on housing for persons with disabilities, and also by discriminating against this housing." (Exhibit 7.) HCD directed the City to "immediately stop enforcing its group home ordinances, repeal them, and revise its reasonable accommodations policies." Exhibit 7 at p. 11.

The proposed code amendments fail to address each of the defects in these communications for the State; accordingly, the proposed code amendments fail to implement the City's Housing Programs 2N, 2O, and 2P and perpetuate the City's pattern or practice of discrimination against housing for persons with disabilities. * * *
Thank you for your consideration.
/s/ Christopher Brancart
[email protected]
Enclosures: Exhibits
Exhibit 1: Summary of City's Group Home Regulations
Exhibit 2: Disability Rights California Letter to the City, dated January 12, 2026 Exhibit 3: Record of Denied Reasonable Accommodation Requests Since 2015 Exhibit 4: City Resolutions on Conditional Use Permit Applications Exhibit 5: California Department of Housing and Community Development Group Home Technical Advisory, December 2022
Exhibit 6: Amicus Brief of California Attorney General, filed June 29, 2023 Exhibit 7: Letter from HCD to City of Costa Mesa, dated November 29, 2023 1 Zoning regulations for unlicensed1 residential uses in Costa Mesa’s multi-family zoning districts

CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Use Definitions

Use defined based on disability status of
residents, CMMC 13-06
Yes, CC 96 Yes, CC 5 No, CC 3 No, CC 3 No CC 4

1 Licensed uses are subject to state-mandated zoning entitlements and restrictions. The Costa Mesa Municipal Code (CMMC) defines these uses as Residential care facilities. A residential facility licensed by the state where care, services, or treatment is provided to persons living in a supportive community residential setting. Residential care facilities include, but may not be limited to, the following: intermediate care facilities for the developmentally disabled (Health & Safety Code §§ 1267.8, 1267.9);community care facilities (Health & Safety Code § 1500 et seq.); residential care facilities for the elderly (Health &Safety Code § 1569 et seq.); residential care facilitie s for the chronically ill (22 C.C.R. § 87801(a)(5); Health & Safety Code § 1568.02); alcoholism and drug abuse facilities (He alth & Safety Code §§ 11834.02— 11834.30); pediatric day health and respite care facilities (Health & Safety Code § 1760 et seq.); r esidential health care facilities, including congregate living health facilities (Health & Safety Code §§ 1265— 1271.1, 1250(i), 1250(e), (h)); family care home, foster home, group home for the mentally disordered or otherwise handicapped persons or dependent and neglected children (Wel. & Inst. Code §§ 5115—5120).” CMMC 13-06. 2Sober living home means 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.” CMMC 13-06.
3Group home. A facility that is being used as a supportive living environment for persons who are considered handicapped under state or fede ral law. A group home operated by a single operator or service provider (whether licensed or unlicensed) constitutes a single facil ity, whether the facility occupies one (1) or more dwelling units. Group homes shall not include the following: (1) residential care facilities; (2) any group home that operates as a single housekeeping unit.” CMMC 13-06.
4 “Boardinghouse. A residence or dwelling, other than a hotel, wherein rooms are rented under two (2) or more separate written or oral rental a greements, leases or subleases or combination thereof, whether or not the owner, agent or rental manager resides within the residen ce. Boardinghouse, small means two (2) or fewer rooms being rented. Boardinghouse, large means three (3) to six (6) rooms being rented. Boardinghouses renting m ore than six (6) rooms are prohibited.” CMMC 13-06.
5 “Dwelling, multi-family “Dwelling, multi-family” or “multi- family dwelling” is a building or buildings of permanent character placed on one (1) lot which is designed or used for residential occupancy by two (2) or more families.” CMMC 13-06. 6 “CC #” refers to page numbers in the excerpt of the current Costa Mesa Municipal Code [as of 05/09/2021], attached to this Table for reference. 2 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Use defined based on nature of the
disability of dwelling’s residents, CMMC
13-06
Yes, CC 9 No, CC 5 No, CC 3 No, CC 3 No CC 4
Permitted Zoning District

Permitted in Residential Zoning District,
CMMC 13-30, 13-204
No, CC 31 No, CC 31 Yes, CC 31 Yes, if pre-
existing, CC 54;

No, if new, CC 31
Yes, CC 31
Permitted in Multifamily Zoning Districts
(R2-MD, R2-HD, R3), CMMC 13-30
No, CC 31 No, CC 31 Yes, CC 31 Yes, if pre-
existing, CC 54;

No, if new, CC 31
Yes, CC 31
Permitted in Planned Development
Residential Districts (PDR-LD, PDR-MD,
PDR-HD, PRD-NCM, PDC, PDI), CMMC 13-
30, 13-204
No, CC 31 No, CC 31 Yes, CC 31 Yes, if pre-
existing, CC 54;

No, if new, CC 31
Yes, CC 31
Permitted in Institutional & Recreational
(I&R) Zoning District [intended for
“recreation, open space, health, public
services,” 13-20(i), CC 17]
Yes, CC 31 Yes, CC 31 No, CC 31 No, CC 31 No, CC 31
Specially or Conditionally Permitted in
Institutional & Recreational (I&R) Zoning
District [intended for “recreation, open
space, health, public services,” 13-20(i),
CC 17]
NA, CC 31 NA, CC 31 No, CC 31 No, CC 31 No, CC 31
Nonconforming Use Status

Existing uses required to apply for
Special or Conditional Use Permit to
Yes, CC 67, 59 Yes, CC 67, 59 No, CC 54 No, CC 54 NA, CC 31 3 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
continue existing use, 13-324, 13-
207.1 versus 13-204, 13-30
Separation Requirement

Separation requirement imposed on
existing uses, 13-322, 13-323, 13-324
versus 13-30, 13-204, 13-207.1
Yes: At least 650
feet between
dwelling and any
group home, sober
living home or
state-licensed drug
and alcohol
treatment facility.

CC 66-67
Yes: At least 650
feet between
dwelling and any
group home, sober
living home or state-
licensed drug and
alcohol treatment
facility. CC 66-67
No, CC 54 No, CC 54 NA, 13-30
Separation requirement imposed on new
uses, 13-322, 13-323, 13-324 versus 13-30
fn 7
Yes: At least 650
feet between
dwelling and any
group home, sober
living home, or
state-licensed drug
and alcohol
treatment facility.

CC 66-67
Yes: At least 650
feet between
dwelling and any
group home, sober
living home, or state-
licensed drug and
alcohol treatment
facility. CC 66-67
Yes: Small
boardinghouses
shall locate at
least six
hundred fifty
(650) feet from
any other small
boardinghouse.

CC 49
Yes: Large
boardinghouses
shall be located
at least one
thousand (1,000)
feet away from
any other
boardinghouse.

CC 49
NA, 13-30
Dwelling Operator’s Permit Required

Owner or operator of dwelling must
obtain an “Operator’s Permit,” CMMC 13-
323, 9-372, or meet same conditions for
Yes, CC 67, 69
[CUP]; Yes, CC 66,
61-63 [SUP]
Yes, CC 67, 69 [CUP];
Yes, CC 66, 61-63
[SUP]
No No No
4 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Operator’s Permit under SUP
requirements, 13-322, 13-311
Owner or operator of dwelling must
obtain an “operator’s permit” as a
condition to qualify for a conditional use
permit, CMMC 13-323, 9-372, or meet
same conditions for Operator’s Permit to
qualify for SUP, 13-322, 13-311
Yes, CC 67, 69
[CUP]; Yes, CC 66,
61-63 [SUP]
Yes, CC 67, 69 [CUP];
Yes, CC 66, 61-63
[SUP]
No No No
Permit Application Requirements

Permit Application: Required to list
applicant/operator’s every general
partner and every owner with controlling
interest in corporation. CMMC 13-311(a)
+ 9-374(a) versus CMMC 13-29(a) + City
Form 09/2019
Yes, CC 61, 69;
[CUP]; Yes, CC 66,
61-63 [SUP]
Yes, CC 61, 69; [CUP];
Yes, CC 66, 61-63
[SUP]
No, CC 22 No, CC 22 No, CC 22
Permit Application: Required to provide
permit history or operation of similar use
at any time anywhere in the United
States. CMMC 13-311(a) + 9-374(a)
versus CMMC 13-29(a) + City Form
09/2019
Yes, CC 61, 69;
[CUP]; Yes, CC 66,
61-63 [SUP]
Yes, CC 61, 69; [CUP];
Yes, CC 66, 61-63
[SUP]
No, CC 22 No, CC 22 No, CC 22
Permit Application: Required to provide
copy of rules governing conduct of
residents occupying dwelling. CMMC 13-
311(a) + 9-374(a) versus CMMC 13-29(a)
+ City Form 09/2019
Yes, CC 61, 69;
[CUP]; Yes, CC 66,
61-63 [SUP]
Yes, CC 61, 69; [CUP];
Yes, CC 66, 61-63
[SUP]
No, CC 22 No, CC 22 No, CC 22
5 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Permit Application: Required to identify
the name, address, telephone, CDL of
onsite dwelling manager. CMMC 13-
311(a) + 9-374(a) versus CMMC 13-29(a)
+ City Form 09/2019
Yes, CC 61, 69;
[CUP]; Yes, CC 66,
61-63 [SUP]
Yes, CC 61, 69; [CUP];
Yes, CC 66, 61-63
[SUP]
No, CC 22 No, CC 22 No, CC 22
Permit Application: Required to provide
document reflecting criteria for
acceptance of resident in dwelling.

CMMC 13-311(a) + 9-374(a) versus CMMC
13-29(a) + City Form 09/2019
Yes, CC 61, 69;
[CUP]; Yes, CC 66,
61-63 [SUP]
Yes, CC 61, 69; [CUP];
Yes, CC 66, 61-63
[SUP]
No, CC 22 No, CC 22 No, CC 22
Permit Application: Required to provide
blank copies of all forms that residents of
dwelling are required to complete.

CMMC 13-311(a) + 9-374(a) versus CMMC
13-29(a) + City Form 09/2019
Yes, CC 61, 69;
[CUP]; Yes, CC 66,
61-63 [SUP]
Yes, CC 61, 69; [CUP];
Yes, CC 66, 61-63
[SUP]
No, CC 22 No, CC 22 No, CC 22
Permit Notice Requirements, July 2017
(17-05) - October 2018 (18-06) time
period

Public notice of hearing on application for
special use permit, CMMC 13-311(b)
versus CMMC 13-29(c) [07/2017-
09/2018]
Notice to be mailed
to the owner of
record and
occupants of all
properties within
five hundred
(500) feet of the
location of the
group home.

Notice to be mailed
to the owner of
record and
occupants of all
properties within
five hundred
(500) feet of the
location of the group
home.

Notices of the
hearing shall be
mailed to all
property
owners within
a five hundred-
foot radius of
the project site
Notices of the
hearing shall be
mailed to all
property owners
within a five
hundred-foot
radius of the
project site
Notices of the
hearing shall
be mailed to
all property
owners within
a five
hundred-foot
radius of the
project site
Occupancy limit on number of
residents per dwelling

6 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Occupancy limitation City Housing
Element
City Housing Element State Housing
Law/UHC
State Housing
Law/UHC
State Housing
Law/UHC
On-Site Manager Requirements

Dwelling must have a 24/7 onsite
manager. CMMC 13-311(a)(4) + CMMC 9-
274(b)(1) versus State Housing Law
Yes, CC 62, 70 Yes, CC 62, 70 No, State
Housing Law
No, State
Housing Law
No, State
Housing Law
Vehicle Restrictions

Each dwelling resident limited to one
vehicle that must be used as resident’s
primary form of transportation, 13-
311(a)(5) + CMMC 9-274(b)(2)
Yes, CC 62, 70 Yes, CC 62, 70 No No No
Resident Parking Restrictions

Each dwelling resident must park her
vehicle on dwelling premises or within
500 feet of dwelling, 13-311(a)(5) +
CMMC 9-274(b)(2) versus CMMC Title 10,
Ch X (Stopping, Standing and Parking)
Yes, CC 62, 70 Yes, CC 62, 70 No No No
Eviction requirements

Landlord/operator must notify resident’s
emergency contact, OCHA OC Links
Referral Line, and Costa Mesa’s Network
for Homeless Solutions before an evicting
resident, CMMC 13-311(a)(10) + 9-
374(b)(6)
Yes, CC 62, 70 Yes, CC 62, 70 No No No
Landlord/operator must provide
transportation to alternative housing to
any resident evicted from dwelling,
CMMC 13-311(a)(11) + 9-374(b)(7)
Yes, CC 62, 70 Yes, CC 62, 70 No No No
7 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Landlord/operator must maintain eviction
records for one year resident’s eviction
from dwelling, CMMC 13-311(a)(12) + 9-
374(b)(8)
Yes, CC 62, 70 Yes, CC 62, 70 No No No
Regulation of Residents within
Dwelling

Each resident of dwelling must actively
participate in a legitimate self-
improvement program (e.g., 12-step
program), CMMC 13-311(a)(14)(i) + 9-
374(b)(10)(i)
Yes, CC 63, 71 No No No No
Landlord/operator must maintain records
showing that resident is actively
participating in a legitimate self-
improvement program (e.g., 12-step
program), CMMC 13-311(a)(14)(i) + 9-
374(b)(10)(i)
Yes, CC 63, 71 No No No No
Landlord/operator must promulgate a
rule warning that if a resident refuse to
actively participating in a legitimate self-
improvement program (e.g., 12-step
program), then the resident may be
evicted. CMMC 13-311(a)(14)(i) + 9-
374(b)(10)(i)
Yes, CC 63, 71 No No No No
Landlord/Operator must prohibit
residents from use of any non-
prescription drugs. CMMC 13-
311(a)(14)(ii) + 9-374(b)(10)(ii)
Yes, CC 63, 71 No No No No
8 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Landlord/operator must evict any
resident caught using any non-
prescription drug. CMMC 13-
311(a)(14)(ii) + 9-374(b)(10)(ii)
Yes, CC 63, 71 No No No No
Landlord/operator must promulgate a
good neighbor policy directing residents
“to be considerate of neighbors, including
refraining from engaging in excessively
loud, profane or obnoxious behavior that
would unduly interfere with a neighbor’s
use and enjoyment of their dwelling
unit.” CMMC 13-311(a)(14)(vi) + 9-
374(b)(10)(v)
Yes, CC 63, 71 No No No No
Landlord/operator must promulgate
written protocol for onsite manager to
follow in response to a neighbor’s
complaint. CMMC protocol for 13-
311(a)(14)(vi) + 9-374(b)(10)(v)
Yes, CC 63, 71 No No No No
Owner, Landlord, Operator, and
Employee Qualification Requirements

Owner, landlord, or operator of a
dwelling is barred from obtaining a
Special or Condition Use Permit for that
dwelling if she was terminated from a job
for sexual harassment, embezzlement, or
illegally furnishing alcohol within two
years of applying to the City for that
zoning permit. CMMC 13-311(b)(2), 9-
374(e)(2) versus 13-29(g)(2)
Yes, CC 63, 71 Yes, CC 63, 71 No, CC 25 No, CC 25 No, CC 25 9 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Owner, landlord, or operator of a
dwelling is barred from obtaining a
Special or Condition Use Permit for that
dwelling if she employs any person who
was terminated from a job alcohol for
sexual harassment, embezzlement, or
illegally furnishing alcohol within two
years of applying to the City for that
zoning permit. CMMC 13-311(b)(2), 9-
374(e)(2) versus 13-29(g)(2)
Yes, CC 63, 71 Yes, CC 63, 71 No, CC 25 No, CC 25 No, CC 25 Owner, landlord, or operator of a
dwelling is barred from obtaining a
Special or Condition Use Permit for that
dwelling if she was convicted or pleaded
nolo contendere to any PC 290 sex
offense or PC 667.5 felony within 10 years
of applying to the City for that zoning
permit. CMMC 13-311(b)(2), 9-374(e)(2)
versus 13-29(g)(2)
Yes, CC 63-64, 71-72 Yes, CC 63-64, 71-72 No, CC 25 No, CC 25 No, CC 25 Owner, landlord, or operator of a
dwelling barred from obtaining a Special
or Condition Use Permit for that dwelling
if she employs any person who was
convicted or pleaded nolo contendere to
any PC 290 sex offense or PC 667.5 felony
within 10 years of applying to the City for
that zoning permit. CMMC 13-311(b)(2),
9-374(e)(2) versus 13-29(g)(2)
Yes, CC 63-64, 71-72 Yes, CC 63-64, 71-72 No, CC 25 No, CC 25 No, CC 25 10 CMMC Regulations Governing
Residential Uses in City’s Multifamily
Districts
Sober Living Home2 Group Home3 Boardinghouse,
Small < 3 rental
rooms
4 Boardinghouse,
Large < 7 rental
rooms
Multi-family
Dwelling5
Owner, landlord, or operator of a
dwelling barred from obtaining a Special
or Condition Use Permit for that dwelling
if he was convicted or pleaded nolo
contendere to any PC 290 sex offense or
PC 667.5 felony within 10 years of
applying to the City for that zoning
permit. CMMC 13-311(b)(2), 9-374(e)(2)
versus 13-29(g)(2)
Yes, CC 63-64, 71-72 Yes, CC 63-64, 71-72 No, CC 25 No, CC 25 No, CC 25 Owner, landlord, or operator of a
dwelling barred from obtaining a Special
or Condition Use Permit for that dwelling
if she employs any person who was
convicted or pleaded nolo contrendere to
any PC 451 arson offense or furnishing
any controlled substance within 7 years of
applying to the City for that zoning
permit. CMMC 13-311(b)(2), 9-374(e)(2)
versus 13-29(g)(2)
Yes, CC 63-64, 71-72 Yes, CC 63-64, 71-72 No, CC 25 No, CC 25 No, CC 25 Owner, landlord, or operator of a
dwelling barred from obtaining a Special
or Condition Use Permit for that dwelling
if she is in recovery from abuse of drugs
or alcohol and has been abstained for less
than one year before applying to the City
for that zoning permit. CMMC 13-
311(b)(6), 9-374(e)(2) versus 13-29(g)(2)
Yes, CC 64, 72 No No, CC 25 No, CC 25 No, CC 25

LEGAL ADVOCACY UNIT
1831 K Street
Sacramento, CA 95811
Tel: (916) 504-5800
Fax: (916) 504-5801
TTY: (800) 719-5798
Intake Line: (800) 776-5746
www.disabilityrightsca.org
January 12, 2026

VIA EMAIL

Kimberly Hall Barlow
Jones Mayer
3777 N. Harbor Blvd.

Fullerton, CA 92835
[email protected]

RE: Costa Mesa’s Proposed Revisions to RA Ordinance

Dear Ms. Barlow:

Thank you for the opportunity to review and comment on Costa Mesa’s proposed revisions to the City’s reasonable accommodation ordinance pursuant to the settlement agreement in the Insight v. Costa Mesa case.

In your December 19, 2025 email to us, you said that Costa Mesa was proposing to delete subsection (7) of Section 13-200.62(f) of the City’s reasonable accommodation ordinance. You explained that the deletion is proposed because “it is operationally difficult for staff or the applicants to make this determination given lack of information and the difficulties in ensuring that any facilities adequately allow individual(s) with said disability(ies) to live in a residential setting. Furthermore, this subsection is unnecessary given the other provisions of the Reasonable Accommodation Ordinance.” We support the deletion of subsection (7) from Section 13- 200.62, which requires a finding that “the existing supply of facilities of a similar nature and operation in the community is sufficient to provide individuals with a disability an equal opportunity to live in a residential setting.”
January 12, 2026

Page 2 of 7 ends

The deletion of subsection (7) is an important first step in bringing Costa Mesa’s reasonable accommodation ordinance into compliance with state and federal fair housing requirements. However, in order to bring the entire reasonable accommodation regulation into compliance, Costa Mesa will need to make additional changes. Given the structure of the current ordinance, it will be difficult to do that by simply editing or rewording the text. Instead, we propose that the City repeal sections of the ordinance in their entirety and replace them with new ones.

To begin with, Section 13-200.62 (f) has problems that cannot be remedied without restructuring. That section is a list of findings “all of which are required for approval” of a reasonable accommodation request. But the list combines factors that the person or entity requesting the accommodation must establish in order to be entitled to an accommodation, i.e., the topics of Findings (1) and (2), with factors that are the City’s burden to establish if it is going to deny the accommodation, i.e., the topics of Findings (3), (5), and (8). These two types of topics need to be separated to clearly delineate who – the person or entity making the request, or the City – bears the burden of proof.

As written, Findings (3), (5), and (8) require affirmative findings that there is no undue financial or administrative burden, no direct threat, and no fundamental alteration for the approval of a reasonable accommodation request. In other words, they require that the City affirmatively find that those factors are not present. This has the effect of putting the burden on the person or entity making the request to establish the absence of an undue burden or fundamental alteration. That is contrary to fair housing law, which makes it the City’s burden to establish that there is an undue burden, direct threat, or fundamental alteration before denying a reasonable accommodation request. Fair housing law does not permit the City to make the establishment of the absence of those factors a requirement.

Page 3 of 7 ends

accommodation will impose an undue financial or administrative burden, will result in a direct threat, or will result in a fundamental alteration (i.e., the inverse of the current language regarding findings). It does not work to combine them in the same list as the elements that the person or entity making the request has the burden to establish. The two types of findings must be bifurcated.

Moreover, the current structure of the reasonable accommodation ordinance also makes it difficult for the ordinance to adequately reflect the law governing the findings that the City must establish to deny an otherwise valid reasonable accommodation request. For example, where the ordinance authorizes the City to deny a reasonable accommodation request based on a direct threat finding, it must also state that in such a case the City must find that the threat cannot be mitigated by reasonable accommodation. 28 C.F.R. §35.139. A finding that granting a reasonable accommodation would be an undue burden or fundamental alteration must also be made “after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion.” 28. C.F.R. §35.150(a)(3). It will be difficult to add such clarifications in a clear way unless the two types of findings under Section 13-200.62(f) are separated and the findings for which the City bears the burden are written in the affirmative.

Section 13-200.62 (f) also includes factors that do not fall within either the burden of the person or entity making the accommodation request or the allowable reasons for the City to deny a request, but instead layer on additional obligations that are not permitted under fair housing law. Finding (4) requires a finding that the “requested accommodation is consistent with surrounding uses in scale and intensity of use.” The City cannot apply different occupancy, use, or development standards to shared housing for people with disabilities as compared to other forms of housing, nor can it require a household of people with disabilities to be limited to fewer people than a single housekeeping unit would be allowed to have. To the extent that a requested accommodation would result in housing that was vastly different from permitted housing uses, City staff could evaluate whether granting the request would constitute a fundamental alteration to a City program or would result in an undue burden or direct threat. But simply having the same number of people that a single housekeeping unit would January 12, 2026

Page 4 of 7 ends

be allowed to have, or failing to meet another occupancy or development standard that was not also applied to single housekeeping units, could never fall within one of those permitted reasons for denying an accommodation request. Consistency with other uses should therefore not be listed as a separate required finding.

Likewise, Finding (6) requires in some instances “a finding that the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants generally.” For the same reasons that the City is removing Finding (7), which also focuses on “facilities of a similar nature and operation” rather than on the specific housing that is at issue for a particular reasonable accommodation request, the City should remove Finding (6). It is just as true that it will be “operationally difficult for staff or the applicants to make this determination given lack of information” for Finding (6) as for Finding (7). Moreover, providing a feasibility study or market study about other housing does not fall within the burden of someone making a reasonable accommodation request. Making such a study a condition of approving a disability-related accommodation is therefore a discriminatory housing practice. This should likewise not be listed as a required finding.

The deletion of Finding (7) should also be accompanied by a revision to the language of Finding (2), which states that, “[t]he requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling.” To ensure that City staff interpret Finding (2) consistent with fair housing laws, by focusing on the housing at issue in the request rather than “facilities of a similar nature and operation” elsewhere, Finding (2) should be revised to refer to an equal opportunity to use and enjoy “their dwelling,” “the dwelling at issue in the accommodation request,” or something similar.

In order to bring the reasonable accommodation ordinance into compliance with federal and state fair housing law, the City will also need to revise other portions of the ordinance. As reflected in the settlement agreement, we would welcome the opportunity to work with the City during that portion of its review of the reasonable accommodation ordinance and to provide feedback on any draft revisions of those other sections.

January 12, 2026

Page 5 of 7 ends

For those portions of the ordinance as well, it would be most effective for the City to repeal and replace language rather than try to work within the existing structure. For example, Section 13-200.62(b) loads burdensome and irrelevant requirements onto people or entities making reasonable accommodation requests. A lay homeowner who needs an accommodation due to disability should be able to comply with application requirements without having to hire an attorney or other expert to help them understand what they need to do. The City should limit the application to information that is necessary for the City to evaluate whether the person or entity making the request has met their burden, such as the location of the dwelling at issue, the existence of the disability, the nature of the accommodation that is being requested, and the connection between the disability and the requested accommodation. The provisions in Section 13- 200.62(b) that require people or entities making reasonable accommodation requests to provide “[a]ny other information that the director reasonably determines is necessary for evaluating the request for reasonable accommodation” ((b)(3)) and “[a]ny other information that the hearing officer reasonably concludes is necessary to determine whether the findings required by subsection (e) of this section can be made” ((b)(7)) are particularly problematic because they are not limited to the information necessary to establish that a person or entity is entitled to a reasonable accommodation.

Section 13-200.62(d) provides that appeals of reasonable accommodation requests will be handled through the same procedures as “any other discretionary permit.” However, the appeals process pertaining to reasonable accommodation requests needs to be navigable and manageable by lay people with disabilities. This provision should be repealed and replaced with new language that requires a prompt, clear statement of the reasons for any denial, establishes a simple procedure for requesting an appeal, provides a reasonable deadline for making requests for an appeal, and eliminates the need for individuals or entities to pay for the City’s review of their reasonable accommodation determination.

Most importantly, the section of the reasonable accommodation ordinance addressing appeals must exempt them from the review procedures that govern general zoning matters in order to respect the privacy of people’s disabilities and disability-related needs during any review process.

Hearings regarding reasonable accommodations requests should not be January 12, 2026

Page 6 of 7 ends

made by legislative bodies, and no public notice should be made regarding reasonable accommodation reviews. Public hearings create an opening for members of the public to express animus against people with disabilities, which imposes an improper barrier to people seeking such accommodations. For example, at the hearings regarding Insight’s reasonable accommodation request, a member of the public told the Planning Commission that a person who is “mentally disabled does not belong in a neighborhood next door to me or any of us in this room,” and someone testified to the City Council that the “mentally ill cannot associate with our children, neighbors.” As you know, hearing those types of comments was traumatic for our client Ms. Doe, who spoke about her own experiences with mental illness, and the ways that staying at Insight’s housing had helped her, at a hearing on Insight’s reasonable accommodation request. Not only is the City not obligated to provide the public with a forum to intimidate and humiliate people like Ms. Doe, but the City cannot put people like her through such an ordeal as a condition of having their accommodation request reviewed. Nor can such animus play any part in the City’s review of an accommodation request. For similar reasons, the ordinance should also make clear that only the person or entity making the request can appeal a decision regarding a reasonable accommodation, in contrast to the current language which permits virtually anyone – including neighbors with an animus against people with disabilities – to appeal.

Finally, Sections 13-200.62(e) and (g), regarding “considerations,” overlap with the required “findings” in Section 13-200.62(f) in a way that impedes consistency with fair housing law. Like Section 13-200.62(f), these sections fail to make clear which elements are the burden of the person making the reasonable accommodation request to establish and which are the City’s burden. Many of them are also improper considerations. For example, the City cannot take into account “whether granting the request would be consistent with the City's General Plan.” By definition, any reasonable accommodation request pertaining to zoning will be inconsistent with the zoning scheme. “Requiring public entities to make exceptions to their rules and zoning policies is exactly what the FHAA does.” Anderson v. City of Blue Ash, 798 F.3d 338, 363 (6th Cir. 2015); City of Edmonds v.

Washington State Bldg. Code Council, 18 F.3d 802, 806 (9th Cir. 1994) (FHA imposes an affirmative duty to reasonably accommodate disabled persons). The question is not whether a requested disability January 12, 2026

Page 7 of 7 ends

accommodation is inconsistent with the City’s General Plan, but whether granting it would fundamentally alter the General Plan. To take another example, the City cannot take into consideration whether “the accommodation would result in a substantial increase in traffic or insufficient parking” (§ 13-200.62(g)(2)) or “create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation” (§ 13-200.62(g)(4)) unless it is also doing so with respect to single housekeeping units. Again, the City cannot impose more stringent development or occupancy standards on housing occupied by people with disabilities than on single housekeeping units, nor can it use vague or undefined conditions as a basis for denial of a reasonable accommodation request. These are examples, and not an exhaustive list, of the issues with subsections (e) and (g) of Costa Mesa’s reasonable accommodation ordinance. We would be happy to provide additional comments or to discuss with you and with City staff in more detail our further thoughts on bringing the ordinance into compliance with state and federal fair housing requirements.

We appreciate your time and attention to our comments and look forward to working with you and the City further on these important access issues for Costa Mesa residents with disabilities. Please let us know if you would like to discuss any of these issues further.

Sincerely,

Autumn M. Elliott
Law Office of Autumn Elliott

Jia Min Cheng
Managing Attorney
Disability Rights California

1 Summary of Development Services Director decisions on reasonable accommodation applications submitted by group homes subject to Zoning Chapter XVI, CMMC § 13-323

App
No.

(RA
application
predates
650 conflict)

[Sum 465 /
City 5074]

[Sum 466 /
City 5075]

[Sum 465 / City 5074]
NA (RA application predates 650 conflict)

[Sum 465 / City 5074]
8/29/
2016

Grant
PA-
16-06
Pacific
Shores
NA

(None
specified)
NA

(Omitted
from
director
letter)

[Sum 468 /
City 6208]

[Sum 469 / City 6209]

[Sum 468 / City 6208]
3/29/
2016

Deny
PA-
16-12
Clean
Path
Recovery
650ft
separation
[Sum 471 /
City 17506]

[Sum 471 /
City 17506]

[Sum 471 / City 17506]

[Sum 472 / City 17507]: “Your request to
process one CUP application for two
properties at the subject location may
allow a CUP to be granted to enable Clean
Path Recovery to continue to operate in
compliance with the CMMC at both of the
subject properties. While this action might
allow one or more disabled persons to
enjoy the use of these dwellings, I do not
find that the request is necessary to allow
one or more disabled persons to enjoy the
use of a dwelling within the City.”
10/12/
2016

Deny
2 App
No.

[Sum 475 /
City 17640

[Sum 475 / City 17640

[Sum 476 / City 17641]: “Your request to
process one CUP application for two
properties at the subject location may
allow a CUP to be granted to enable Clean
Path Recovery to continue to operate in
compliance with the CMMC at both of the
subject properties. While this action might
allow one or more disabled persons to
enjoy the use of these dwellings, I do not
find that the request is necessary to allow
one or more disabled persons to enjoy the
use of a dwelling within the City.”
10/12/
2016

Deny
PA-
16-15
Casa Capri
Recovery
650ft
separation
[Sum 478 /
City 6425]

[Sum 479 /
City 6426]

[Sum 479 / City 6426]

[Sum 479 / City 6426]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable Casa Capri
Recovery to continue to operate in
compliance with the CMMC at Its current
location. In theory, this would allow one or
more disabled persons to enjoy the use of
this dwelling. However, I do not find that
the request is necessary to allow one or
more disabled persons to enjoy the use of
a dwelling within the City.”
5/11/
2016

Deny
3 App
No.

[Sum 482 /
City 6665]

[Sum 482 / City 6665]

[Sum 482 / City 6665]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable So Cal Recovery to
continue to operate in compliance with
the CMMC at its current location. While
this might allow one or more disabled
persons to enjoy the use of this dwelling, I
do not find that the request is necessary to
allow one or more disabled persons to
enjoy the use of a dwelling within the
City.”
5/18/
2016

Deny
PA-
16-25
North-
bound +
Raw
650ft
separation;
grandfather;
other

[Sum 485 /
City 6955]

[Sum 486 / City 6956]

[Sum 486 / City 6956]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
4 App
No.

[Sum 489 /
City 7529]

[Sum 489 /
City 7529

[Sum 490 / City 7530]

[Sum 490 / City 7530]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
PA-
16-32
North-
bound +
Raw
650ft
separation;
grandfather;
other

[Sum 493 /
City 8167]

[Sum 494 / City 8168]

[Sum 494 / City 8168]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
5 App
No.

[Sum 497 /
City 8796]

[Sum 498 / City 8797]

[Sum 498 / City 8797]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
PA-
16-34
North-
bound +
Raw
650ft
separation;
grandfather;
other

[Sum 501 /
City 9123]

[Sum 502 / City 9124]

[Sum 502 / City 9124]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
PA-
16-35
North-
bound +
Raw
650ft
separation;
grandfather;
other

[Sum 505 /
City 9557]

[Sum 506 / City 9558]

[Sum 506 / City 9558]: “Your request
establishes that the requested
6/2/
2016

Deny
6 App
No.

RA
Applicant
Type of RA
Request
Finding: RA
Requested
by Disabled
Individuals?
Finding: RA
Imposes No
Undue
Burden?
Finding: RA Will Not
Result in Direct Threat
to Health or Safety or
Property Damage?
Finding: RA is Necessary to Provide
Disabled Individuals with Equal
Opportunity?
RA
Decision
Date
Director’s
RA Decision
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
PA-
16-37
North-
bound +
Raw
650ft
separation;
grandfather;
other

[Sum 509 /
City 10009]

[Sum 510 / City 10010]

[Sum 510 / City 10010]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
7 App
No.

[Sum 513 /
City 10704]

[Sum 514 / City 10705]

[Sum 514 / City 10705]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
PA-
16-39
North-
bound +
Raw
650ft
separation;
grandfather;
other

[Sum 517 /
City 11402]

[Sum 518 / City 11403]

[Sum 518 / City 11403]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
8 App
No.

[Sum 521 /
City 11911]

[Sum 522 / City 11912]

[Sum 522 / City 11912]: “Your request
establishes that the requested
accommodation (waiver of the 650’
separation requirement) may allow a CUP
to be granted to enable some of these
properties to continue to operate in
compliance with the CMMC at their
current locations. While this might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/2/
2016

Deny
PA-
16-41
Casa Capri
Recovery
650ft
separation
[Sum 524 /
City 12395]

[Sum 525 /
City 12396]

[Sum 525 / City 12396]

[Sum 525 / City 12396]: “Your request to
waive the 650 foot separation
requirement may allow CUPs to be
granted to enable Casa Capri Recovery to
continue to operate In compliance with
the CMMC at the subject properties. While
this action might allow one or more
disabled persons to enjoy the use of one of
these dwellings, I do not find that the
request Is necessary to allow one or more
disabled persons to enjoy the use of a
dwelling within the City.”
6/10/
2016

Deny
9 App
No.

[Sum 528 /
City 12769]

[Sum 528 / City 12769]

[Sum 528 / City 12769]: “Your request to
waive the 650 foot separation
requirement may allow CUPs to be
granted to enable Windward Way
Recovery to continue to operate in
compliance with the CMMC at the subject
properties. While this action might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/10/
2016

Deny
PA-
16-43
Wind-
ward Way
Recovery
650ft
separation
[Sum 530 /
City 12966]

[Sum 531 /
City 12967]

[Sum 531 / City 12967]

[Sum 531 / City 12967]: “Your request to
waive the 650 foot separation
requirement may allow CUPs to be
granted to enable Windward Way
Recovery to continue to operate in
compliance with the CMMC at the subject
properties. While this action might allow
one or more disabled persons to enjoy the
use of one of these dwellings, I do not find
that the request is necessary to allow one
or more disabled persons to enjoy the use
of a dwelling within the City.”
6/10/
2016

Deny
10 App
No.

[Sum 534 /
City 13150]

[Sum 534 / City 13150]

[Sum 534 / City 13150]: “Your request to
waive the 650 foot separation
requirement may allow CUPs to be
granted to enable Casa Capri Recovery to
continue to operate In compliance with
the CMMC at the subject properties. While
this action might allow one or more
disabled persons to enjoy the use of one of
these dwellings, I do not find that the
request Is necessary to allow one or more
disabled persons to enjoy the use of a
dwelling within the City.”
6/10/
2016

Deny
PA-
16-63
Insight 650ft
separation
[Sum 536 /
City 15377]

[Sum 537 /
City 15378]

[Sum 538 / City 15379]

[Sum 537 / City 15378]: “The application
established that the waiver of the
separation requirements would allow one
or more disabled individuals to enjoy the
subject dwelling. However, approval of the
request is necessary to allow one or more
disabled individuals to enjoy the use of a
dwelling in the City.”
4/5/
2019

Deny
PA-
17-10
Ohio
House
650ft
separation;
grandfather

[Sum 543 /
City 13547]

[Sum 544 /
City 13548]

[Sum 544 / City 13548]

[Sum 543 / City 13547]: “The application
established that the waiver of the
separation requirement would allow one
or more individuals who are recovering
from drug and alcohol abuse to enjoy the
use of these dwellings. However, approval
of the request is not necessary to allow
one or more individuals who are
11/27/
2017

Deny
11 App
No.

Applications for Conditional Use Permits submitted by Group Homes subject to Zoning Chapter XVI, CMMC 13-323: Outcomes

Total Granted Denied
Applications for
13-323 CUPs
submitted by
Group Homes
26 NA NA
Submitted
Applications for
13-323 CUPs
withdrawn by
Group Homes
before Resolution
Issued
3 (Application Nos: PA-
16-30; PA-16-31; PA-16-36.)
NA NA
Remaining
Applications for
13-323 CUPs
decided by
Planning
Commission
resolution
23 (Application Nos: PA-
16-03; PA-16-04; PA-16-06;
PA-16-12; PA-16-13; PA-16-
15; PA-16-1; PA-16-25; PA-
16-26; PA-16-32; PA-16-33;
PA-16-34; PA-16-35; PA-16-
37; PA-16-38; PA-16-39;
PA-16-40; PA-16-41; PA-16-
42; PA-16-43; PA-16-44;
PA-16-63; PA-17-10.)
2 granted by PC
Resolution
(Application Nos:

PA-16-03; PA-16-

33.)
21 denied by PC Resolution
(Application Nos: PA-16-04; PA-16-06;
PA-16-12; PA-16-13; PA-16-15; PA-
16-18; PA-16-25; PA-16-26; PA-16-32;
PA-16-34; PA-16-35; PA-16-37; PA-
16-38; PA-16-39; PA-16-40; PA-16-41;
PA-16-42; PA-16-43; PA-16-44; PA-
16-63; PA-17-10 [PA-16-44 was
effectively denied because the PC failed
to pass a resolution granting it].)
Applications for
13-323 CUPs
decided in PC
Resolutions
appealed to City
Council and
decided by City
Council
Resolution
18 (Application Nos: PA-
16-04; PA-16-06; PA-16-15;
PA-16-18; PA-16-25; PA-16-
26; PA-16-32; PA-16-33;
PA-16-37; PA-16-38; PA-16-
39; PA-16-40; PA-16-41;
PA-16-42; PA-16-43; PA-16-
44; PA-16-63; PA-17-10.)

1 granted by
reversing PC
Resolution

(Application No:

PA-16-04.)
17 denied
• 16 denied by upholding PC
Resolution denials (Application
Nos: PA-16-06; PA-16-15; PA-16-18;
PA-16-25; PA-16-26; PA-16-32; PA-
16-37; PA-16-38; PA-16-39; PA-16-40;
PA-16-41; PA-16-42; PA-16-43; PA-
16-44; PA-16-63; PA-17-10.)
• 1 denied by reversing PC
Resolution granting CUP
(Application No: PA-16-33.)

December 2022

GROUP HOME

TECHNICAL ADVISORY

CA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT

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

1 1. EXECUTIVE SUMMARY

G
roup homes are an especially important type of housing for persons with disabilities.

By supporting their residents’ individualized needs while providing flexible and affordable housing options, group homes help persons with disabilities live in deinstitutionalized settings that facilitate their integration into local communities.

In recent years, some local governments have amended their zoning ordinances to add new regulations for group homes, particularly for recovery residences—group homes that provide housing for persons recovering from alcoholism or drug addiction. These amendments have raised concerns that local governments are not complying with their affirmative obligations under state planning and zoning laws to promote more inclusive communities and affirmatively further fair housing (AFFH). These amendments have also generated disputes and confusion over whether local governments are violating fair housing laws by discriminating against persons with disabilities or other protected characteristics.

Among other concerns, local land use policies and practices can block new group homes from opening, force existing ones to close, and impose costs, legal fees, and administrative burdens that make it difficult for group homes to operate. These concerns arise in the context of a shortage of adequate housing for persons with disabilities, which is a particularly acute problem within California’s broader housing crisis.

With concerns, disputes, and confusion continuing to grow, this Group Home Technical Advisory (Group Home TA) provides guidance on how state planning and zoning and fair housing laws apply when local governments attempt to regulate group homes through land use policies and practices. It is designed to help local governments comply with their obligations under these state laws, including, for example, the Planning and Zoning Law,
1 Housing Element Law,2 AFFH provisions,3 Anti-Discrimination in Land Use Law,4 and the Fair Employment and Housing Act (FEHA)5 (collectively, state housing laws).

The California Department of Housing and Community Development (HCD) is issuing the Group Home TA under its authority to provide guidance about housing law and

1 Gov. Code, § 65000 et seq.
2 Gov. Code, §§ 65580‐65589.11.
3 See, e.g., Gov. Code, §§ 8899.50, 65583, subds. (c)(5),(10). 4 Gov. Code, § 65008.
5 Gov. Code, § 12900 et seq.

2 policy.6 The primary intended users are local planning agencies and their staff, but group home operators, advocates, and residents may also benefit from this information.

Contents
• Background information about group homes and the essential role they play in providing housing for persons with disabilities (pp. 6-8); • General guidance about overall state housing law standards that (1) require local governments to remove constraints on group homes and affirmatively support them, and (2) prohibit local land use policies and practices that discriminate against group home owners, operators, and residents (pp. 8-23); • Specific guidance about how these standards apply to common issues that arise when local governments attempt to regulate group homes through local land use policies and practices (pp. 23-36);
• Lists of state government resource materials and contacts (pp. 36-37).

Policy Guidance Summary
The Group Home TA’s guidance for how local governments can comply with state housing laws regarding group homes includes the following:
• Housing Element Law and AFFH. Assess whether a policy or practice complies with Housing Element Law and AFFH requirements to avoid constraining housing for persons with disabilities and to affirmatively support this housing and its residents’ fair housing choices (pp. 8-12). Consider the Group Home TA’s examples of specific questions to guide local governments’ analysis of these issues (pp.11-12).
• Discriminatory Purpose or Effect. Ensure that the policy or practice does not discriminate on the basis of disability or other characteristics protected by state law. Apply the Group Home TA’s analysis on how to determine if a policy or practice has a discriminatory purpose or effect and how to implement flexible reasonable accommodation procedures that promptly and efficiently resolve accommodation requests in compliance with state housing laws and regulations. (pp. 12-20).

6 See, e.g., Health & Saf. Code, §§ 50152, 50406, subds. (e), (n), 50456, subd. (a), 50459, subd. (a); Gov. Code, § 65585, subd. (a). The Group Home TA is intended to provide general informational guidance only. It does not constitute legal advice.

3 • Supportive and Transitional Housing. Comply with the specific protections for group homes that fall within the definitions of supportive or transitional housing (pp. 20-22).
• State and Federal Law Distinctions. Confirm that a policy or practice complies with state housing laws even if it complies with federal law, because California law provides broader and different protections than federal law (pp. 22-23). • Definition of Single-Family Residence. Avoid restrictive definitions of single housekeeping units or single-family homes that impermissibly constrain group homes from locating in single-family zones. This includes, for example, avoiding definitions that equate group homes with boardinghouses, require all residents to share a common deed or lease, overly scrutinize residents’ living arrangements, or automatically exclude group homes that are owned by for-profit businesses or pay staff to help manage a home’s operations (pp. 24-25). • Group Homes that Do Not Provide Licensable Services. Allow group homes that operate as single-family residences and that do not provide licensable services to locate in single-family neighborhoods, subject only to the generally applicable, nondiscriminatory health, safety, and zoning laws that apply to all single-family residences (pp. 25-26).
• Group Homes that Provide Licensable Services to Six or Fewer Residents.

Allow group homes that operate as single-family residences and that provide licensable services to six or fewer residents to locate in single-family neighborhoods, subject only to the generally applicable, nondiscriminatory health, safety, and zoning laws that apply to all single-family residences (pp. 25- 26).
• Group Homes that Provide Licensable Services to Seven or More Residents. Ensure that any permitting or approval requirements for group homes that provide licensable services to seven or more residents are consistent with state housing laws (pp. 25-26).
• Preexisting Nonconforming Uses. Avoid retroactively applying a new zoning provision to group homes that were already operating before the provision was enacted (p. 27).
• Spacing Requirements. Avoid requirements for minimum spacing between group homes that go beyond those the Legislature has specified for limited types of licensed facilities and that conflict with state housing laws (pp. 27-29).

4 • Occupancy Limits and Building, Fire, or Other Health and Safety Code Requirements. Apply the same, generally applicable, nondiscriminatory occupancy limits and other building, fire, health, and safety requirements to group homes that apply to other housing, subject to reasonable accommodation requirements or the Legislature’s requirements for specific types of licensed facilities, such as those serving persons with limited mobility (p. 29). • Other Requirements for Group Home Operators and Residents. Avoid the other examples of special requirements for operators and residents discussed that can overly constrain group homes, conflict with the duty to affirmatively support this housing, and discriminate on the basis of disability and other protected characteristics. Examples discussed include, among other things, parking requirements, restrictions on residents or staff, neighborhood notice requirements, and local law enforcement registration requirements (pp. 30-33). • State Administrative Procedures for Investigating Licensing Issues. Use the Department of Health Care Services (DHCS) or California Department of Social Services (CDSS) processes for investigating and resolving complaints that unlicensed group homes are providing services that require licenses from these departments (pp. 33-35).
• Public Nuisance and Other Code Enforcement Actions. Use generally applicable, nondiscriminatory laws and code enforcement procedures to investigate and, if appropriate, prosecute group home operators that are creating public nuisances; violating building, housing, fire, or other public health and safety codes; committing fraud; or engaging in other unlawful activities (p. 36).

This summary and the Group Home TA are not intended as all-inclusive guides to every issue that might arise when local governments attempt to regulate group homes. But by following the Group Home TA’s framework and considering how it applies to the examples of common issues, local governments can ensure that their land use policies and practices comply with state housing laws.

Conclusion
Local governments that follow the Group Home TA’s guidance can still address concerns about group homeowners or operators that mistreat or abuse their residents, engage in insurance fraud or other illegal practices, or operate their homes in unsafe manners or in ways that create public nuisances. But research has shown that these problems are limited to a small minority of group homes, with the majority of group homes being well managed and operating compatibly with their surrounding neighborhoods, while providing essential housing resources. Focusing on individual

5 group homes that are problematic is more consistent with state law and helps avoid adopting overly broad and constraining zoning regulations for all group homes.

2. TERMS USED

D
ifferent laws use the term “group homes” to refer to different types of housing for different populations covered by different regulatory schemes. The following terms refer to various types of residences in which unrelated persons share the residence:
• Shared Living Residences—any housing shared by unrelated persons, including, for example, group homes, recovery residences, some community care residential facilities, some supportive and transitional housing, emergency shelters, boardinghouses, dormitories, etc.
• Group Homes—housing shared by unrelated persons with disabilities that provide peer and other support for their residents’ disability related needs and in which residents share cooking, dining, and living areas, and may, in some group homes, participate in cooking, housekeeping, and other communal living activities.
• Licensed Group Homes—group homes that provide services that require licenses under state law.
• Unlicensed Group Homes—group homes that may provide some supportive services for their residents but not services that require licenses under state law. • Recovery Residences or Sober Living Homes—group homes for persons recovering from alcoholism or drug addiction in which the residents mutually support each other's recovery and sobriety and that do not require licenses from DHCS because they do not provide alcoholism or drug addiction recovery and treatment services.
• Alcohol or Other Drug (AOD) Facilities—residential facilities that must obtain licenses from DHCS because they provide alcoholism or drug addiction recovery and treatment services.7

7 See, e.g., Health & Saf. Code, § 11834.02.

6 • Community Care Residential Facilities—residential facilities that must obtain licenses from CDSS because they provide 24-hour nonmedical care and supervision for adults or children.8

3. BACKGROUND

A
mong 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
B
ecause 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 c
ommunities of choice for many group homes are often single-family neighborhoods. Recovery residences, for example, often locate in single-family

8 See, e.g., Health & Saf. Code, §§ 1502, 1568.01, 1569.2, subds. (o)-(p). 9 Broadmoor San Clemente Homeowners Ass’n v. Nelson, (1994) 25 Cal.App.4th 1, 6, quoting Stats. 1993, ch. 1277, § 18; 12 West Cal.Legis.Services, p. 6038. 10 See, e.g., Gov. Code, §§ 8899.50, 65583, subds. (a)(1), (a)(7), (c)(10). 11 Broadmoor, 25 Cal.App.4th at 9, quoting Rhodes v. Palmetto Pathway Homes, Inc. (South Carolina 1991) 303 S.C. 308, 400 S.E.2d 484, 486.

7 neighborhoods because this helps “‘recovering addicts’ reintegration into society and redevelopment of self-sufficiency.”12
But “for every group home that is successfully established, experts estimate that another closes or never opens because of community opposition.”13 The legislative history of the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., and federal Fair Housing Act (“FHA”), 42 U.S.C. section 3601 et seq., show that the Legislature and Congress considered local governments’ longstanding practices of using land use ordinances to exclude group homes when amending these civil rights laws to protect housing for persons with disabilities.14 Loc
al 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
T
his is not to minimize very real problems that have arisen at some group homes. In particular, some local governments have raised concerns based on problems at some recovery residences operated by unscrupulous owners seeking to maximize their profits

12 Laurie C. Malkin, Troubles at the Doorstep: The Fair Housing Amendments Act of 1988 and Group Homes for Recovering Substance Abusers (1995) 144 U. Pa. L. Rev. 757, 772-73 & nn. 55-60; Oxford House, Inc. v. Township of Cherry Hill (“Cherry Hill”) (D. New Jersey 1992) 799 F.Supp. 450, 453.
13 Malkin, supra, n. 12 at 795 & n. 171.
14 See, e.g., Broadmoor, supra, 25 Cal. App. 4th at 6, quoting Stats.1993, ch. 1277, § 18; 12 West Cal.Legis.Services, p. 6038; H.R. Rep. 100-711, 23-24, reprinted in 1988 U.S.C.C.A.N. 2173, 2184-2185.
15 See, e.g., Malkin, supra, n. 12 at 797-798 & nn. 181-184; Council of Planning Librarians, There Goes the Neighborhood - A Summary of Studies Addressing the Most Often Expressed Fears about the Effects Of Group Homes on Neighborhoods in which They Are Placed (Bibliography No. 259) (Apr. 1990); Senate Comm. on Health Analysis of SB 786, Feb. 17, 2017 at 3, 5.
16 Daniel Lauber, A Real LULU: Zoning for Group Homes and Halfway Houses Under The Fair Housing Amendments Act of 1988 (Winter 1996) 29 J. Marshall L. Rev. 369, 384-385 & n. 50-52.

8 at the expense of their residents’ wellbeing. These problems have included neglecting and abusing residents, engaging in insurance fraud, and creating public nuisances.17 While these are very real concerns, the examples of exploitive, abusive, and illegal practices appear to be limited to a small minority of recovery residences.18 Moreover, in contrast to laws specially designed to address fraud, violations of state licensing laws, or health and safety violations and public nuisances, local land use policies are often too blunt and too broadly sweeping for properly addressing these problems. They risk continuing the history of discrimination against group homes by doing more to constrain and exclude well-functioning ones than they do to abate problems at dysfunctional ones.

Before local governments amend their zoning ordinances to regulate group homes, they should first determine if the proposed amendments will comply with state housing laws.

They should apply the Group Home TA’s framework and consider its examples of common issues that arise when local governments attempt to use land use laws to regulate group homes.

4. FRAMEWORK FOR ASSESSING IF LOCAL LAND USE POLICIES AND PRACTICES COMPLY WITH STATE HOUSING LAWS’ PROTECTIONS

OF GROUP HOMES

Conf
irming that local land use policies and practices for group homes comply with state housing laws involves assessing whether they comply with requirements for local governments to affirmatively support this housing in their communities and whether they discriminate on the basis of disability or other protected characteristics. Both assessments are necessary to confirm that a local land use policy or practice complies with state housing laws. Although the Group Home TA discusses Housing Element Law

17 See, e.g., Samantha Schmidt, Drug Rehab ‘Mogul’ Convicted of Sexually Assaulting 7 Female Patients at Treatment Centers, Washington Post, Feb. 27, 2018, https://www.washingtonpost.com/news/morning-mix/wp/2018/02/27/drug-rehab-mogul- convicted-of-sexually-assaulting-7-female-patients-at-treatment-centers/; Danielle L.

Liberman, Current Development, Not Too Sunny in the Sunshine State: The Need to Improve Florida’s Opioid Abuse Treatment Centers to Combat the National Public Health Crisis, 31 Geo. J. Legal Ethics 723, 735-738 (2018). 18 See, e.g., Government Accounting Office, Report to Congressional Requesters:

Substance Use Disorder – Information on Recovery Housing Prevalence, Selected States’ Oversight, and Funding (“GAO Report”) (March 2018) at 7-9 & n.18, available at https://www.gao.gov/assets/gao-18-315.pdf; see also studies cited supra, nn. 15-16.

9 and AFFH requirements before fair housing laws, local governments can assess their compliance with these laws in any order.

A. DO THE POLICIES AND PRACTICES COMPLY WITH HOUSING ELEMENT LAW AND AFFH REQUIREMENTS ?

Calif
ornia 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
A
s of January 1, 2019, AB 686 built upon these existing obligations to broadly require all state or local governments involved in programs or activities related to housing or community development to affirmatively further fair housing and take no actions inconsistent with this requirement.21 The Legislature defined AFFH, to mean:
taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.
22 In
AB 686, the Legislature also amended Housing Element Law to include new, specific AFFH requirements starting in 2021 for local governments when they prepare and implement housing elements. These requirements include, for example, identifying and addressing fair housing issues; analyzing integration and segregation patterns;

19 See, e.g., Gov. Code, § 65583, subds. (a)(1), (a)(7); Housing Elements Building Blocks, available at https://www.hcd.ca.gov/planning-and-community- development/housing-elements/building-blocks.
20 See, e.g., Gov. Code, § 65583, subds. (a)(7), (c).
21 Gov. Code, § 8899.50, subd. (a)(2).
22 Id. at (a)(1).

10 analyzing patterns and trends of disparate housing needs and disproportionate access to housing opportunities; and setting specific goals, adopting responsive policies, and taking effective actions that will affirmatively further fair housing.23 Taken together, the earlier Housing Element Law provisions and the newer AFFH requirements clarify local governments’ affirmative responsibilities regarding group homes. As the historical record and California and federal legislative histories confirm, local land use laws have too often treated group homes as problems to be avoided or restricted. Local governments’ obligations under state law have been misunderstood as being limited to avoiding discrimination and meeting a minimum threshold for fulfilling the locality’s share of regional housing needs for persons with disabilities.

But local governments must go beyond these basic requirements by actively supporting the inclusion of group homes in their communities and removing constraints on this housing. This includes, for example, supporting the housing choices of individuals with protected characteristics.
24 Persons with disabilities have the right to live in accessible housing in the most integrated setting appropriate to their needs, which includes having access to disability-related support and services that individuals need to live in deinstitutionalized settings.25 Local governments must also avoid policies that unjustifiably displace group home occupants from their homes.26 HCD h
as previously issued guidance about local governments’ obligations under older Housing Element Law provisions and the more recently enacted AFFH provisions.

These guidance documents are available through links listed under the Planning and Community Development tab on HCD’s website.27 Local governments should read the detailed guidance provided in these documents, which include:
• Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements (April 2021 Update),28
•
Housing Element Building Blocks,29

23 See, e.g., Gov. Code, § 65583, subd. (c)(10).
24 See, e.g., Gov. Code, § 65583, subd. (c)(10)(A)(iv); 24 C.F.R § 5.151 (2022). 25 See, e.g., Olmstead v. Zimring (1999) 527 U.S. 581, 602, 607; 24 C.F.R. § 5.151 (2022); 28 C.F.R. § 35.130(d), (e)(1) (2022).
26 Gov. Code. § 65583, subd. (c)(10)(A)(v).
27 Available at https://www.hcd.ca.gov/.
28 Available at http://www.hcd.ca.gov/community-
development/affh/docs/AFFH_Document_Final_4-27-2021.pdf. 29 Available at https://www.hcd.ca.gov/planning-and-community-development/housing- elements/building-blocks.

11 • Housing Element Building Blocks – Persons with Disabilities,30 and • Housing Element Building Blocks – Constraints for People with Disabilities.31 HCD’s
earlier guidance documents discuss in more detail how local governments can assess their compliance with Housing Element Law and AFFH requirements. The following types of questions can help local jurisdictions assess if they are meeting their affirmative obligations to protect and promote the housing rights of persons with disabilities:32
•
Has the jurisdiction analyzed the special housing needs of persons with disabilities by including in this analysis, among other things:
o data about the number of persons and households in this group? o quantifiable and qualitative descriptions of their housing needs and descriptions of existing resources or programs for them? o assessments of unmet needs?

•
Has the jurisdiction analyzed and explained how it will meet those needs by, among other things:
o identifying potential programs, policy options, and resources? o discussing local resources and service providers?
o identifying housing types that can accommodate persons with disabilities? o developing housing programs or strategies to address identified needs?

•
Has the jurisdiction analyzed and removed constraints on housing for persons with disabilities by, among other things:
o analyzing potential governmental constraints to the development, improvement, and maintenance of housing for persons with disabilities? o examining ordinances, policies, or practices that are unjustifiably having the effect of constraining or excluding housing variety and availability for persons with disabilities?
o providing reasonable accommodations for persons with disabilities through programs that remove constraints?
o ensuring that its reasonable accommodation procedures comply with state fair housing laws and regulations?
o in general, demonstrating local efforts to remove constraints?

30 Available at https://www.hcd.ca.gov/planning-and-community-development/housing- elements/building-blocks/people-disabilities-including-developmental-disabilities. 31 Available at https://www.hcd.ca.gov/planning-and-community-development/housing- elements/building-blocks/constraints-people-disabilities. 32 See, e.g., Gov. Code, §§ 8899.50, 65583, subds. (a)(4), (7), (c)(3), (5), (10).

12 •
Has the jurisdiction met its AFFH obligations for persons with disabilities by, among other things:
o actively supporting their integration into the local community? o actively supporting their fair housing rights, including their right to choose where to live and to access housing opportunities with services and support for their disabilities?
o considering whether policies and practices are displacing persons with disabilities from their homes?
o examining and redressing segregated living patterns?
o fostering the integration of persons with disabilities into the community? o conducting outreach and education in the community to support the fair housing rights of persons with disabilities?
o identifying and analyzing any policies or practices that have the purpose or effect of discriminating against persons with disabilities, perpetuating their segregation, or impeding their integration?
o examining any justifications for policies or practices with discriminatory effects and identifying and implementing less discriminatory alternatives?

•
Has the jurisdiction conducted individualized, evidence- and data-based research and analysis, including for:
o any specific benefits that it believes a land use policy or practice regarding group homes will provide to persons with disabilities?
o any specific health or safety issues that a jurisdiction believes justify land use polices or practices regarding group homes?33

B. DO THE POLICIES AND PRACTICES UNLAWFULLY DISCRIMINATE BASED ON DISABILITY OR OTHER PROTECTED CHARACTERISTICS ?

I
n addition to the laws requiring local governments to affirmatively support group homes, state fair housing laws prohibit jurisdictions from discriminating against them.34 For example, the Anti-Discrimination in Land Use Law, Government Code section 65008,

33 See, e.g., Cal. Code Regs., tit. 2, §§ 12042, subd. (f), 12179, subd. (b)(3). 34 Fair housing laws protect group homes. See, e.g., Cal. Code Regs., tit. 2, § 12005, subd. (o); Lakeside Resort Enterprises, LP v. Board of Sup's of Palmyra Twp. (3d Cir. 2006) 455 F.3d 154, 159–60. See also infra at pp. 22-23 (explaining that while federal fair housing cases can provide important guidance for interpreting state fair housing laws, California’s fair housing and disability rights laws provide broader protections than federal laws).

13 prohibits discriminatory local land use policies and practices and declares any such discriminatory policies or practices null and void.35 This includes discrimination based on any characteristic protected by the FEHA and other state civil rights laws.36 Disability rights protections extend to persons with disabilities, persons regarded or treated as having, or having had, a disability, or persons with a record or history of a disability.37 Complying with fair housing requirements for individuals with certain types of disabilities, such as individuals with developmental disabilities, will not excuse unlawful discrimination against other individuals with other types of disabilities, such as individuals recovering from alcoholism or drug addiction. 38 T
he Anti-Discrimination in Land Use Law also includes protections not specified in the FEHA, such as prohibitions against land use policies and practices that discriminate against housing for “persons or families of very low, low, moderate, or middle income.”39 Therefore, depending on a group home’s intended occupants, jurisdictions must consider whether their policies discriminate against not only persons with disabilities, but, for example, very low- or low income households if the residence is designed for persons with disabilities who have experienced homelessness.

State fair housing laws protect not only group homes’ occupants, but other persons associated with them or other persons who may be harmed by discriminatory land use policies and practices, such as group homes’ operators, owners, and landlords.40

35 Gov. Code, § 65008, subds. (a), (b)(1). The FEHA similarly prohibits discriminatory land use policies and practices. Gov. Code, § 12955, subd. (l); Cal. Code Regs., tit. 2, §§ 12161, 12162. See also Government Code section 11135 (prohibiting discrimination by recipients of state funding or financial assistance). 36 See, e.g., Gov. Code, §§ 65008, subds. (a)(1)(A), (b)(1)(B)(i), 65583, subd. (c)(5). 37 Gov. Code, § 12926, subds. (j), (m); 42 U.S.C. § 3602(h); Joint Statement of the Department of Housing and Urban Development and the Department of Justice – State and Local Land Use Laws and Practices and the Application of the Fair Housing Act (Nov. 10, 2016) at 6 (“HUD – DOJ 2016 Jt. Stmt. on Local Land Use Laws”), available at https://www.justice.gov/opa/file/912366/download.
38 Recovering from alcoholism or drug addiction is a disability protected by fair housing laws. See, e.g., City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802, 803 (9th Cir.1994), aff'd City of Edmonds v. Oxford House (1995) 514 U.S. 725; Cherry Hill, supra, 799 F.Supp. at 459; HUD – DOJ 2016 Jt. Stmt. on Local Land Use Laws at

6. 39 Gov. Code, § 65008, subds. (a)(3), (b)(1)(C).
40 Gov Code § 65008, subds. (a)(1)(A), (b)(1)(B)(ii), incorporating Gov. Code, § 12955, subd. (m).

14 Identifying and correcting discriminatory land use policies and practices requires understanding three general types of discrimination:

1. i ntentional discrimination,

2. d iscriminatory effects, and

3. failure to provide reasonable accommodations.41

i. I NTENTIONAL DISCRIMINATION

I
ntentional 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 I
ntentional 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
E
stablishing intentional discrimination often involves evidence that persons with protected characteristics were treated worse than others without those characteristics.

But this is only one way to prove discrimination.46 Intentional discrimination does not require “the existence of a similarly situated entity who or which was treated better . . . .”47 A local land use policy or practice that “inflicts collateral damage by harming some, or even all, individuals from a favored group in order to successfully

41 Although these are some of the most common, general types of discrimination issues that arise with local land use policies and practices, this is not an exhaustive list. See, e.g., Cal. Code Regs., tit. 2, §§ 12161-62 (listing more detailed examples). 42 Gov. Code, § 12955.8; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 217- 218; Cal. Code Regs., tit. 2, § 12041, subd. (b).
43 Gov. Code, § 12955.8.
44 Cal. Code Regs., tit. 2, § 12041, subd. (b).
45 Cal. Code Regs., tit. 2, § 12161, subd. (c).
46 Pacific Shores Properties, LLC v. City of Newport Beach (9th Cir. 2013) 730 F.3d 1142, 1158-1159.
47 Id. at 1158.

15 har
m members of a disfavored class does not cleanse the taint of discrimination.”48 Som
etimes it “simply underscores the depth of the defendant’s” discriminatory intent.49 I
ntentional 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 avoi
d liability for a law or policy that facially discriminates against persons with disabilities, a local government must show that the policy:
(1) either (a) actually benefits persons with disabilities or (b) is justified by individualized safety concerns raised by the persons the policy affects, and (2) is “the least restrictive means of achieving” one or both of these goals.52

48 Id. at 1159.
49 Id. See also id. at 1158 – 1162 & n. 23.
50 Cal. Code Regs., tit. 2, § 12040, subd. (c).
51 Pacific Shores Properties, 730 F.3d at 1160 n. 23, internal quotations and citations omitted.
52 Cal. Code Regs., tit. 2, §§ 12042, subd. (f), 12161, subd. (d); Larkin v. State of Mich.

Dept. of Social Services (6th Cir. 1996) 89 F.3d 285, 290.

16 These justifications for facial discrimination are “extremely narrow exception[s],” and jurisdictions should be wary of relying on them.53 Jurisdictions must support them with at least, if not more than, the specific and thorough analysis and evidence required by Housing Element Law, including its AFFH provisions. Generalized concerns or ones based on stereotypes will not suffice.54 Jurisdictions should also consider less discriminatory alternatives.55 And in light of jurisdictions’ obligations to “protect existing residents from displacement” and otherwise affirmatively further fair housing, laws or policies that displace group home occupants from their current, chosen residences warrant especially thorough scrutiny.56

DIRECT EVIDENCE

D
irect 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

E
ven when policies or statements in themselves do not establish a discriminatory intent, local land use policies and practices can still be found discriminatory based on circumstantial evidence, which can include: (1) the policy’s or practice’s impact, (2) its historical background, (3) the more recent, specific sequence of events leading up to it, (4) departures from usual procedures, (5) departures from usual substantive standards, and (6) the legislative or administrative history.58

53 Dothard v. Rawlinson (1977) 433 U.S. 321, 334; Bangerter v. Orem City Corp. (10th Cir. 1995) 46 F.3d 1491, 1504; see also Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 31 nn. 7, 8 (explaining that public policy exceptions to Unruh Act’s prohibitions of discrimination are “rare” and “should be carefully and narrowly construed”). 54 Larkin, 89 F.3d at 291-292 (rigorously examining and rejecting an agency’s justifications and evidence for spacing and community notice requirements for group homes in holding that they violate the FHA).
55 Cal. Code Regs., tit. 2, § 12042, subd. (f).
56 See, e.g., Gov. Code, § 65583, subds. (c)(10)(A)(iv), (v). 57 See, e.g., Cal. Code Regs., tit. 2, § 12042, subds. (c)-(e). 58 HUD – DOJ 2016 Jt. Stmt. on Local Land Use Laws at 4, citing Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1977) 429 U.S. 252, 265-68.

17 These factors are not the only ones that may be considered.59 And “very little evidence” is needed to “raise a genuine issue” of a discriminatory intent.60 Procedural or substantive departures from AFFH or housing element requirements when regulating group homes would be relevant evidence to consider in assessing if local officials acted for discriminatory purposes.
ii. D ISCRIMINATORY EFFECTS

Ev
en 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 I
f 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 G
eneralized or hypothetical analysis of these elements will not suffice. They must be “supported by evidence.”64
T
o comply with Housing Element Law, including its AFFH provisions, a jurisdiction should not wait for group home occupants or operators to bring discriminatory effects claims but should research on its own whether its policies or practices have discriminatory effects on these residences. If so, the jurisdiction should also complete

59 Pacific Shores Properties, 730 F.3d at 1159.
60 Id.; Gov. Code, § 12955.8; Cal. Code Regs., tit. 2, § 12041, subd. (b). 61 Cal. Code Regs., tit. 2, § 12060, subd. (b).
62 Cal. Code Regs., tit. 2, § 12062, subd. (b).
63 Id.
64 Cal. Code Regs., tit. 2, § 12062, subd. (c).

18 the evidence-based analysis needed to determine whether there are legally sufficient justifications for these discriminatory policies or practices, including analyzing less discriminatory alternatives.
iii. R EASONABLE ACCOMMODATIONS

Dis
crimination 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 c
ommon issues, among others, can arise when group home operators or occupants request reasonable accommodations in local land use policies and practices:

1. While a jurisdiction should adopt a formal reasonable accommodations process so that, among other reasons, the public knows how to request accommodations, these processes should be flexible enough to promptly and efficiently resolve accommodations requests without creating

65 Gov. Code, § 12927, subd. (c)(1).
66 Cal Code Regs., tit. 2, § 12179.

19 unnecessary procedural barriers.67 These processes should allow group home operators to request reasonable accommodations “at any time . . . while seeking or enjoying a housing opportunity,” including, for example, when: (1) considering whether to buy or lease a home; (2) filing a permit application, or (3) responding to allegations they have violated a zoning code or other ordinance.68 If local govern
ments are repeatedly denying accommodation requests or delaying resolving them, they should analyze whether this is due to the requestors failing to provide sufficient information and support or to procedures erecting impermissible barriers to accommodations.69

2. “‘[I]n
most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary’” to establish that a person has a disability or that this disability requires a reasonable accommodation in a land use policy or practice.70 A reliable third party with knowledge of a person’s disabilities can usually provide sufficient information for assessing a request for an accommodation in a local land use policy or practice.71 For example, it is well established that persons recovering from alcoholism or drug addiction have disabilities and that recovery residences support their recoveries. Thus, information provided by a recovery residence operator, such as its occupancy or other policies, for example, should generally suffice to establish its occupants have disabilities and the justifications for the

67 See, e.g., id. at §§ 12176, subd. (c), 12178.
68 See, e.g., id. at § 12176, subd. (f).
69 See, e.g., id. at § 12177; see also these examples of reasonable accommodation ordinances: Oakland Mun. Code, ch. 17.131, available at https://library.municode.com/ca/oakland/codes/planning_code?nodeId=TIT17PL_CH17 .131REACPOPR; Model Ordinance for Providing Reasonable Accommodation Under Federal and State Fair Housing Laws (“Model Reasonable Accommodation Ordinance”), Mental Health Advocacy Services, Inc. (September 2003), available at https://www.hcd.ca.gov/community-development/building-blocks/program- requirements/address-remove-mitigate-
constraints/docs/model_reasonable_accomodation_ordinance.pdf. 70 Supplement to Initial Statement of Reasons for FEHC’s Fair Housing Regulations at 26, quoting HUD DOJ May 17, 2004 Joint Statement on Reasonable Accommodations, available at https://www.dfeh.ca.gov/wp-
content/uploads/sites/32/2019/07/FairHousingReg-
SupplementInitialStatementReasons.pdf.
71 Cal. Code Regs., tit. 2, § 12178.

20 r
equested accommodations, allowing local officials to assess the request without probing into the occupants’ private medical records or histories.72

3. De
nials 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

I
f a group home operates in ways that fall within the statutory definitions of supportive housing or transitional housing, jurisdictions must also comply with Housing Element Law’s specific protections of these types of housing. This section summarizes these protections, which are explained more fully in other HCD guidance documents, including:
• Housing Accountability Act Technical Assistance Advisory (Sep. 15, 2020),74 •
Housing Element Building Blocks – Zoning for a Variety of Housing Types,75 •
Senate Bill 2 – Legislation Effective January 1, 2008: Local Planning and Approval for Emergency Shelters and Transitional and Supportive Housing (Apr. 10, 2013 update),76 and
• Transitional and Supportive Housing, Chapter 183, Statutes of 2013 (SB 745) (Apr. 24, 2014).77

72 Id; Regional Economic Community Action Program, Inc. v. City of Middletown (2d Cir. 2002) 294 F.3d 35, 47-48 & n.3, superseded on other grounds as stated in Brooker v.

Altoona Housing Authority (W.D. Penn 2013) 2013 WL 2896814 at *9 n. 8. 73 Cal. Code Regs., tit 2, § 12179.
74 Available at https://www.hcd.ca.gov/community-development/housing- element/housing-element-memos/docs/hcd-memo-on-haa-final-sept2020.pdf. 75 Available at https://www.hcd.ca.gov/planning-and-community-development/housing- elements/building-blocks/zoning-variety-of-housing-types. 76 Available at https://www.hcd.ca.gov/community-development/housing- element/housing-element-memos/docs/sb-2-combined-update-mc-a11y.pdf. 77 Available at https://www.hcd.ca.gov/community-development/housing- element/housing-element-memos/docs/sb745memo042414.pdf.

21 Supportive Housing Definition. Government Code section 65582, subdivision (g), defines supportive housing to mean housing that:
• has no limit on the length of stay;
• is linked to onsite or offsite services that assist residents in improving their health status, retaining the housing, and maximizing their ability to live and, where possible, work in the community; and
• is occupied by the “target population,” which “means persons with low incomes who have one or more disabilities, including mental illness, HIV or AIDS, substance abuse, or other chronic health condition, or individuals eligible for services provided pursuant to the Lanterman Developmental Disabilities Services Act . . . and may include, among other populations, adults, emancipated minors, families with children, elderly persons, young adults aging out of the foster care system, individuals exiting from institutional settings, veterans and homeless people.”
78 T
ransitional Housing Definition. Government Code section 65582, subdivision (j), defines “transitional housing” to mean “buildings configured as rental housing developments, but operated under program requirements that require the termination of assistance and recirculating of the assisted unit to another eligible program recipient at a predetermined future point in time that shall be no less than six months from the beginning of the assistance.” Therefore, in contrast to supportive housing, transitional housing may limit the length of stay, is not required to provide supportive services (though may be linked to them), and is not limited to residents within the “target population.”
Key Protections for Supportive and Transitional Housing. If a group home operates in ways that qualify it as either supportive or transitional housing, jurisdictions must comply with Housing Element Law’s additional protections for these types of housing.

This includes the requirement that supportive and transitional housing “shall be considered a residential use of property and shall be subject only to those restrictions that apply to other residential dwellings of the same type in the same zone.”
79 In other words, transitional housing and supportive housing are permitted in all zones allowing residential uses and are not subject to any restrictions (e.g., occupancy limit) not imposed on similar dwellings (e.g., single-family home, apartments) in the

78 Gov. Code, § 65582, subd. (i).
79 Gov. Code, § 65583, subd. (c)(3), emphasis added.

22 same zone in which the transitional housing and supportive housing is located. For example, transitional housing located in an apartment building in a multifamily zone is permitted in the same manner as an apartment building in the same zone, and supportive housing located in a single-family home in a single-family zone is permitted in the same manner as a single-family home in the same zone.

In addition, if supportive housing meets the specifications of Government Code section 65650 et seq, it must be treated as “a use by right in all zones where multifamily and mixed uses are permitted . . . .”
80 By-right approval means that the
use cannot require a conditional use permit or other discretionary review, even if a permit is required for other residential dwellings of the same type in the same zone. 81 This nondiscretionary (i.e., ministerial) approval requirement renders the proposed use statutorily exempt from the California Environmental Quality Act if the project “complies with written, objective development standards and policies.”82 W
hen 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 L
egislature 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 Ex
amples of California providing “greater rights and remedies” than federal law include, among other things, state law’s broader definitions of disabilities (e.g., only requiring a mere limitation of a major life activity for a mental or physical condition to qualify as a

80 Id.
81 Id.
82 Gov. Code, § 65651, subd. (b)(2); Pub. Resources Code, § 21080, subd. (b)(1); Cal.

Code Regs., tit. 14, §§ 15002, subds. (i)(1), 15268(a). 83 See supra, n. 74.
84 Gov. Code, §§ 12955.6, 12993.
85 Gov. Code, § 12926.1, subd. (a).

23 d
isability 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
T
herefore, 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).

24 A. DEFINITIONS OF SINGLE HOUSEKEEPING UNITS OR SINGLE-FAMILY HOMES

Z
oning 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
P
ersons with disabilities choose to live in group homes because these homes provide peer and other support for their residents’ disability-related needs, while helping to integrate residents into their communities. Group homes should be treated as single- housekeeping units if they are designed to foster these mutually supportive peer relationships; allow open-ended stays or at least, on average, stays of more than a few weeks; and provide shared kitchen, dining, living, and other spaces in which residents may, in certain homes, participate in basic, shared cooking and housekeeping activities.

In general, localities should avoid including provisions in definitions of shared- housekeeping units, single-family homes, or other single residential dwellings that:
• Equate group homes with boardinghouses. Group homes’ shared communal purposes to provide peer and other support for their occupants’ disability-related needs and to help integrate them into their local communities makes this an inapt comparison. Boardinghouses do not provide communal housing designed to support the needs of persons with disabilities.
• Require all residents to share a common deed or lease. The California Constitution’s protections of personal privacy extend to individuals’ choices to live together even when they are not joint owners or tenants.90 And group homes can still provide a communal setting that supports their residents’ needs without all residents being joint owners or tenants.
• Automatically exclude group homes that are owned by for-profit businesses or that pay a house manager or resident to help manage a

89 See, e.g., City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123. 90 See, e.g., Coalition Advocating Legal Housing Options v. City of Santa Monica (2001) 88 Cal.App.4th 451, 458-459.

25 home’s
operations. These are well-established models for group homes.91 And persons with certain types of disabilities may need supportive, in-house staff to be able to live in a group home.
• O
verly 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 l
ocal 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
Bu
t local policies that require all group homes with more than six residents to obtain conditional use or other permits inappropriately turn state laws designed to remove constraints on small, licensed group homes into constraints on the many other group homes that do not require state licenses.

91 Douglas L. Plocin and Diane Henderson, A Clean and Sober Place to Live:

Philosophy, Structure, and Purported Therapeutic Factors in Sober Living Homes, 40 J Psychoactive Drugs (2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2556949/ (discussing how a “‘strong manager’ model of operations” can function in ways that provide the same or similar benefits of a communal environment and peer support as group homes that residents own and operate themselves). 92 See, e.g., Health & Saf. Code, §§ 1566.3, 1569.85,11834.23.

26 To comply with the Health and Safety Code’s exemptions for small, licensed group homes and with housing element, AFFH, and fair housing requirements to remove constraints on and prevent discrimination against group homes, local governments should follow these guidelines:
• Group homes that operate as single-family residences and that do not provide licensable services should be allowed in single-family neighborhoods, subject only to the generally applicable, nondiscriminatory health, safety, and zoning laws that apply to all single-family residences.

This is true even if these homes have more than six residents. Because these homes are not providing licensable services, they should be treated the same as other residences.93
•
Group homes that operate as single-family residences and that provide licensable services to six or fewer residents should be allowed in single- family neighborhoods, subject only to the generally applicable, nondiscriminatory health, safety, and zoning laws that apply to all single- family residences. This complies with, among other things, the Health and Safety Code protections for these smaller, licensed group homes. • Group homes operating as single-family residences that provide licensable services to more than six residents may be subject to conditional use or other discretionary approval processes. Local governments must still provide flexible and efficient reasonable accommodations in these permitting processes.

This means that some requests for exceptions to permitting processes should be resolved through reasonable accommodation procedures instead of conditional use procedures.
94 In addition, any substantive requirements for these group homes must still comply with the local government’s obligations to remove constraints on housing for persons with disabilities, affirmatively support it, and prevent discrimination against it. The next sections provide further guidance on how to meet these obligations.95

93 See also supra at pp. 20-22 (discussing specific protections for supportive and transitional housing).
94 See, e.g., Letter from Attorney General Bill Lockyer to The Hon. William Hartz, Mayor of Adelanto (May 15, 2001) (explaining that relying on conditional use procedures to address reasonable accommodation requests can lead to fair housing violations). 95 Although the Group Home TA focuses on group homes operating as single-family residences, the same principles apply to those operating, for example, as multifamily residences in multifamily zones.

27 C. RETROACTIVE COMPLIANCE

Zoni
ng 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

S
pacing requirements restrict group homes from locating within a specific distance of other group homes. Local governments should be very wary about imposing spacing requirements that extend beyond the limited requirements the Legislature has deemed necessary to prevent the overconcentration of certain licensed facilities to ensure their residents are integrated into their communities.

The Legislature has found spacing requirements justified only for specific types of licensed facilities. Community care facilities, intermediate care facilities serving persons with developmental disabilities who require intermittent but recurring skilled nursing care, and pediatric day health and respite care facilities that provide services to children with particularly acute or chronic healthcare needs and their parents or guardians must be separated by at least 300 feet. Congregate living health facilities serving persons with terminal or life-threatening illnesses or with catastrophic or severe disabilities

96 See, e.g., Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 552; Edmonds v. Los Angeles County (1953) 40 Cal.2d 642, 651.

28 acqui
red through trauma or nondegenerative neurologic illness must be separated by at least 1,000 feet.97
Fur
ther 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 C
ontrary to these carefully crafted limitations on spacing requirements, some local governments have imposed spacing requirements on recovery residences, including those already in operation. These spacing requirements are very unlikely to withstand scrutiny under state housing laws. Among other things:
• They are at odds with the Legislature’s narrowly crafted spacing requirements in section 1267.9.
• They can conflict with local governments’ obligations to, for example, remove constraints on housing for persons with disabilities, affirmatively support such housing, avoid policies that displace persons with protected characteristics, and affirmatively support their right to live where they choose.99
•
They are very hard to justify based on the narrow exceptions that state fair housing laws allow for facial discrimination. Justifications based on the goal of avoiding overconcentration are difficult to establish and require substantial and detailed statistical evidence establishing that an overconcentration of recovery residences has reached the point where it is, for example, creating an institutionalized living environment or perpetuating segregation within specific

97 Health & Saf. Code, §§ 1267.9, subd. (b) (setting spacing requirements for these types of community care residential facilities), 1502 (defining facilities that are subject to 300-foot spacing requirements), 1250 (defining facilities subject to 1000-foot spacing requirements).
98 Health & Saf. Code, § 1267.9.
99 See, supra, at pp. 9-12.

29 neigh
borhoods or communities. Merely comparing the number of recovery residences in one city with the number in others generally will not suffice.100 • T
hey can lack the flexibility required to reasonably accommodate recovery residences and their occupants’ disability-related needs. • The Legislature has repeatedly rejected attempts to impose spacing requirements on recovery residences. As recently as 2018, for instance, the Legislature declined to adopt SB 786, a bill that would have imposed a 300-foot spacing requirement on recovery residences.101 The legislative history shows that the Legislature considered the lack of clear data showing that this spacing requirement would benefit persons recovering from alcohol and drug addiction.

The Legislature also considered concerns that this spacing requirement would discriminate on the basis of disability, impede opening new recovery residences, reduce access to much needed recovery and treatment services, and stigmatize recovery residences and their occupants.102
In
sum, local governments should avoid imposing spacing requirements that extend beyond those specified in Health and Safety Code section 1267.9.103

100 See, supra, at pp. 15-16. Spacing requirements like this also need to withstand scrutiny under other standards for assessing intentional discrimination or discriminatory effects. See, supra, at pp. 12-19.
101 Sen Bill No. 786 (2017-2018 Reg. Session). This bill is one of many times that the Legislature has declined to enact, or the Governor has vetoed bills attempting to regulate recovery residences. See, e.g., Sen. Com. on Health, analysis of Sen. Bill 786 (2017-2018 Reg. Sess.) at 7-8 (listing several other bills with similar provisions that the died in the Legislature between 2006 and 2007); California Research Bureau, Sober Living Homes in California: Options for State and Local Regulation (October 2016) at 14-16 (listing over 20 bills affecting recovery residences introduced between 1998 and 2016 that the Legislature did not pass or the Governor vetoed). 102 Sen. Com. on Health Analysis of Sen. Bill 786 at 6, 8-9. 103 Recent federal court decisions rejecting challenges under federal and California laws to spacing requirements for recovery residences have not considered the important differences between state and federal laws. See, e.g., Yellowstone Women’s First Step House, Inc. v. City of Costa Mesa (C.D. Cal. Oct. 8. 2015) 2015 WL 13764131 at *7-8, affirmed in part and vacated in part, 2021 WL 4077001 (9th Cir. Sep. 8, 2021) (unpublished, nonprecedential decision). These differences include, for example, the affirmative duties that California’s Housing Element Law imposes on local governments and the broader rights and remedies for persons with disabilities under California’s fair housing laws. See, supra, at pp. 22-23.

30 E. OCCUPANCY LIMITS AND BUILDING , FIRE, OR OTHER HEALTH AND

SAFETY CODE REQUIREMENTS

S
ubject 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

R
equirements for operators and residents often take the form of specific services or management practices that the local jurisdiction feels are necessary for the successful operation of group homes. These requirements tend to deal with the internal affairs of the operations and frequently involve issues beyond those in typical land use regulations. For example, local jurisdictions do not typically regulate the number of daily visitors to a single-family home or other residential property.

When applied to group homes, these types of regulations raise concerns that a local government is imposing conditions on them that are contrary to its duties to support housing for persons with disabilities, prevent discrimination on the basis of disability or other protected characteristics, and provide reasonable accommodations.

104 See, e.g., Health & Saf. Code, § 13113 (requiring sprinkler systems in certain licensed residential facilities).

31 Before adopting or applying any such regulations even for licensed group homes, local governments should analyze whether they are consistent with state housing laws and document this analysis. Local governments should also consider whether such regulations are consistent with the Health and Safety Code’s provisions and regulations for licensed facilities.

Although this Group Home TA cannot address all potential issues regarding potential regulations of operators and residents, the following are examples of requirements taken from recent local ordinances:

Imposing Special Parking Requirements on Group Homes. Requiring group homes to have or construct additional off-street parking spaces can impose considerable costs that constrain housing opportunities for persons with disabilities. These special parking requirements will often conflict with the right to privacy under the California Constitution,105 as well as local governments’ obligations to affirmatively support housing for persons with disabilities and avoid discriminating against them. Jurisdictions imposing additional parking requirements assume that group homes serving adults will have more residents who drive and will therefore use more on-street parking than other households. But these assumptions should at the very least be tested by studying the actual causes and extent of on-street parking shortages in an area.106 Local governments should also consider less discriminatory alternatives, such as street- parking permit systems for all households or other generally applicable parking and vehicle regulations.

Restricting Recovery Residence Occupants to Persons Actively Participating in Recovery Programs. While most occupants of recovery residences participate in recovery programs, local governments should not impose this as a condition of living in a recovery residence. There are different models of recovery, not all of which involve participating in 12-step or similar programs. And recovering from alcoholism or drug addiction is legally recognized as a protected disability regardless of whether someone has participated or is currently participating in a recovery or treatment program.107

105 Adamson, supra, 27 Cal.3d at 133 (concluding that parking concerns are best addressed by limitations that “appl[y] evenly to all households” and concluding that zoning ordinances are suspect when they focus on users instead of uses). 106 See, e.g., Lauber, supra, n. 16 at 385 & n. 52 (citing studies finding that group homes do not generate undue amounts of parking or traffic). 107 Hernandez v. Hughes Missile System Co. (9th Cir. 2004) 362 F.3d 564, 568; HUD – DOJ 2016 Jt. Stmt. on Local Land Use Laws at 7-8.

32 Restricting Occupancy Exclusively to Persons with Disabilities. Regulations restricting group home occupancy exclusively to persons with disabilities or with a specific disability may sometimes intrude on individuals’ fair housing choices and privacy rights. They also risk discriminating on the basis of other protected statuses.

Inflexible occupancy restrictions, for example, could preclude group homes designed for families in which one member has a disability or recovery residences designed for parents in recovery who are seeking to reunite with their children.

Restricting Occupants or Staff from Homes Based on Their Criminal History Records. Policies that prohibit individuals from living in or working at group homes based on individuals’ criminal history records may be intended to protect the occupants of these homes. But local governments contemplating adopting or applying such policies should carefully review California Code of Regulations, title 2, sections 11017.1; 12162, subdivision (b); and 12264-12271, which set parameters on using criminal history information that, among other things, restrict access to employment or housing.

Local governments should also consider state laws and regulations that apply to criminal background checks for licensed facilities’ employees.108 R
equiring Recovery Residences or AOD Facilities to Immediately Remove Occupants Who Violate Policies Prohibiting Alcohol or Drug Use. Although Health and Safety Code section 11834.26, subdivision (d), requires AOD facilities to plan how to address a resident’s relapse, that subdivision clarifies that this “does not require a licensee to discharge a resident.” This recognizes that approaches to addressing someone’s relapse may vary depending on a recovery residence’s or AOD facility’s program, the circumstances of the relapse, and an individual’s personal history and needs. Local policies should allow the same flexibility. Moreover, requirements to immediately remove relapsing residents with tenancy rights may conflict with landlord- tenant laws.

Other Examples
• House Manager Requirements—requiring group homes to have a house manager on site around the clock or always available to come to the residence within 30 or 45 minutes.
• Visitor Restrictions—requiring group homes to limit who can visit and under what conditions.

108 See, e.g., Health & Saf. Code §§ 1522, 1569.17, 11834.27; Cal. Code Regs., tit. 9, §§ 10564, 10615, 10624, tit. 22, §§ 80019-19.2.

33 • Records Maintenance—requiring group homes to maintain specific records about the internal affairs or occupants of the house.
• Codes of Conduct—requiring group homes to have special conduct codes for their residents.
• Neighborhood Notice Requirements—imposing special neighborhood notice requirements on group homes.
• Law Enforcement Registration Requirements—requiring group homes to register with the local sheriff’s office or other law enforcement offices.

Regulations like these can be based on mistaken or prejudicial fears about group homes, instead of actual data and evidence. Particularly in light of research finding that fears about group homes endangering neighbors’ health and safety are unfounded, 109 such provisions may in themselves be regarded as evidence that a local government is not complying with its requirements to affirmatively support housing for persons with disabilities and prevent discrimination against group homeowners, operators, and residents.

Regulations like these can also create unnecessary constraints on group homes by imposing overbroad, additional costs and burdens on the many group homes that capably serve their occupants’ needs and seamlessly integrate into their communities.

They can intrude on privacy rights. They can discriminate on the basis of disability or other protected characteristics if, for example, requirements like these are imposed on group homes but not on other housing. For these reasons, among others, regulations like these generally conflict with state housing laws.

G. Civil Actions for Operating Without a Required State License

S
ome categories of group homes, such as all those serving children, require state licenses. But many, if not most, group homes do not require state licenses to operate.

These include, for example, group homes that provide peer support and limited services to residents but not the more extensive care and supervision that requires obtaining a license. Recovery residences that do not provide alcoholism or drug addiction recovery or treatment services are other examples of group homes that do not require licenses.

Examples of group homes that do require licenses include the ones in this table:

109 See, supra, nn. 15-16.

34 Use Health and Safety Code
Sections
Licensing Agency
Community Care
Residential Facilities
(including various
subcategories)
§ 1500 et seq. &
§ 1569 et seq., e.g.,
California Department of
Social Services (CDSS)
AOD Facilities § 11834.01 et seq. California Department of Health Care Services
(DHCS)

S
ome 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
B
ut jurisdictions considering adopting this practice should still carefully assess the issues and problems that can arise under state law. Guidelines for local governments considering this include the following:
• Avoid targeting these nuisance actions on group homes operating without required licenses while ignoring other businesses operating in residences without required licenses. Although public prosecutors have broad discretion to prioritize which violations or violators to prosecute, they cannot use this discretion in ways that discriminate on the basis of disability or other protected characteristics. Jurisdictions should not single out group homes unlawfully operating without required licenses while ignoring businesses doing the same thing in other residences.

110 City of Dana Point v. New Method Wellness, Inc. (2019) 39 Cal.App.5th 985.

35 • Give group homes the same opportunities to respond to and resolve alleged code violations as other alleged violators. For example, if other property owners or businesses are allowed to respond to and resolve alleged code violations during investigations or administrative hearings, those same procedures should apply to group homes that are allegedly providing services that require a license without having obtained one.
• Use the processes available through DHCS and CDSS, for example, for resolving allegations that a group home is operating without a required license. If a locality has evidence that a residence is providing unlicensed recovery or treatment services in facilities under DHCS’s jurisdiction or unlicensed care or supervision for residents in facilities under CDSS’s jurisdiction, it should use these departments’ processes for investigating such complaints and abating them if they have merit.111 This is especially important when group home operators have not openly admitted that they are providing unlicensed services on-site.

Determining what activities at a group home rise to the level of licensable services, in contrast to common policies or mutual support activities that do not require licenses, can involve nuanced and technical issues that are beyond the expertise of most local planning or code enforcement staff. DHCS’s and CDSS’s staff have the expertise and experience to investigate these claims, make these determinations, and abate violations of the licensing laws they enforce.

If jurisdictions are filing their own, more costly civil actions to resolve disputes over whether a group home requires a license, this runs the risk of courts issuing mistaken rulings without the benefit of DHCS’s or CDSS’s findings and expertise.112 It also raises questions under state housing laws about why a local government is not availing itself of DHCS’s or CDSS’s procedures and opting instead to subject a group home to more expensive and burdensome civil litigation.

111 See, e.g., Cal. Code Regs., tit. 9, § 10542, tit. 22, § 80006. 112 Cf. Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 390 (explaining that under primary jurisdiction doctrine, courts may suspend proceedings to allow an administrative agency with specialized expertise to determine an issue within the scope of its regulatory authority).

36 H. ENFORCING GENERALLY APPLICABLE MUNICIPAL CODES AND OTHER LAWS

If gr
oup home operators are engaging in activities that constitute public nuisances; violating generally applicable building, housing, or other health and safety laws; committing fraud; or engaging in other illegal activities, local governments can address these issues through the same code enforcement and other legal processes they apply to others who violate municipal codes and other laws. This may still require considering if reasonable accommodations are appropriate in some circumstances. And local governments should avoid overbroad or discriminatory applications of nuisance laws, such as basing nuisance actions on 911 calls for emergency services. 113 But if a group
home is found to have violated local or state law, local governments may seek equitable relief that could include more stringent oversight and other affirmative relief to prevent further violations.

Focusing on individual group homes that are actually causing problems is a better practice than adopting overly broad and constraining regulations for all group homes that conflict with state housing laws.

8. RESOURCE MATERIALS AND STATE CONTACTS

Resource Materials

Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements (April 2021 Update), available at
https://www.hcd.ca.gov/community-development/affh/docs/affh_document_final_4- 27-2021.pdf
Housing Accountability Act Technical Assistance Advisory, HCD (Sep. 15, 2020), available at https://www.hcd.ca.gov/community-development/housing- element/housing-element-memos/docs/hcd-memo-on-haa-final-sept2020.pdf Housing Element Building Blocks, HCD, available at
https://www.hcd.ca.gov/planning-and-community-development/housing- elements/building-blocks

113 See. e.g., Cal. Code Regs., tit. 2, § 12162, subd. (a); United States Department of Housing and Urban Development, Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances (Sep. 13, 2016), available at
https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF.

37 Housing Element Building Blocks – Constraints for People with Disabilities, HCD, available at https://www.hcd.ca.gov/planning-and-community-development/housing- elements/building-blocks/constraints-people-disabilities Housing Element Building Blocks – Persons with Disabilities, HCD, available at https://www.hcd.ca.gov/planning-and-community-development/housing- elements/building-blocks/people-disabilities-including-developmental-disabilities Housing Element Building Blocks – Zoning for a Variety of Housing Types, HCD, available at https://www.hcd.ca.gov/planning-and-community-development/housing- elements/building-blocks/zoning-variety-of-housing-types Joint Statement of the Department of Housing and Urban Development and the Department of Justice – State and Local Land Use Laws and Practices and the Application of the Fair Housing Act, HUD - DOJ (Nov. 10, 2016), available at https://www.justice.gov/opa/file/912366/download
Senate Bill 2—Legislation Effective January 1, 2008: Local Planning and Approval for Emergency Shelters and Transitional and Supportive Housing, HCD (Apr. 10, 2013 update), available at https://www.hcd.ca.gov/community- development/housing-element/housing-element-memos/docs/sb-2-combined- update-mc-a11y.pdf
Transitional and Supportive Housing, Chapter 183, Statutes of 2013 (SB 745), HCD (Apr. 24, 2014), available at https://www.hcd.ca.gov/community- development/housing-element/housing-element-
memos/docs/sb745memo042414.pdf

C
ontacts
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: [email protected].

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 [email protected], 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.
22-56181

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE OHIO HOUSE, LLC,
Plaintiff-Appellant,
v.

CITY OF COSTA MESA,
Defendant-Appellee.

On Appeal from the United States District Court
for the Central District of California
Case No. 8:19-cv-01710-JVS-GJS
Hon. James V. Selna, District Judge

BRIEF OF AMICI CURIAE THE CALIFORNIA CIVIL

RIGHTS DEPARTMENT AND THE CALIFORNIA

DEPARTMENT OF HOUSING AND COMMUNITY

DEVELOPMENT IN SUPPORT OF APPELLANT AND

REVERSAL

ROB BONTA
Attorney General of California
MICHAEL L. NEWMAN
DANIEL A. OLIVAS
Senior Assistant Attorneys General
JAMES F. ZAHRADKA II

CHRISTINA BULL ARNDT
Supervising Deputy Attorneys
General
LISA C. EHRLICH (SBN 270842)
KENNETH J. SUGARMAN
Deputy Attorneys General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 510-3489
Email: [email protected]
Attorneys for California Civil Rights
Department and California Department
of Housing and Community
Development
Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 1 of 39

TABLE OF CONTENTS

Page

i
INTRODUCTION AND INTERESTS OF AMICI ...................................... 1 ARGUMENT ................................................................................................. 3 I. California Law Prohibits Housing Discrimination
Against People with Disabilities ............................................... 4 A. FEHA and Its Implementing Regulations Prohibit
Land Use Practices that Discriminate Against
People with Disabilities .................................................. 5 B. California’s Constitutional Privacy Right Protects
Group Home Residents ................................................. 12 II. The Judgment Below Should Be Reversed Because Costa Mesa’s Ordinances Violate California Law ............................ 13 A. Costa Mesa Failed to Make the Showings
Necessary to Sustain Its Facially Discriminatory
Ordinances Under FEHA .............................................. 14 B. Costa Mesa Failed to Demonstrate Compliance
with FEHA Reasonable Accommodation
Requirements ................................................................ 21 III. Restrictive Zoning Codes Like Costa Mesa’s Are
Contrary to Public Policy and Have a Negative Impact on Housing for Californians with Disabilities ............................. 25 CONCLUSION ............................................................................................ 29 Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 2 of 39

TABLE OF AUTHORITIES
Page
ii
CASES
Auburn Woods I Homeowners Ass’n v. Fair Emp’t & Hous.

Comm’n
121 Cal. App. 4th 1578 (2004) ...................................................................7 Broadmoor San Clemente Homeowners Ass’n v. Nelson
25 Cal. App. 4th 1 (1994) .................................................................. 13, 15 Brown v. Smith
55 Cal. App. 4th 767 (1997) .. ....................................................................7 City of Santa Barbara v. Adamson
27 Cal. 3d 123 (1980) .................................................................. 12, 17, 24 City of Santa Barbara v. Adamson
90 Cal. App. 3d 606 (1979) ..................................................................... 17 Coal. Advocating Legal Hous. Options v. City of Santa Monica 88 Cal. App. 4th 451 (2001) .................................................................... 12 Martinez v. City of Clovis
90 Cal. App. 5th 193 (2023) .................................................... 7, 11, 12, 16 Oconomowoc Residential Programs, Inc. v. City of Milwaukee 300 F.3d 775 (7th Cir. 2002) ............................................................. 15, 25 Pac. Shores Props., LLC v. City of Newport Beach
730 F.3d 1142 (9th Cir. 2013) ....................................................................6 Pack v. Fort Washington II
689 F. Supp. 2d 1237 (E.D. Cal. 2009) ................................................... 20 Page v. Super. Ct.
31 Cal. App. 4th 1206 (1995) .....................................................................7 Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 3 of 39

TABLE OF AUTHORITIES
(continued)
Page

iii
Socal Recovery, LLC v. City of Costa Mesa
56 F.4th 802 (9th Cir. 2023) ................................................................ 6, 28 Sada v. Robert F. Kennedy Med. Ctr.
56 Cal. App. 4th 138 (1997) … ................................................................ 6 Walker v. City of Lakewood
272 F.3d 1114 (9th Cir. 2001) ....................................................................6 Yamaha Corp. of Am. v. State Bd. of Equalization
19 Cal. 4th 1 (1998) ....................................................................................7

STATUTES AND REGULATIONS
United States Code, Title 42
§ 3601 .........................................................................................................6 § 3631 .........................................................................................................6 California Government Code
§ 8899.50 ....................................................................................... 1, 18, 24 § 8899.50(a)(1) .................................................................................. 10, 11 § 12161 .......................................................................................................8 § 12161(a) ...................................................................................................8 § 12161(b) ...................................................................................................8 § 12162 .......................................................................................................8 § 12900 .................................................................................................. 1, 5 § 12920 .......................................................................................................1 § 12921 .......................................................................................................1 § 12921(b) ...................................................................................................5 § 12926(j) ....................................................................................................6 § 12927(c)(1) ................................................................................... 5, 9, 23 § 12930(e) ...................................................................................................1 § 12930(j) ....................................................................................................1 § 12935(a) ...................................................................................................7 § 12955 .......................................................................................................5 § 12955(l) ....................................................................................... 5, 10, 12 Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 4 of 39

TABLE OF AUTHORITIES
(continued)
Page
iv
§ 12955(m) ..................................................................................................6 § 12999 .................................................................................................. 1, 5 § 65000 .................................................................................................... 10 § 65008 .......................................................................................................1 § 65580 .......................................................................................................1 § 65582(f) ................................................................................................ 10 § 65583 .................................................................................................... 10 § 65583(a)(5) ......................................................................... 11, 16, 18, 24 § 65583(a)(7) ............................................................................... 11, 16, 18 § 65583(b)(1) ..................................................................................... 11, 18 § 65583(c)(3) ............................................................................... 11, 18, 24 § 65583(c)(5) ..................................................................................... 18, 24 § 65583(c)(10)(A) .............................................................................. 18, 24 § 65583(c)(10)(A)(ii) ......................................................................... 11, 18 § 65583(c)(10)(A)(iv) .................................................................. 11, 16, 18 § 65585(a) ...................................................................................................2 § 65585(e) ...................................................................................................2 § 65585(j) ....................................................................................................2 § 65589.11 ..................................................................................................1 § 66499.58 ............................................................................................... 10 California Health and Safety Code
§ 50152 .......................................................................................................2 § 50456 .......................................................................................................2 § 50459 .......................................................................................................2 § 50464 .......................................................................................................2 Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 5 of 39

TABLE OF AUTHORITIES
(continued)
Page
v
California Code of Regulations, title 2
§ 12005 .................................................................................. 1 § 12005(bb) ........................................................................ 7, 8 § 12040(c) ............................................................................ 14 § 12042(f)(1)(A) ........................................................ 9, 14, 19 § 12042(f)(1)(B) .................................................................... 9 § 12042(f)(2) .............................................................. 9, 14, 20 § 12176(c) .............................................................................. 9 § 12177 ................................................................................ 21 § 12177(a) ...................................................................... 10, 21 § 12177(c) ...................................................................... 10, 21 § 12179(b)(1) ....................................................................... 22 § 12179(e) ........................................................................ 9, 22 § 12179(f) ........................................................................ 9, 22 § 12180(c)(6) ....................................................................... 23 § 12271 .................................................................................. 1

CONSTITUTIONAL PROVISIONS
California Constitution Article I, § 1 ............................................................ 12

COURT RULES
Federal Rules of Appellate Procedure
Rule 29(a)(2) ...............................................................................................3 Rule 29(a)(4)(E) ..........................................................................................3

OTHER AUTHORITIES
Cal. Dep’t of Hous. and Cmty. Dev., Group Home Technical Advisory (2022),
https://www.hcd.ca.gov/sites/default/files/docs/planning- and-community/group-home-technical-advisory-2022.pdf ............. passim City Approved Sober Living/Group Homes, Costa Mesa,
https://tinyurl.com/yukycasy ................................................................... 28 Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 6 of 39

TABLE OF AUTHORITIES
(continued)
Page
vi
Fusion Ctr., Data Brief: 2020 and 2021 Increases in Deaths in California, Cal. Dep’t of Pub. Health (July 1, 2022),
https://tinyurl.com/4bbcb5d4 ................................................................... 28 Group Homes/Sober Living Information and Application, Costa Mesa, https://tinyurl.com/4wjhb6ky ........................................................ 29 Korcha et al., Sober Living Houses: Research in Northern and Southern California, Addiction Science & Clinical Practice (2015), https://tinyurl.com/rh8prtbw ....................................................... 26 Mericle et al., Identifying the Availability of Recovery Housing in the U.S.: The NSTARR Project, Drug and Alcohol
Dependence 230 (2022), https://tinyurl.com/y48mpfze .......................... 28 Polcin et al., Sober Living Houses for Alcohol and Drug Dependence: 18-Month Outcomes, J. of Substance Abuse
Treatment (2010), https://tinyurl.com/2ba5ccbw .................................... 17 Polcin et al., What Did We Learn from Our Study on Sober Living Houses and Where Do We Go from Here? J. of
Psychoactive Drugs (Dec. 2010),
https://tinyurl.com/yzcxmb3r .................................................................. 26 Substance Abuse and Mental Health Servs. Admin., Recovery Housing: Best Practices and Suggested Guidelines (2018), https://tinyurl.com/mr4c4arz ................................................................... 26 U.S. Dep’t of Health & Human Servs., Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health (2016), https://tinyurl.com/ssnem8v3 ................................... 25 Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 7 of 39 1 I

NTRODUCTION AND INTERESTS OF AMICI
Californians have the right to obtain and hold housing of their choice without discrimination based on disability. Cal. Gov’t Code §§ 12920- 12921.1 In fact, California law requires local governments to take affirmative actions to further opportunities for people with disabilities to live where they choose, in housing that meets their particular needs. These rights and requirements are enumerated in several state laws, including the California Fair Employment and Housing Act (FEHA, id. §§ 12900-12999) and its implementing regulations; the Housing Element Law (id. §§ 65580- 65589.11); the Land Use Anti-Discrimination Law (id. § 65008); and the Affirmatively Furthering Fair Housing Law (id. § 8899.50).

The California Civil Rights Department (CRD, formerly known as the Department of Fair Employment and Housing) is the state agency charged with enforcing California’s civil rights laws, including the fair housing protections in FEHA. In exercising this authority, CRD has promulgated comprehensive regulations implementing FEHA, see, e.g., Cal. Code Regs. tit. 2, §§ 12005-12271, and has investigated and prosecuted civil actions under FEHA in state and federal court, see Gov’t Code § 12930(e)-(j). CRD 1 All statutory citations are to the California Codes unless otherwise indicated.

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2 thus has a strong interest in the proper application of FEHA standards in housing discrimination cases in California.

The California Department of Housing and Community Development (HCD) is the state agency responsible for enforcing housing laws in California, and has “primary responsibility for development and implementation of housing policy.” Health & Safety Code § 50152; see also Gov’t Code § 65585(j). HCD’s responsibilities also include advising cities on state housing law and policy, developing guidelines on “housing elements” and other housing law issues, and reviewing each local government’s housing element for substantial compliance with the Housing Element Law. Health & Safety Code §§ 50456, 50459, 50464; Gov’t Code § 65585(a)-(e). One of HCD’s recent initiatives to carry this mandate out is its Group Home Technical Advisory, which was issued in 2022 in response to legal concerns around some local governments’ adoption of new zoning regulations for group homes—housing shared by people with disabilities that provides support for the residents’ disability-related needs—and explained Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 9 of 39 3 how
these regulations can conflict with state law.2 HCD thus has a strong interest in the proper application of state housing laws and their interaction with FEHA, including in the area of group homes.3
As discussed further below, it appears to amici that the district court failed to properly apply the broad protections California law affords people with disabilities with respect to housing. Amici therefore respectfully submit this brief to aid this Court’s consideration of the important state law issues this case presents.

ARGUMENT
California law protects people with disabilities from housing discrimination, and requires cities to take affirmative actions in their land- use rules to advance the ability of people with disabilities to live in neighborhoods of their choice and in residential settings that address their 2 This document is available on the Department’s website at https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/ group-home-technical-advisory-2022.pdf.
3 No party’s counsel authored this brief in whole or in part; no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief; and no person other than the amici curiae contributed money that was intended to fund preparing or submitting this brief. See Fed.

R. App. P. 29(a)(4)(E). Amici have filed a motion for leave along with th is
br
ief, as the City of Costa Mesa refused to consent to the filing. See Fed. R.

A
pp. P. 29(a)(2).

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4 pa
rticular disability-related needs. As one aspect of that statutory and regulatory scheme, FEHA requires courts to carefully scrutinize local land use laws, like Costa Mesa’s, that facially discriminate against group homes for people with disabilities. Such laws are permissible only if they objectively benefit people with disabilities and are the least restrictive means of achieving the municipality’s policy objectives. The judgment below should be reversed because Costa Mesa failed to make such a showing, and also failed to satisfy FEHA’s reasonable-accommodation requirements.

Ordinances like Costa Mesa’s not only violate fundamental principles of state housing and antidiscrimination law; they are also contrary to California’s critical public policy goals and do real harm to people with disabilities.
4 I. CALIFORNIA LAW PROHIBITS HOUSING DISCRIMINATION

AGAINST PEOPLE WITH DISABILITIES
F
EHA and its regulations expressly prohibit housing discrimination a
gainst protected classes of individuals, including people with disabilities.

FEHA’s protection includes its incorporation of other state housing laws as a 4 As Appellant’s opening brief explains, it appears that federal law may require reversal as well. But amici will address only certain state law issues in this brief.

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5 potential basis for liability. In addition, the California Constitution provides a privacy right that extends to group housing.

A. FEHA and Its Implementing Regulations Prohibit Land
Use Practices that Discriminate Against People with
Disabilities
FEHA provides comprehensive protection against housing and employment discrimination in California. Gov’t Code §§ 12900-12999. It establishes as a “civil right” the “opportunity to seek, obtain, and hold housing without discrimination” on the basis of a number of enumerated protected characteristics. Id. § 12921(b). FEHA prohibits specific unlawful housing practices, including discrimination or harassment generally, retaliation, otherwise making unavailable or denying a dwelling based on discrimination, and discriminating through public or private land use practices. Id. § 12955; see id. § 12955(l) (“Discrimination includes, but is not limited to, restrictive covenants, zoning laws, denials of use permits, and other actions authorized under the Planning and Zoning Law . . . that make housing opportunities unavailable.”). FEHA defines “discrimination” to include the “refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” Id. § 12927(c)(1).

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6 FEHA prohibits discrimination based on, among other characteristics, disability, and “includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.” Gov’t Code § 12955(m).

Individuals recovering from addiction are recognized as people with disabilities, see id. § 12926(j), and “sober living homes and other dwellings intended for occupancy by persons recovering from alcoholism and drug addiction are protected from illegal discrimination against the disabled.” Socal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 814 (9th Cir. 2023).

FEHA and its federal law counterpart, the Fair Housing Act (FHA), 42 U.S.C. §§ 3601-3631, are related but offer distinct sets of protections.

California courts applying FEHA “‘often follow decisions construing federal antidiscrimination statutes, as long as those decisions provide appropriate guidance.’” Walker v. City of Lakewood, 272 F.3d 1114, 1126 (9th Cir. 2001) (quoting Sada v. Robert F. Kennedy Med. Ctr., 56 Cal. App. 4th 138, 150 n.6 (1997)). Thus, in some instances, this Court “‘appl[ies] the same standards to FHA and FEHA claims.’” Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1156 n.14 (9th Cir. 2013) (quoting Walker, 272 F.2d at 1131 n.8). But FEHA has force independent of the FHA, and in Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 13 of 39

7 certain situations it “may provide greater protection against discrimination”—that is, “the FHA provides a minimum level of protection that FEHA may exceed.” Auburn Woods I Homeowners Ass’n v. Fair Emp’t & Hous. Comm’n, 121 Cal. App. 4th 1578, 1591 (2004) (quoting Brown v.

Smith, 55 Cal. App. 4th 767, 780 (1997)); see also, e.g., Page v. Super. Ct., 31 Cal. App. 4th 1206, 1215-16 (1995) (declining to follow federal decisions that would limit supervisor’s personal liability under California antidiscrimination statute); Martinez v. City of Clovis, 90 Cal. App. 5th 193, 254-73 (2023) (analyzing FEHA claim separately from FHA claim), petition for review pending, No. S280039 (Cal.).

Pursuant to its legislative authority, see Gov’t Code § 12935(a), CRD has promulgated regulations implementing FEHA. These “quasi-legislative” regulations, which “have the dignity of statutes” under principles of California administrative law, Yamaha Corp. of Am. v. State Bd. of Equalization, 19 Cal. 4th 1, 10-11 (1998), are relevant to this case in at least three respects.

First, the FEHA regulations incorporate acts under other state housing laws into the definition of “[p]ublic land use practices” that can be challenged as discriminatory under FEHA. Cal. Code Regs. tit. 2, § 12005(bb). The regulations define “[p]ublic land use practices” to include Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 14 of 39

8 “all practices by governmental entities . . . in connection with development and land use that are related to or have an effect on existing or proposed dwellings or housing opportunities.” Id.5 The FEHA regulations specifically prohibit discriminatory treatment and discriminatory effects in such land use practices. Id. §§ 12161-12162. The regulations’ definition of “land use practices” thus covers a broad range of potential public action, and prohibits such actions that make housing opportunities unavailable for people with disabilities and impose different requirements on a protected class, if the practice intentionally discriminates against or has a discriminatory effect on members of the protected class. Id. §§ 12005(bb), 12161(a)-(b).

Second, when a public entity’s land use policy is facially discriminatory—as is the case with Costa Mesa’s ordinances here, see infra at 14—the entity must make two specific showings to avoid liability. It must establish that the policy both “[o]bjectively benefits a protected class” and

5 These practices include, among other things, adoption of ordinances, permitting and zoning decisions, actions under the Housing Element Law (part of the California Planning and Zoning Law and the State Housing Law, both cited in the regulation), and “[a]ll practices that could affect the availability, feasibility, use, or enjoyment of housing opportunities.” Cal.

Code Regs., tit. 2, § 12005(bb).

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9 “[i]s the least restrictive means of achieving the identified purpose.” Cal.

Code Regs. tit. 2, § 12042(f)(1)(A), (f)(2).6
Third, the FEHA regulations also implement the statute’s reasonable accommodation requirement. See Gov’t Code § 12927(c)(1). As applicable to zoning and permitting cases, a public entity must “make reasonable accommodations unless providing the requested accommodation would constitute an undue financial and administrative burden or a fundamental alteration of its program.” Cal. Code Regs. tit. 2, § 12176(c); see Gov’t Code § 12927(c)(1) (discrimination can include failure to make reasonable accommodations).
7 Moreover, the regulations require that whenever a public entity cannot immediately grant a reasonable accommodation request, it must undertake a good-faith interactive process “to exchange information to

6 In addition, or as an alternative, to demonstrating an “objective benefit,” an entity may also show the policy “[r]esponds to legitimate safety concerns raised by the individuals affected by the facially discriminatory policy, rather than being based on stereotypes about them.” Cal. Code Regs. tit. 2, § 12042(f)(1)(B). Here, the district court found the City had not offered any such concerns at trial to justify its regulations. ER 10. 7 A proposed accommodation constitutes a “fundamental alteration” only if it would “change the essential nature of the services or operations of the person being asked to provide the accommodation or modification,” and cannot be denied based on “fears or prejudices” about the disability, or because it “might possibly become an undue burden if extended to multiple other individuals who might request accommodations or modifications.” Cal. Code Regs. tit. 2, § 12179(e)-(f).

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10 ide
ntify, evaluate, and implement a reasonable accommodation or modification that allows the individual with a disability equal opportunity.” Cal. Code Regs. tit. 2, § 12177(a). This includes affirmatively “identify[ing] if there is another accommodation or modification that is equally effective.” Id. § 12177(c).

In addition to these regulatory provisions, FEHA’s prohibition of actions that “make housing opportunities unavailable” based on protected characteristics, Gov’t Code § 12955(l), is informed by state laws that require local jurisdictions to plan for and accommodate adequate housing opportunities for all individuals. A key aspect of the Planning and Zoning Law, Gov’t Code §§ 65000-66499.58, is the requirement that local governments prepare a housing element, see id. § 65582(f). In that document, cities must thoroughly analyze fair housing issues related to housing for people with disabilities and set forth a program of actions that protect and promote such housing, as well as meaningfully, quantifiably, and affirmatively further fair housing. Id. § 65583.8 Among other requirements, 8 ‘“Affirmatively furthering fair housing”’ is defined under California law to include “taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 17 of 39

11 the
housing element must “demonstrate local efforts to remove governmental constraints that hinder . . . meeting the need for housing for persons with disabilities,” id. § 65583(a)(5), and must “remove constraints to, and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities,” id. § 65583(c)(3). It must include a fair housing assessment with specific goals, implementation strategies, and “metrics and milestones” for evaluating results. Id. § 65583(c)(10)(A)(iv). Notably, to satisfy these obligations, cities are required to use and adduce data, analyses, and quantitative objectives. See, e.g., id. § 65583(a)(5), (a)(7), (b)(1), & (c)(10)(A)(ii). In other words, numerous provisions of state housing law address the adequacy of local policies in protecting and promoting housing opportunities for people with disabilities.

Recently, the California Court of Appeal held that local governmental actions that violate the Planning and Zoning Law (including the Housing Element Law) and make housing opportunities unavailable to members of a protected class also violate FEHA. Martinez, 90 Cal. App. 5th at 268-71.

The court concluded that the plaintiff had stated a FEHA claim by pleading protected characteristics.” Gov’t Code § 8899.50(a)(1) (internal quotation marks in original).

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12 that a local government’s failure to comply with the Housing Element Law “‘make[s] housing opportunities unavailable’ as that phrase is used in . . . section 12955, subdivision (l).” Id. at 269. Martinez thus underscores that one important aspect of FEHA’s housing-related protections stems from the statute’s interaction with other state housing laws.

B. California’s Constitutional Privacy Right Protects Group Home Residents
In addition to these state statutory and regulatory provisions, the California Constitution provides protections for people with disabilities living in communal, group home settings that courts must consider when examining local ordinances. This protection stems from Article I, Section 1 of the California Constitution, which declares an “inalienable right[]” to (among other things) “privacy.”
In City of Santa Barbara v. Adamson, 27 Cal. 3d 123 (1980), the California Supreme Court held that this constitutional privacy right prohibited a city ordinance that disallowed more than five persons unrelated by blood or marriage from living in a communal setting. Id. at 134. The court explained that the state Constitution protects a “right of privacy not only in one’s family but also in one’s home . . . [and] the right to live with whomever one wishes.” Id. at 130; see also Coal. Advocating Legal Hous.

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tions v. City of Santa Monica, 88 Cal. App. 4th 451, 458-61 (2001) (rejecting city’s limitations on who may live in an accessory dwelling unit because “the right to choose with whom to live is fundamental”).

This protection is relevant here because of the importance of communal living arrangements to people with disabilities. Group homes can provide peer support for disability-related needs, help people with disabilities live in deinstitutionalized settings, and integrate residents into their communities.

See Group Home Technical Advisory at 1, 6. As a result, the California Legislature has recognized that “‘persons with disabilities . . . are significantly more likely than other persons to live with unrelated persons in group [homes].’” Broadmoor San Clemente Homeowners Ass’n v. Nelson, 25 Cal. App. 4th 1, 6 (1994) (quoting 1992 Cal. Stat., ch. 1277, § 18, and 12 West Cal. Legis. Serv. 6038 (legislative finding and declaration in statute relating to fair housing)).

II. T

HE JUDGMENT BELOW SHOULD BE REVERSED BECAUSE COSTA
MESA’S ORDINANCES VIOLATE CALIFORNIA LAW
T
he district court failed to properly apply the state law principles just di
scussed, and there was no legally sufficient evidentiary basis for a reasonable jury to find for Costa Mesa, necessitating reversal.

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osta Mesa Failed to Make the Showings Necessary to
S
ustain Its Facially Discriminatory Ordinances Under
FEHA
Costa Mesa’s ordinances at issue here apply to “group homes,” which are defined as dwellings “being used as a supportive living environment for persons who are considered handicapped under state or federal law.” ER 251.

A
s the district court correctly recognized, see ER 252, this scheme is a “‘[f]acially discriminatory policy’” because it “explicitly conditions a housing opportunity on a protected basis, takes adverse action based on a protected basis, or directs adverse action to be taken based on a protected basis.” Cal. Code Regs. tit. 2, § 12040(c) (internal quotation marks in original). Thus, to avoid liability here, Costa Mesa bore the burden of establishing both that its law “[o]bjectively benefits a protected class,” id. § 12042(f)(1)(A), and that it “[i]s the least restrictive means of achieving the identified purpose,” id. § 12042(f)(2). Costa Mesa did not satisfy either prong of this analysis.
“Objectively benefits a protected class.” Costa Mesa’s
counterintuitive argument that its ordinances, which facially discriminate against group homes, in fact “objectively benefit” people with disabilities, ER 6-10, suffers from two key flaws.

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15 First, the gravamen of Costa Mesa’s successful “benefits” argument was that its policy purportedly advantages group homes by allowing them to avoid the restrictions the City places on “boarding houses”—i.e., a 1,000- foot spacing requirement, exclusion from a single-family residential zone, and “a six-person and six-room limit.” See, e.g., ER 6-10. But a comparison between group homes for people with disabilities and boarding houses is inapt. The communal living, peer support, and other assistance that group homes provide are essential housing resources for people with disabilities, who may not be able to live without them, unlike the non-disabled residents of boarding houses. Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 787 (7th Cir. 2002). Thus, group homes, unlike boarding houses, are protected by state and federal fair housing laws. See e.g., Broadmoor San Clemente Homeowners Ass’n, 25 Cal. App. 4th. at 6; Group Home Technical Advisory at 24.

The City has failed to carry its burden to justify its regulations in this case, because treating people with disabilities who require group homes slightly better than “boarding house” residents is irrelevant. See Oconomowoc, 300 F.3d at 787. Costa Mesa’s regulations placing burdens and restrictions on group homes do not result in a “benefit” to people with disabilities, who have needs addressed by group homes that people without Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 22 of 39

16 disabilities who live in boarding houses do not share. Nor has the City shown that it would actually be lawful to impose on group homes the restrictions it imposes on boarding houses, or that Ohio House and other group homes would not be entitled to reasonable accommodations from them. The “benefits” defense based on a comparison to boarding houses fails as a matter of law.

Costa Mesa’s restrictions on group homes also conflict with the City’s obligations under state law to affirmatively further fair housing for people with disabilities and account for their particular needs. Among other deficiencies, the City’s policy fails to account for the “special housing needs” of “persons with disabilities,” Gov’t Code § 65583(a)(7); fails to “remove governmental constraints” on housing for people with disabilities, id. § 65583(a)(5); and fails to give “highest priority” to factors that “limit or deny fair housing choice or access to opportunity” for people with disabilities, id. § 65583(c)(10)(A)(iv). These failures may well independently violate FEHA by virtue of making housing opportunities unavailable to people with disabilities. See Martinez, 90 Cal. App. 5th at 268-70; supra at 10-12. At a minimum, however, they should foreclose Costa Mesa’s argument that its facially discriminatory ordinances somehow objectively benefit people with disabilities.

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17 The City seeks to distinguish Ohio House from other shared housing that it treats like single-family homes because not all of its occupants are joint owners or tenants. ER 5606, 5918. But in Adamson, the Court held that the California Constitution’s protection of privacy rights still applies when a property owner or primary tenant (like Ohio House) is renting out rooms for others to live in a communal setting. See Adamson, 27 Cal. 3d at 127-28, 136 & n.5; City of Santa Barbara v. Adamson, 90 Cal. App. 3d 606, 153 Cal.

Rptr. 507, 509 (1979) (confirming that Adamson was renting space in her house to the other occupants). In addition, group homes like Ohio House, in which the occupants are not joint owners or tenants, are well-established and important communal housing resources for people with disabilities.9 It is incongruous to suggest that restrictions contradicting state constitutional rights could provide a legally cognizable “benefit” to people who live in group homes.

Second, in addition to the legal inadequacy of the alleged benefits themselves, Costa Mesa failed to meet its burden to produce sufficient

9 See Group Home Technical Advisory at 24-25; Polcin et al., Sober Living Houses for Alcohol and Drug Dependence: 18-Month Outcomes, J. of Substance Abuse Treatment (2010); 38(4):356-365, at 2-4, https://tinyurl.com/2ba5ccbw.

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18 evidence of the imposed restrictions’ supposed benefit to people with disabilities. This failure is inconsistent with California’s housing laws, which require public agencies to take meaningful actions to affirmatively further fair housing and to make related assessments in their planning, supported by objective, quantifiable data. Gov’t Code §§ 8899.50, 65583(c)(10)(A). This includes an obligation to assess displacement risk, id. § 65583(c)(10)(A)(ii); analyze potential and actual governmental constraints on housing for people with disabilities and demonstrate efforts to remove constraints, id. § 65583(a)(5); perform a quantifiable analysis of housing needs for people with disabilities, id. § 65583(a)(7); state goals and quantified objectives relative to affirmatively furthering fair housing, id. § 65583(b)(1); address and work to remove constraints on housing for people with disabilities, id. § 65583(c)(3); and promote housing for people with disabilities, id. § 65583(c)(5).

Instead, the City’s “benefits” defense relied on subjective, speculative, and unsubstantiated opinions that people with disabilities could benefit from the City’s policy both allowing for the siting of group homes where they purportedly would not otherwise be allowed if they were regulated as “boarding houses,” and requiring 650-foot separation to prevent potential feelings of institutionalization for group home residents. See, e.g., ER 7-10.

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19 Related, the City failed to fully consider and support with sufficient evidence, for example, the extent to which its policy precludes group homes in areas or locations where they otherwise would be sited, or already have been sited, ignoring the creation of new constraints on housing for people with disabilities. And the City failed to fully consider and support with sufficient evidence whether more housing opportunities of their choice for the protected class would be in fact lost rather than gained as a result of the policy, including ignoring displacement risks. As a result, the district court lacked the requisite objective evidence, such as detailed quantitative data, studies, or assessments of what the needs of people with disabilities were or what the actual effects of the City’s group home policy would be. See generally ER 6-10; see also Cal. Code Regs. tit. 2, § 12042(f)(1)(A) (requiring defendants to show that a facially discriminatory housing policy “[o]bjectively benefits a protected class”). Indeed, what is known about the ordinances’ actual effects undermines the City’s claim, despite the lack of detailed quantitative studies. Those effects will include displacing dozens of people from their Ohio House homes and effectively imposing quotas on how many people recovering from addiction can live in each of the City’s various neighborhoods, and therefore in the City as a whole.

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east restrictive means.” Even if Costa Mesa had been able to show that its ordinances objectively benefit people with disabilities, it would also have had to establish that its policy “[i]s the least restrictive means of achieving the identified purpose.” Cal. Code Regs. tit. 2, § 12042(f)(2); Pack v. F
ort Washington II, 689 F. Supp. 2d 1237, 1243-44, 1248 (E.D. Cal. 2009) (granting summary adjudication on FEHA facial discrimination claim because rule was not the least restrictive means of achieving alleged purpose and noting possible alternative rule).

The City did not demonstrate with sufficient evidence that it was unable to achieve its central claimed purpose—avoiding the creation of institutionalized living in residentially zoned areas—by less restrictive means than it chose. Again, assuming for purposes of discussion that the City’s goal of limiting “institutionalization” was legitimate, the district court failed to scrutinize, for example, the City’s claimed need for at least 650 feet of space between group homes as the least restrictive means of achieving this purpose. See, e.g., ER 8-9 (lack of discussion of possible less restrictive alternatives the jury could have considered). This constitutes an independent ground for invalidating the City’s facially discriminatory ordinances.

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21 B. Costa Mesa Failed to Demonstrate Compliance with
FEHA Reasonable Accommodation Requirements
Apart from having enacted facially discriminatory ordinances, the record here shows that Costa Mesa violated FEHA by failing to make a reasonable accommodation for Ohio House, which requested that it be permitted to operate within 550 feet of another group home rather than the minimum 650 feet required by the City’s ordinance. This failure has two aspects. First, as specified in FEHA’s regulations, Costa Mesa was required to undertake a good-faith interactive process in response to Ohio House’s request for reasonable accommodation. Cal. Code Regs. tit. 2, § 12177. This includes evaluating and implementing a reasonable accommodation if possible, or affirmatively “identify[ing] if there is another accommodation or modification that is equally effective.” Id. § 12177(a), (c). It appears that the City did not make these interactive efforts and the district court did not consider these requirements when determining there was sufficient evidence to find the denial of a reasonable accommodation did not violate FEHA. See ER 2892-97; ER 16.

Second, as relevant here, a requested accommodation may only be denied if it would constitute an unacceptable “fundamental alteration,” meaning it would “change the essential nature of the services or operations” Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 28 of 39 22 be
ing offered. Cal. Code Regs. tit. 2, § 12179(b)(1), (e). And, a reasonable accommodation request cannot be denied based on “fears or prejudices” about the disability, or because it “might possibly become an undue burden if extended to multiple other individuals who might request accommodations or modifications.” Id. § 12179(f).
“Fundamental alteration.” The court found that the jury had sufficient evidence to determine that a waiver of the 650-foot separation requirement constituted a “fundamental alteration” of the City’s zoning code creating residential neighborhoods. This was based on City testimony that a “cluster of group homes increases the number of adults living in an area, which increase[s] parking and traffic, [and] leads to increased related complaints,” such that “[t]he City wanted to reduce these effects to prevent the ‘institutionalization’ of residential neighborhoods and the degradation of the residential nature.” ER 16.

Assuming only for purposes of argument that the City’s goal was legitimate, the court’s order did not discuss any sufficient evidence showing that a deviation from the 650-foot separation rule would lead to these negative results, let alone any sufficient evidence that the 100-foot departure from the rule that Ohio House requested would do so. Indeed, Ohio House had already been located 550 feet from another group home, and there was Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 29 of 39 23 no suf
ficient evidence discussed that this had created an institutionalized setting.

Moreover, the City’s concerns are a far cry from what are properly considered fundamental alterations. FEHA and its regulations specifically anticipate that cities will need to adjust their zoning codes to reasonably accommodate disability-related housing needs, Gov’t Code § 12927(c)(1); Cal. Code Regs tit. 2, § 12180(c)(6), undercutting the City’s argument that the claimed speculative effects of increased density alleged here could be considered fundamental alterations. Here, the allegations of increased parking needs, van traffic, and loading and unloading passengers,10 which could come from any home with several residents—such as a multi- generational family living together, a home that receives a large number of deliveries or visitors, or families with regular carpools—is unlikely to rise to the level of changing the “essential nature” of a residentially-zoned neighborhood. Because these effects can be caused by many different sources, they should be addressed by generally applicable parking regulations, traffic calming measures, or occupancy standards instead of 10 The district court acknowledged that Ohio House did not receive any specific noise, parking, or smoking complaints in the past. ER 16.

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24 singling out group homes with discriminatory and constraining regulations.

See, e.g., Adamson, 27 Cal. 3d at 133; Group Home Technical Advisory at 30-31.

The City’s reaction to its claimed concerns also did not consider its obligations under state law to affirmatively furthering fair housing. These obligations include, among other things, protecting individuals with disabilities’ right to housing of their choice, and the housing they find most suitable for their disability-related needs, while removing constraints on their ability to obtain this housing. See, e.g., Gov’t Code §§ 8899.50; 65583(a)(5), (c)(3), (c)(5), (c)(10)(A). The accommodation Ohio House has requested may be consistent with, and indeed required by, state housing law.

The district court’s failure to consider the requested accommodation in light of the City’s obligations under state law was error.
“Fears or prejudices.” To justify denying the accommodation, Costa Mesa argued that having a greater number of persons per household, like Ohio House does, strained the City’s infrastructure, and could create “institutionalization” of zoned residential neighborhoods. ER 16. But this argument, rather than justifying denying Ohio House’s accommodation request, appears to reflect a concern that other group homes might seek a similar accommodation in the future. It thus appears to rest on “fears or Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 31 of 39 25 pr
ejudices” that multiple group homes might seek reasonable accommodations to locate or remain in Costa Mesa, and that group home residents somehow cause uniquely problematic traffic, noise, or activity (as the City allows similar traffic, noise, and activity from other homes with several residents). That is precisely the kind of prejudicial reasoning FEHA rejects. Cf. Oconomowoc, 300 F.3d at 786 (noting that FHA rejects city actions based on “blanket stereotypes about disabled persons rather than particularized concerns about individual residents . . . the use of stereotypes and ignorance, and . . . [g]eneralized perceptions about disabilities and unfounded speculations about threats to safety . . . as grounds to justify exclusion”) (internal citations and quotation marks omitted).

III. R
ESTRICTIVE ZONING CODES LIKE COSTA MESA’S ARE

CONTRARY TO PUBLIC POLICY AND HAVE A NEGATIVE IMPACT

ON HOUSING FOR CALIFORNIANS WITH DISABILITIES
A
s discussed above, group homes are an essential resource for people with disabilities. Group homes that provide sober living environments play a key role in substance abuse recovery care.11 They are “alcohol and drug free living environments that offer peer support for recovery outside the context 11 U.S. Dep’t of Health & Human Servs., Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health (2016) at 4-4, https://tinyurl.com/ssnem8v3.

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26 of
treatment.”12 According to the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services, community support “is a critical aspect of achieving and maintaining recovery,” and thus, recovery residences “are uniquely qualified to assist individuals in all phases of recovery, especially those in early recovery, by furnishing social capital and recovery supports.” 13 Research
demonstrates that residents show improvement in a variety of areas, including drug and alcohol use, employment, psychiatric symptoms, and arrests.14 Group homes thus enable people with disabilities to live in the community while still receiving the needed support for continued recovery.

As discussed above, California law recognizes the important benefits group homes provide to people with disabilities by establishing certain protections for them—protections that ordinances like Costa Mesa’s fail to 12 Polcin et al., What Did We Learn from Our Study on Sober Living Houses and Where Do We Go from Here? J. of Psychoactive Drugs (Dec. 2010) 42(4):425-433, at 2, https://tinyurl.com/yzcxmb3r. 13 Substance Abuse and Mental Health Servs. Admin., Recovery Housing: Best Practices and Suggested Guidelines (2018) at 3, https://tinyurl.com/mr4c4arz.
14 Korcha et al., Sober Living Houses: Research in Northern and Southern California, Addiction Science & Clinical Practice (2015) 10 (Suppl. 1):A30, https://tinyurl.com/rh8prtbw.

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27 r
ecognize. In addition to the problems inherent in the City’s overall permitting requirements, the Group Home Technical Advisory explains how Costa Mesa’s other, more specific group home regulations conflict with its duties to avoid discriminating against such housing and to affirmatively promote and protect it. These regulations include, for example, the City’s 650-foot spacing requirement, definition of single housekeeping units, and special occupancy standards for group homes.
15 Discriminatory restrictions
like these and others in Costa Mesa’s ordinances “can block new group homes from opening, force existing ones to close, and impose costs, legal fees, and administrative burdens that make it difficult for group homes to operate.”16
These problems are not hypothetical. Restrictive zoning codes have had—and continue to have—a negative impact on the availability of this important type of housing opportunity for people with disabilities.17 As an initial matter, recent research demonstrates that group homes for those recovering from addiction are not highly concentrated in Orange County, 15 See generally Group Home Technical Advisory at 23-36. 16 Id. at 1.
17 Group Home Technical Advisory at 7.

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28 r
elative to the rest of California or the nation as a whole.18 In fact, California is behind many other states in the number of such group homes per capita, despite having a higher age-adjusted alcohol/drug mortality rate than many other states.19 Moreover, the last two years have seen a large percentage increase in the number of such deaths in California, indicating a likely increasing need for group homes in the State at a time when there are fewer homes per capita than many other states.20
Restrictive zoning codes can limit this number even further, as is evident from Costa Mesa’s own data. Before Costa Mesa adopted its group home ordinances, it estimated there were 94 sober living homes in the City’s residential zones. Socal Recovery, LLC, 56 F.4th at 806.21 As of 2022, the City counted only 16 group homes, with at least 68 having closed. Id. at 806 18 Mericle et al., Identifying the Availability of Recovery Housing in the U.S.: The NSTARR Project, Drug and Alcohol Dependence 230 (2022), at 6-8, figs. 1, 2, tbl. 1, https://tinyurl.com/y48mpfze. 19 Id. at tbl. 1.
20 Fusion Ctr., Data Brief: 2020 and 2021 Increases in Deaths in California, Cal. Dep’t of Pub. Health (July 1, 2022), at 8, 9, tbl. 2, https://tinyurl.com/4bbcb5d4.
21 The SoCal Recovery decision cites data from the city website: City Approved Sober Living/Group Homes, https://tinyurl.com/yukycasy. That decision did not consider the validity of the City’s ordinances.

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29 &
nn.6-7. The City’s closure list now includes 83 closed facilities, indicating that an additional 15 facilities may have closed.22
The expert evidence in this case confirms this alarming reduction in available housing for people with disabilities. Professor Brian Connolly concluded that the City’s ordinances restricted the availability of group homes; some were even forced to close, displacing people with disabilities.

See Connolly Expert Rep. at 53 (Feb. 14, 2022), ECF No. 249-3. His report also discusses how the closure of such facilities, as with other areas of the housing market, presumptively increases the cost of housing in remaining group homes. Id. at 54.

In short, restrictive zoning codes, such as those at issue here in Costa Mesa, constrain housing opportunities and choice for people with disabilities. This expressly contravenes FEHA, the State’s housing and planning laws, the mission of CRD and HCD, and the policy of the State of California.

CONCLUSION
The judgment of the district court should be reversed.
22 Group Homes/Sober Living Information and Application, Costa Mesa, https://tinyurl.com/4wjhb6ky (providing information on “Operators that have closed”). The list can be found at https://tinyurl.com/2absudwh.

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30 Dated: June 29, 2023 Respectfully submitted,

ROB BONTA
Attorney General of California
MICHAEL L. NEWMAN
DANIEL A. OLIVAS
Senior Assistant Attorneys General
JAMES F. ZAHRADKA II

CHRISTINA BULL ARNDT
Supervising Deputy Attorneys General
KENNETH J. SUGARMAN
Deputy Attorney General
/s
/ Lisa C. Ehrlich
LISA C. EHRLICH
Deputy Attorney General
Attorneys for Civil Rights Department and
Department of Housing and Community
Development

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ED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
Fo
rm 8. Certificate of Compliance for Briefs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf 9t
h Cir. Case Number(s) 22-56181
I a
m the attorney or self-represented party.

This brief contains 5,897 words, including 0 words manually counted in any visual images, and e xcluding the items exempted by FRAP 32(f). The brief’s type size and typeface comply with FRAP 32(a)(5) and (6).

I certify that this brief (select only one):
[ ] complies with the word limit of Cir. R. 32-1.
[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1. [X] is an amicus brief and complies with the word limit of FRAP 29(a)(5), Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4. [ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select only one):
[ ] it is a joint brief submitted by separately represented parties. [ ] a party or parties are filing a single brief in response to multiple briefs. [ ] a party or parties are filing a single brief in response to a longer joint brief. [ ] complies with the length limit designated by court order dated _____________. [ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).

Signature /s/ Lisa C. Ehrlich Date June 29, 2023
(use “s/[typed name]” to sign electronically-filed documents) Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 38 of 39

CERTIFICATE OF SERVICE
I hereby certify that, on this 29th day of June 2023, I electronically filed the foregoing BRIEF OF AMICI CURIAE THE CALIFORNIA CIVIL

RIGHTS DEPARTMENT AND THE CALIFORNIA DEPARTMENT OF

HOUSING AND COMMUNITY DEVELOPMENT IN SUPPORT OF
APPELLANT AND REVERSAL with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the CM/ECF system. I further certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/
s/Lisa Ehrlich
Lisa Ehrlich
Case: 22-56181, 06/29/2023, ID: 12745956, DktEntry: 25-2, Page 39 of 39 STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov

November 29, 2023

Lori Ann Farrell Harrison, City Manager
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626

Dear Lori Ann Farrell Harrison:

RE: Group Home Ordinances – Letter of Technical Assistance

In the attached May 9, 2023, findings letter, the California Department of Housing and Community Development (HCD) offered to provide additional technical assistance regarding, among other things, implementation of Costa Mesa’s (City) 6th cycle housing element programs to review its group home and related policies. This letter provides that technical assistance for the City’s review of its group home ordinances, including Ordinance Nos. 14-13, 15-11, and 17-05, which amended Title 13 of the City’s Municipal Code (MC 13), as well as related City policies, such as its reasonable accommodations procedures.

HCD has reviewed the City’s group home ordinances and related policies under its authority pursuant to Government Code section 65585, which includes authority to review cities’ compliance with the Land Use Discrimination Law (Gov. Code, § 65008), Affirmatively Furthering Fair Housing (AFFH) Law (Gov. Code, §§ 8899.50, 65583), and State Housing Element Law (Gov. Code, § 65580 et seq.). HCD finds that the City’s group home ordinances and related policies violate Government Code sections 65008, 65583, and 8899.50 by failing to meet the City’s obligations to affirmatively further, protect, and remove constraints on housing for persons with disabilities, and also by discriminating against this housing.

To comply with state law, the City must, among other things, immediately stop enforcing its group home ordinances, repeal them, and revise its reasonable accommodations policies. These actions are also necessary to timely and effectively implement the programs in the 6th cycle housing element that the City adopted on November 15, 2022, which are required for the City’s housing element to substantially comply with State Housing Element Law. These include Program 2J (Transitional and Supportive Housing), 2N (Reasonable Accommodation), Program 2O (Definition of Single Housekeeping Unit), Program 2P (Group Homes), and 4A (Fair Housing).

Lori Ann Farrell Harrison, City Manager

Page 2 ends

Definitions

Various laws use the term “group homes” to refer to different types of housing for different populations. For the purposes of state fair housing and planning and zoning laws, the following terms refer to various types of residences in which unrelated persons share the residence:

• Shared Living Residences—any housing shared by unrelated persons, including, for example, group homes, recovery residences, some community care residential facilities, some supportive and transitional housing, emergency shelters, boardinghouses, and dormitories.
• Group Homes—housing shared by unrelated persons with disabilities that provide peer and other support for their residents’ disability-related needs and in which residents share cooking, dining, and living areas, and may, in some group homes, participate in cooking, housekeeping, and other communal living activities and that do not provide services that require licenses under state law. • Licensed Facilities—shared living residences that provide services that require licenses under state law.
• Recovery Residences or Sober Living Homes—group homes for persons recovering from alcoholism or drug addiction in which the residents mutually support each other's recovery and sobriety and that do not require state licenses because they do not provide alcoholism or drug addiction recovery and treatment services.1
• Alcohol or Other Drug (AOD) Facilities—residential facilities that must obtain state licenses because they provide alcoholism or drug addiction recovery and treatment services.

1 Individuals recovering from alcoholism or addiction are recognized as people with disabilities (see Gov. Code, § 12926, subd. (j)), and “sober living homes and other dwellings intended for occupancy by persons recovering from alcoholism and drug addiction are protected from illegal discrimination against the disabled.” SoCal Recovery, LLC v. City of Costa Mesa (“SoCal Recovery”) (9th Cir. 2023) 56 F.4th 802, 814.

Lori Ann Farrell Harrison, City Manager

Page 3 ends

Statutory Background

Land Use Discrimination Law

California’s Planning and Zoning Law (Gov. Code, § 65000 et seq.) prohibits jurisdictions from engaging in discriminatory land use and planning activities. Specifically, Government Code section 65008, subdivision (a)(1), deems any action taken by a city to be null and void if it denies an individual or group of individuals the enjoyment of residence, landownership, tenancy, or any other land use in the state due to illegal discrimination.

Section 65008 prohibits discrimination based on any characteristic, including disabilities, protected by other state or federal laws, while adding its own prohibitions of discrimination against individuals or households who have very low, low, moderate, or middle incomes. 2 The law further recites multiple categories of actions that are determined to be discriminatory, including enactment or administration of ordinances that prohibit or discriminate based on a protected characteristic
3 and imposition of requirements on a
residential use for persons with protected characteristics that are not generally imposed upon other residential uses.4

AFFH Law

Government Code section 8899.50 requires all California public agencies, including cities, “to administer their programs and activities relating to housing and community development in a manner to affirmatively further fair housing, and take no action that is materially inconsistent with [this] obligation . . . .”5 AFFH means:

taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.6

Moreover, the “duty to affirmatively further fair housing extends to all of a public agency’s activities and programs relating to housing and community development.” 7 2 Gov. Code, § 65008, subds. (a)(1)(A), (b)(1)(B)-(C), (2)(B), (3). 3 Id. at subd. (b)(1)(B).
4 Id. at subd. (d)(2)(A).
5 Gov. Code, § 8899.50, subds. (a)(2)(B), (b)(1), (2).
6 Id. at subd. (a)(1).
7 Id.

Lori Ann Farrell Harrison, City Manager

Page 4 ends

Housing Element Law

In addition to the general AFFH requirements in Government Code section 8899.50, State Housing Element Law includes more specific AFFH requirements for cities.

Government Code section 65583 requires cities to thoroughly analyze fair housing issues related to housing for people with disabilities and set forth a program of actions that protect and promote such housing. Through their housing elements, cities must “remove governmental constraints that hinder . . . meeting the need for housing for persons with disabilities,” which requires “remov[ing] constraints to, and provid[ing] reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities.” 8 Section 65583 also requires
cities to “promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities all persons regardless of . . . disability” or “other protected characteristics.”
9 And cities’ housing elements must
include a fair housing assessment with specific goals, implementation strategies, and “metrics and milestones” for evaluating results.10 In complying with these AFFH duties, cities are required to analyze data and set measurable objectives and milestones.11

Resource Materials

In revising its policies, amending its ordinances, and implementing its housing element programs, the City should consider HCD’s Group Home Technical Advisory (Group Home TA)
12 and its AFFH Guidance Memorandum (AFFH Memo).13 The City should also consider, among other things, the analysis in the amicus brief that HCD and CRD filed in the pending appeal in The Ohio House, LLC v. City of Costa Mesa, 9th Cir. Case No. 22-56181, Docket No. 25-2 (Amicus Brief). The guidance documents and Amicus Brief discuss relevant statutes, regulations, and case law, as well as HCD’s and other government agencies’ earlier guidance documents, academic papers, and demographic and statistical analyses.

8 Gov. Code, § 65583, subds. (a)(6), (c)(3).
9 Id. at subd. (c)(5).
10 Id. at subd. (c)(10)(A)(iv).
11 See, e.g., Gov. Code, § 65583, subds. (a)(5), (a)(7), (b)(1), (c)(10)(A)(ii). 12 Available at https://www.hcd.ca.gov/sites/default/files/docs/planning-and- community/group-home-technical-advisory-2022.pdf.
13 Available at https://www.hcd.ca.gov/community-
development/affh/docs/affh_document_final_4-27-2021.pdf.

Lori Ann Farrell Harrison, City Manager

Page 5 ends

Findings

HCD’s findings include, but are not necessarily limited to, those described below.

Permitting Requirements

Ordinance Nos. 14-13, 15-11, and 17-05 establish permitting requirements for group homes.

• MC 13-311(a) requires a special use permit for unpermitted group homes of six or fewer occupants located in R1 (single-family) zones and prohibits group homes with seven or more occupants in these zones.
• MC Title 9, Chapter II, Article 23, 9-372 requires group homes of six or less to apply for an operator's permit, regardless of licensure status. • MC 13-322 requires a Conditional Use Permit (CUP) for group homes of six or less in R2-MD, R2-HD and R3 residential zones and the PDR-LD, PDR-MD, PDR-HD, PDR-NCM, PDC, and PDI (Planned Development Zones) Zones. • MC 13-323 requires a CUP for group homes in the R2-MD, R2-HD and R3 residential zones and the PDR-LD, PDR-MD, PDR-HD, PDR-NCM, PDC, and PDI (Planned Development Zones) with seven or more occupants.

The City’s permitting requirements for group homes and its application and enforcement of these requirements violate Government Code sections 65008, 65583, and 8899.50 by, among other things, discriminating against housing for persons with disabilities, constraining and failing to promote this housing, and restricting the fair housing choices of persons with disabilities (their right to housing of their choice and the housing they find most suitable for their disability-related needs).

The ordinances do not impose similar restrictions on other dwellings located in the zones listed above. The discriminatory effects and constraints these permitting requirements impose on group homes are evident through, among other things, the City’s own data showing how severely the permitting requirements have curtailed group homes in Costa Mesa. And there are considerable other discriminatory effects, including, and among other things, the costs and burdens imposed on group homes, the displacement of persons with disabilities from housing of their choice and the disruptions of their lives, and the City’s efforts to deter new group homes from opening in Costa Mesa.
14 14 See, e.g., Amicus Brief at pp. 27-28; SoCal Recovery, supra, 56 F.4th at p. 806 (finding that Costa Mesa engaged in “an explicit effort to reduce the number of sober living homes operating within the City.”).

Lori Ann Farrell Harrison, City Manager

Page 6 ends

Furthermore, the City should not continue attempting to justify its group home restrictions by comparing them to its treatment of boardinghouses. Group homes are designed to provide communal living environments with peer and other support for their occupants’ disability-related needs and to help integrate their residents into local communities. Boardinghouses do not serve these same goals. Government Code sections 65008, 65882, and 8899.50 also impose specific and unique duties on cities to affirmatively promote and protect housing for persons with disabilities that do not similarly apply to all boardinghouses.

The overall problems with the City’s permitting system require the City to immediately stop enforcing its group home ordinances and repeal them. To provide additional guidance, this letter discusses below further examples of how specific provisions in these ordinances conflict with the City’s duties under Government Code sections 65008, 65583, and 8899.50.

Definition of Single Housekeeping Unit

MC 13-06 defines a single housekeeping unit as follows:

• Single housekeeping unit. The occupants of a dwelling unit have established ties and familiarity with each other, jointly use common areas, interact with each other, share meals, household activities, and expenses and responsibilities; membership in the single housekeeping unit is fairly stable as opposed to transient, members have some control over who becomes a member of the household, and the residential activities of the household are conducted on a nonprofit basis. There is a rebuttable presumption that integral facilities do not constitute single housekeeping units. Additional indicia that a household is not operating as a single housekeeping unit include, but are not limited to: the occupants do not share a lease agreement or ownership of the property; members of the household have separate, private entrances from other members; members of the household have locks on their bedroom doors; members of the household have separate food storage facilities, such as separate refrigerators.

HCD encourages the City to review pages 24-25 of the HCD Group Home Technical Advisory for policies to avoid when creating a definition of a single housekeeping unit.

These problematic policies include requiring all residents to share a common lease or deed, excluding for-profit group homes and overly scrutinizing living arrangements (e.g., not allowing for locks on rooms or having separate entrances).

Lori Ann Farrell Harrison, City Manager

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Lack of Grandfathering

Typically, when a zoning code changes, preexisting, nonconforming uses are “grandfathered” in and allowed to continue operating under the requirements that were in place before the amendments.
15 Costa Mesa’s zoning code follows this well-
established practice by allowing preexisting, nonconforming residential uses to continue operating unless they are abandoned, the dwellings they are in are declared physically unsafe, or the owner proposes structural alterations. (MC 13-203(b), 13-204.) But the City departs both from general grandfathering practices and its own grandfathering code provisions by requiring preexisting group homes to apply for permits in the same fashion as new ones to remain operational. (MC 13-311, 13-322, and 13-323.) This imposes discriminatory and constraining conditions on preexisting group homes, while creating displacement impacts that AFFH duties and State Housing Element Law require the City to consider and avoid.16 The City should apply its generally applicable grandfathering provisions to preexisting group homes, subject to reasonable accommodations requirements.

Occupancy Limits

The City sets special occupancy limits on group homes that prohibit group homes of seven or more occupants in R-1 single family zones, require group homes with seven or more occupants to obtain permits to operate in other zones, and require group homes with six or fewer occupants to obtain permits to operate in any residential zone. (MC 9- 372, 13-311)(a), 13-322, 13-323.) This is another example of the City imposing discriminatory and constraining restrictions on group homes. Concerns about overcrowding should be addressed through applying the generally applicable occupancy limits that apply to all residences instead of singling out specific types of housing based on occupants’ disabilities.
17 Costa Mesa’s ordinances appear to be based on a faulty application of Health and Safety Code statutes that allow local governments to subject licensed group homes with more than six residents to conditional use or other discretionary approval processes but require local governments to treat many types of licensed group homes with six or fewer residents the same as single-family homes and prohibit requiring these small, licensed group homes to obtain conditional use permits or other special approvals to locate in single-family zones.
18 The City, however, cannot justify its restrictions on group homes

15 See, e.g., Edmonds v. Los Angeles County (1953) 40 Cal.2d 642, 651 (“The rights of users of property as those rights existed at the time of the adoption of a zoning ordinance are well recognized and have always been protected.”). 16 Gov. Code, § 65583, subds. (c)(10)(A)(ii), (v).
17 See Uniform Housing Code, § 503.2; see also City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 133.
18 See, e.g., Health & Saf. Code, §§ 1566.3, 1569.85, 11834.23.

Lori Ann Farrell Harrison, City Manager

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through statutes designed to protect small licensed facilities, which provide higher levels of support and care that require state licenses.19 These statutes specifically apply to licensed facilities, not to unlicensed group homes. In effect, the City is inappropriately transforming state laws designed to prevent local constraints on small, licensed facilities into constraints on group homes that do not provide services requiring state licenses.

Moreover, the City is imposing more restrictions on group homes with six or fewer residents than state law allows it to impose on licensed facilities with similar numbers of residents. To avoid imposing overly costly and burdensome constraints on group homes, the best practice is to apply the same general building, fire, and other health and safety codes that apply to other residences, subject to state health and safety code provisions specific to certain types of licensed facilities and to reasonable accommodations requirements.20

Separation Requirement

MC 13-322, 13-323, and 13-324 require 650 feet of separation between group homes, sober living homes, or state-licensed drug and alcohol treatment facilities, new and existing.

These spacing requirements have a particularly severe impact on group homes, severely limiting where they can locate, causing group homes to close, and preventing others from opening. Yet the City has not shown that these spacing requirements are necessary or that there are health, safety, or similar justifications for the spacing requirements, or that if these were actual issues, that the City could not address them through less restrictive and discriminatory policies.

Pages 27-29 of the Group Home TA provides additional guidance illustrating why the City’s spacing requirements conflict with its duties under state housing law (e.g., Gov.

Code, §§ 8899.50, 65008, 65583, subds. (c), (1), (5), (10)), as does the Amicus Brief.

Vehicle and Parking Requirements

The City imposes special vehicle and parking requirements on group homes. MC 13- 311(a)(5) states that each dwelling resident is limited to one vehicle that must be used as the resident’s primary form of transportation. MC 13-311(a)(5) requires each dwelling resident to park their vehicle on dwelling premises or within 500 feet of the dwelling.

Concerns about parking and traffic should be addressed through generally applicable rules instead of restrictions that target housing for persons with disabilities. 21 19 See Group Home TA at pp. 25-26.
20 See, e.g., Health & Saf. Code, § 13113 (requiring sprinkler systems in certain licensed facilities).
21 See Adamson, supra, 27 Cal.3d at 133; Group Home TA at p 31.

Lori Ann Farrell Harrison, City Manager

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Examples of Other Permitting and Operational Requirements

The City imposes the following restrictions on group homes but not on other residences:

• MC 13-311(a)(4) requires a manager to be present during all hours, seven days a week.
• MC 13-311(a)(14)(vi) requires that the operator must have a good neighbor policy directing residents “to be considerate of neighbors, including refraining from engaging in excessively loud, profane or obnoxious behavior that would unduly interfere with a neighbor’s use and enjoyment of their dwelling unit.” • MC 13-311(b) requires group homes applying for a permit to provide notice to the owner of record and all occupants within 500 feet of the group home.

Singling out group homes for restrictions like these can burden group homes with additional, unjustified costs, while perpetuating fears and stereotypes about persons with disabilities. Pages 30-33 of the Group Home TA provide additional guidance on how to avoid these and other restrictions in Costa Mesa’s group home ordinances that conflict with the City’s duties under Government Code sections 8899.50, 65008, 65583, subds. (c)(1), (c)(5) and (10), among others.
22 Reasonable Accommodations

Failing to make reasonable accommodations to rules or policies, in order to allow persons with disabilities the opportunity to access housing, is a form of discrimination.23 Making reasonable accommodations is also necessary to fulfill the City’s AFFH duties and its duties to remove constraints on housing for persons with disabilities.24

The City should review its reasonable accommodation policies in Municipal Code section 13-200.62, along with its application of these policies, to ensure compliance with state law.25 For example, the City: (i) must avoid denying requested accommodations based on fears or prejudicial assumptions about people with disabilities, such as that group home residents somehow uniquely cause problematic traffic, noise, or activity; (ii)

22 See also Oconomowoc Residential Programs, Inc. v. City of Milwaukee (7th Cir. 2002) 300 F.3d 775, 783 (finding that house manager requirement is discriminatory because it effectively mandates an “institutional” arrangement that is not “on par with” housing policies for those who are not disabled); Potomac Group Home Corp. v.

Montgomery County, Md. (D. Md. 1993) 823 F.Supp. 1285, 1296 (finding that notice requirements discriminate against and stigmatize persons with disabilities). 23 See, e.g., Gov. Code, § 12927, subd. (c)(1).
24 See, e.g., Gov. Code, §§ 8899.50, 65583, subds. (a)(6), (c)(3), (5). 25 See, e.g., Cal. Code Regs., tit. 2, §§ 12176-12185; Group Home TA at pp. 18-20; Amicus Brief at pp. 21-25.

Lori Ann Farrell Harrison, City Manager

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may not place the burden on reasonable accommodation applicants to demonstrate that their requested accommodations would not create undue burdens on the City or fundamental alterations to its zoning code; (iii) may not require applicants to show that they could not find any other housing within the city that would meet their disability- related needs; and (iv) must engage in good faith with reasonable accommodation requests and avoid delay or burdensome procedural requirements.26

Costa Mesa May Still Address Problems that Might Arise at Individual Group Homes

The City has resources to legally address problems that might occur at individual group homes. If group home operators are engaging in activities that constitute public nuisances; violating generally applicable building, housing, or other health and safety laws; committing fraud; or engaging in other illegal activities, the City can address these issues through the same code enforcement and other legal processes it applies to others who violate municipal codes and other laws. If the City has evidence that a group home operator is providing services that require a license without obtaining one, it can contact the state’s Department of Social Services or Department of Health Care Services, which can initiate investigations and take remedial action if appropriate. 27 This may still require considering if reasonable accommodations are appropriate in some circumstances. And the City should avoid overbroad or discriminatory applications of nuisance laws, such as those basing civil nuisance actions on 911 calls for emergency services.
28 But if a group home is found to have violated local or state law, the City may, for example, seek equitable relief that could include more stringent oversight and other affirmative relief to prevent further violations.

Focusing on individual group homes that are actually causing problems is a better practice than adopting overly broad, constraining, and unlawful regulations for all group homes.

26 See, e.g., Cal. Code Regs., tit. 2, §§ 12177-12179; 28. C.F.R. § 35.150(a)(3). 27 See Group Home TA at pp. 33-36, 37.
28 See. e.g., Cal. Code Regs., tit. 2, § 12162, subd. (a); see also California Attorney General Rob Bonta letter to all Cities and Counties in California re Crime Free Hosing Policies (Apr. 21, 2023), available at https://oag.ca.gov/system/files/attachments/press- docs/Crime%20Free%20Housing%20Guidance_4.21.23.pdf.

Lori Ann Farrell Harrison, City Manager

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Conclusion

Costa Mesa’s ordinances are blocking new group homes from opening, forcing existing ones to close, and imposing costs, administrative burdens, and fees that make it difficult for group homes to operate, while displacing persons with disabilities and disrupting their lives. The City is creating these restrictions and problems in the context of a shortage of adequate housing for persons with disabilities, which is a particularly acute issue within California’s broader housing crisis.

HCD has reviewed the City’s group home ordinances and found that they violate Government Code sections 65008, 65583, and 8899.50. The City must stop enforcing these ordinances, repeal them, change its reasonable accommodation policies and practices, and review other zoning practices in light of HCD’s guidance to ensure that the City is complying with state law. These actions are necessary for the City to comply with its duties under Government Code sections 65008, 65583, and 8899.50, and are among the things that the City must do to bring its 6th cycle housing element into substantial compliance with State Housing Element Law.

For technical assistance regarding the City’s 6th Cycle housing element, please contact Jose Armando Jauregui at [email protected]
. If you have any questions
regarding the content of this letter, please contact Bentley Regehr at [email protected].

Sincerely,

David Zisser
Assistant Deputy Director
Local Government Relations and Accountability

Enclosures: Letter from HCD regarding City of Costa Mesa’s 6 th Cycle (2021-2029)
Adopted Housing Element (May 9, 2023)

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov

Ma
y 9, 2023

Lor
i Ann Farrell Harrison, City Manager
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Dear Lori Ann Farrell Harrison:

RE: City of Costa Mesa’s 6th Cycle (2021-2029) Adopted Housing Element Thank you for submitting the City of Costa Mesa’s (City) housing element that was adopted on November 15, 2022 and received for review on March 10, 2023. In addition, the California Department of Housing and Community Development (HCD) considered technical modifications from its prior review authorized by Resolution Number 2022-67.

Pursuant to Government Code section 65585, subdivision (h), HCD is reporting the results of its review. In addition, HCD considered comments from Costa Mesa First pursuant to Government Code section 65588, subdivision (c).

The adopted housing element meets the statutory requirements of State Housing Element Law (Gov. Code, § 65580 et seq.). However, the housing element cannot be found in substantial compliance until the City has completed necessary rezones to make prior identified sites available and address the shortfall of sites to accommodate the RHNA pursuant to Assembly Bill 1398 (Chapter 358, Statutes of 2021) as described below.

Pur
suant to Assembly Bill 1398 (Chapter 358, Statutes of 2021), a jurisdiction that failed to adopt a compliant housing element within one year from the statutory deadline cannot be found in compliance until rezones to make prior identified sites available or accommodate a shortfall of sites, pursuant to Government Code section 65583, subdivision (c) (1) (A) and Government Code section 65583.2, subdivision (c), are completed. As this year has passed and Programs 3B (Fairview Development Center), 3C (North Costa Mesa Specific Plan), 3D (Urban plans and Overlays), and 3N (Reused sites) have not been completed, the housing element is out of compliance and will remain out of compliance until the rezoning has been completed. Once the City completes the rezone, a copy of the resolution or ordinance should be transmitted to HCD. HCD will review the documentation and issue correspondence identifying the updated status of the City’s housing element compliance.

Lori Ann Farrell Harrison, City Manager

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Additionally, the City must continue timely and effective implementation of all programs including but not limited to the following:

•
Program 2A (Inclusionary Housing Ordinance)
• Program 2B (Affordable Housing Development)
• Program 2I (State Density Bonus Incentives)
• Program 2J (Transitional and Supportive Housing)
• Program 2M (Parking Standards for Residential Development) • Program 2N (Reasonable Accommodation)
• Program 2O (Definition of Single Housekeeping Unit)
• Program 2P (Group Homes): Please note, HCD may follow up with additional technical assistance. Please see HCD’s Group Home Technical Advisory at https://www.hcd.ca.gov/sites/default/files/docs/planning-an d-community/group- home-technical-advisory-2022.pdf.
• Program 3B (Fairview Development Center)
• Program 3G (City-wide Vote Requirements)
• Program 3R (Development of Large Sites)
• Program 4A (Fair Housing)
The C ity must monitor and report on the results of these and other programs through the annual progress report, required pursuant to Government Code section 65400.

Please be aware, Government Code section 65585, subdivision (i), grants HCD authority to review any action or failure to act by a local government that it determines is inconsistent with an adopted housing element or State Housing Element Law. This includes failure to implement program actions included in the housing element. HCD may revoke housing element compliance if the local government’s actions do not comply with state law.

S
everal federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant, the Strategic Growth Council and HCD’s Affordable Housing and Sustainable Communities programs, and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City will meet housing element requirements for these and other funding sources.

For your information, some general plan element updates are triggered by housing element adoption. HCD reminds the City to consider timing provisions and welcomes the opportunity to provide assistance. For information, please see the Technical Advisories issued by the Governor’s Office of Planning and Research at:
https://www.opr.ca.gov/planning/general-plan/guidelines.html.

Lori Ann Farrell Harrison, City Manager

Page 3 ends

HCD appreciates the dedication and cooperation of the City’s housing element team provided during the review and update. HCD particularly applauds the efforts of Jennifer Le and Scott Drapkin whose collaboration, communication, expertise and public service is truly commendable. HCD wishes the City success in implementing its housing element and looks forward to following its progress through the General Plan annual progress reports pursuant to Government Code section 65400. If you have any questions or need additional technical assistance, please contact Jose Armando Jauregui of our staff, at [email protected].

S
incerely,
P
aul McDougall
Senior Program Manager

LEGAL ADVOCACY UNIT
888 W. 6th Street, Suite 700
Los Angeles, CA 90017

Tel: (916) 504-5800
Fax: (916) 504-5801
TTY: (800) 719-5798
Intake Line: (800) 776-5746
www.disabilityrightsca.org
March 17, 2026

VIA EMAIL

Mayor John Stevens and Costa Mesa City Council
c/o City Clerk
77 Fair Drive
Costa Mesa, CA 92626
[email protected]

RE: March 17, 2026 Public Agenda Item No. 4, Council File No. 26-174

To the Honorable Members of the Costa Mesa City Council:

As counsel in the Insight v. Costa Mesa case, we write regarding Item No. 4 on the March 17, 2026 City Council Public Hearing Agenda, Council File No. 26-174, which includes proposed amendments to the municipal code to “implement Housing Element programs to comply with state law.” However, the proposed amendments to the municipal code in Agenda Item No. 4 are not sufficient to bring the City’s ordinances into compliance with the law.

The City is obligated to bring its ordinances into compliance with the law not only pursuant to its Housing Element obligations but also as a result of commitments the City made in the Insight case. In the Insight settlement agreement, the City agreed to implement Program 2N of the Housing Element by June 30, 2026. Program 2N provides that the “City will review and adopt revisions to its Reasonable Accommodation process to be consistent with State and federal fair housing requirements.” The Insight agreement further provides that if the City fails to do so, Disability Rights California may enforce it through a writ petition or lawsuit.

March 17, 2026

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The Insight case involved over five years of litigation, during which the City had to pay not only its own lawyers but also $1.75 million in attorneys’ fees to the plaintiffs. Further litigation to try to keep the City’s reasonable accommodation processes out of compliance with the law would be an irresponsible use of the City’s time, money, and other resources. We urge the Council to instead direct City staff to work with us to further amend the City’s reasonable accommodation process to comply with the law, to cease discriminating against people with disabilities, and to fully implement Housing Element Programs 2O (regarding the definition of single housekeeping units) and 2P (regarding group homes).

I. Our efforts to communicate with the City

While the Insight settlement agreement provides that City staff are encouraged to share draft revisions to the reasonable accommodation process with us, to provide us with a period to comment on the draft revisions, and to discuss any comments with us prior to the submission of those revisions, we have scarcely heard from staff on these revisions. We only heard from the City Attorney that the City was considering eliminating finding (f)(7) in the reasonable accommodation ordinance (attached). We responded by letter to say that was a great start, but that there were a number of other problems causing the ordinance to fall short of legal requirements (also attached).

We never heard from the City Attorney again. At the Planning Commission’s February 9, 2026 review of recommendations pertaining to the Housing Element, we made a public comment urging the Commission to encourage City staff to reach out to us regarding staff recommendations regarding amendments to the City’s reasonable accommodation ordinance, and submitted a follow up letter at the February 23, 2026 Planning Commission meeting (attached), which included an item regarding the City’s Housing Element. Again, we received no response to that invitation.

II. Problems with the City’s Reasonable Accommodation
process

Even with the proposed amendments, the City’s reasonable accommodation process remains out of compliance with the law. For March 17, 2026

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example, Section 13-200.62 (f) is a list of findings “all of which are required for approval” of a reasonable accommodation request. But the list combines factors that the person or entity requesting the accommodation must establish in order to be entitled to an accommodation, i.e., the topics of Findings (1) and (2), with factors that are the City’s burden to establish if it is going to deny the accommodation, i.e., the topics of Findings (3), (5), and (8). These two types of topics instead need to be separated to clearly delineate who – the person or entity making the request, or the City – bears the burden of proof.

Undue burden, direct threat, and fundamental alteration can properly be in the reasonable accommodation ordinance, but the regulation needs to be structured in a way that makes clear that if the person or entity making the request establishes the factors addressed in Findings (1) and (2), the City must grant the accommodation unless it finds that granting the accommodation will impose an undue financial or administrative burden, will result in a direct threat, or will result in a fundamental alteration (i.e., the inverse of the current language regarding findings). It does not work to combine them in the same list as the elements that the person or entity making the request has the burden to establish. As written, the list creates confusion among requestors and City staff. The two types of findings must be bifurcated.

The ordinance also needs to be revised to adequately reflect the law governing the findings that the City must establish to deny an otherwise valid reasonable accommodation request. For example, a finding that March 17, 2026

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granting a reasonable accommodation would be an undue burden or fundamental alteration must also be made “after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion.” 28. C.F.R. §35.150(a)(3). The proposed amendment to Section 13-200.62(f)(3) says instead, “the financial resources of the City if it is obligated to pay for the modification,” which is not sufficient. The proposed amendment to (f)(3) also inexplicably references the “financial resources of the person or persons who have a duty to provide the accommodation,” even though the ordinance only addresses reasonable accommodation requests made to the City, not to third parties. It also improperly imports factors pertaining to possible alternative accommodations that do not bear on the undue burden analysis.

Section 13-200.62(f) also includes factors that do not fall within either the burden of the person or entity making the accommodation request or the allowable reasons for the City to deny a request, but instead layer on additional obligations that are not permitted under fair housing law. The proposed revision to Finding (4) would change it from a finding that the requested accommodation “is consistent with surrounding uses in scale and intensity of use” to “demonstrates scale and intensity of use comparable to adjacent and nearby uses.” The original language is a problem because City cannot apply different occupancy, use, or development standards to shared housing for people with disabilities as compared to other forms of housing, nor can it require a household of people with disabilities to be limited to fewer people than a single housekeeping unit would be allowed to have. To the extent that a requested accommodation would result in housing that was vastly different from permitted housing uses, City staff could evaluate whether granting the request would constitute a fundamental alteration to a City program or would result in an undue burden or direct threat. But simply having the same number of people that a single housekeeping unit would be allowed to have, or failing to meet another occupancy or development standard that was not also applied to single housekeeping units, could never fall within one of those permitted reasons for denying an accommodation request.

The proposed revision exacerbates the problem, because it requires the accommodation to match the use that happens to be “adjacent and nearby,” and not just what is in the overall surrounding area.

March 17, 2026

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Finding (6) still requires in some instances “a finding that the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants generally.” For the same reasons that the City is removing Finding (7), which also focuses on “facilities of a similar nature and operation” rather than on the specific housing that is at issue for a particular reasonable accommodation request, the City should remove Finding (6). It is just as true that it will be “operationally difficult for staff or the applicants to make this determination given lack of information” (as the City Attorney said in her email to us with respect to Finding (7)) for Finding (6) as for Finding (7). Moreover, providing a feasibility study or market study about other housing does not fall within the burden of someone making a reasonable accommodation request. Making such a study a condition of approving a disability-related accommodation is therefore a discriminatory housing practice. This should likewise not be listed as a required finding.

In order to bring the reasonable accommodation ordinance into compliance with federal and state fair housing law, the City will also need to revise other portions of the ordinance. For example, Section 13-200.62(b) loads burdensome and irrelevant requirements onto people or entities making reasonable accommodation requests. A lay homeowner who needs an accommodation due to disability should be able to comply with application requirements without having to hire an attorney or other expert to help them understand what they need to do. The City should limit the application to information that is necessary for the City to evaluate whether the person or entity making the request has met their burden, such as the location of the dwelling at issue, the existence of the disability, the nature of the accommodation that is being requested, and the connection between the March 17, 2026

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disability and the requested accommodation. The current provisions in Section 13-200.62(b) that require people or entities making reasonable accommodation requests to provide “[a]ny other information that the director reasonably determines is necessary for evaluating the request for reasonable accommodation” ((b)(3)) and “[a]ny other information that the hearing officer reasonably concludes is necessary to determine whether the findings required by subsection (e) of this section can be made” ((b)(7)) are particularly problematic because they are not limited to the information necessary to establish that a person or entity is entitled to a reasonable accommodation. The proposed revisions to (b)(7) appear to be an attempt to fix that section but instead ends up requiring an applicant to guess at what “other information" might be necessary, rather than clearly telling them what information to provide. Even worse, the proposed revisions to (b)(7) make it explicit that the City is putting the burden on the person making the reasonable accommodation request to demonstrate the findings in (e) and (f) regarding undue burden, fundamental alteration, and direct threat that are legally the City’s burden to establish.

Hearings regarding reasonable accommodations requests should not be made by legislative bodies, and no public notice should be made regarding reasonable accommodation reviews. We have already seen that public hearings create an opening for members of the public to express animus against people with disabilities, which imposes an improper barrier to people seeking such accommodations. For example, at the hearings March 17, 2026

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regarding Insight’s reasonable accommodation request, a member of the public told the Planning Commission that a person who is “mentally disabled does not belong in a neighborhood next door to me or any of us in this room,” and another member of the public testified to the City Council that the “mentally ill cannot associate with our children, neighbors.” Hearing those types of prejudicial comments was traumatic for our client Ms. Doe, who spoke about her own experiences with mental illness, and the ways that staying at Insight’s housing had helped her, at a hearing on Insight’s reasonable accommodation request. Not only is the City not obligated to provide the public with a forum to intimidate and humiliate people like Ms.

Doe, but the City cannot put people like her through such an ordeal as a condition of having their accommodation request reviewed. Nor can such animus play any part in the City’s review of an accommodation request. For similar reasons, the ordinance should also make clear that only the person or entity making the request can appeal a decision regarding a reasonable accommodation, in contrast to the current language which permits virtually anyone – including neighbors with an animus against people with disabilities – to appeal.

Sections 13-200.62(e) and (g), regarding “considerations,” overlap with the required “findings” in Section 13-200.62(f) in a way that impedes consistency with fair housing law. Like Section 13-200.62(f), these sections fail to make clear which elements are the burden of the person making the reasonable accommodation request to establish and which are the City’s burden. Many of them are also improper considerations. For example, the current ordinance permits consideration of “whether granting the request would be consistent with the City's General Plan.” But by definition, any reasonable accommodation request pertaining to zoning will be inconsistent with the zoning scheme. “Requiring public entities to make exceptions to their rules and zoning policies is exactly what the FHAA does.” Anderson v. City of Blue Ash, 798 F.3d 338, 363 (6th Cir. 2015); City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802, 806 (9th Cir. 1994) (FHA imposes an affirmative duty to reasonably accommodate disabled persons). The proposed revision modifies but does not fix the issue. The question is not whether a requested disability accommodation is inconsistent with the City’s General Plan or “the degree of deviation” from it, but whether granting it would fundamentally alter the General Plan.

March 17, 2026

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To take another example, the City cannot take into consideration whether “the accommodation would result in a substantial increase in traffic or insufficient parking” (§ 13-200.62(g)(2)) or “create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation” (§ 13-200.62(g)(4)) unless it is also doing so with respect to single housekeeping units. Again, the City cannot impose more stringent development or occupancy standards on housing occupied by people with disabilities than on single housekeeping units, nor can it use vague or undefined conditions as a basis for denial of a reasonable accommodation request. These are examples, and not an exhaustive list, of the issues with subsections (e) and (g) of Costa Mesa’s reasonable accommodation ordinance.

As we have expressed before, we would be happy to provide additional comments or to discuss any of the above with City staff in more detail.

Having a reasonable accommodation process that does not comply with the law serves no one and leads to unnecessary litigation and squandering of resources.

Moreover, the City has nothing to fear from compliance. A nondiscriminatory reasonable accommodation process will do nothing to prevent Costa Mesa from achieving its goal of creating “neighborhoods where we all belong.” In fact, it will help the City achieve that goal.

III. Problems with Implementation of Programs 2O and 2P

In addition to failing to implement Program 2N of the Housing Element regarding the City’s reasonable accommodation process, the proposed revisions do not solve the problems with the City’s definition of Single Housekeeping Unit (Program 2O) and with the City’s Group Home regulations (Program 2P).

The City’s definition of Single Housekeeping Unit, both in its current and proposed revised form, is an incredibly invasive intrusion into the privacy of Costa Mesa families and homes. The government should not be monitoring whether the members of a private household are eating dinner together, keeping joint bank accounts, or having regular conversations with one another, or keeping tabs on who has taken responsibility for keeping the living room or the kitchen clean and tidy. The depth of the privacy invasion March 17, 2026

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contemplated by the single housekeeping unit definition suggests that the City intends to reserve investigation and enforcement of the definition against disfavored classes of people, such as people with disabilities. The requirement that “residential activities” be conducted on a “not-for-profit” basis would also exclude people with a variety of disability-related needs, such as the need to pay someone to assist them with activities of daily living. The meal-sharing requirement discriminates against people who have religious or medical dietary needs that require separate meals and food preparation. And the entire definition discriminates against seniors and people with disabilities who need to rent out a room or rooms (whether as homeowner or tenant) in order to remain living independently in the community, or who cannot take on shared responsibilities, expenses, or activities due to a physical or mental impairment or to participation in disability-related public benefit programs that prohibit or penalize such sharing.

The proposed revision to the definition of “group home” effectively requires shared housing for people with disabilities to have “an operator.” But it is both illegal discrimination and an insult to people with disabilities to assume that disabled people cannot live together in the community without someone “governing the behavior of the residents as residents,” setting rules for them, or otherwise supervising them. Rather than fixing the problems with the group home regulations, which already limit in a discriminatory way where people with a disability-related need to share housing can live, the proposed revision to the group home definition exacerbates the problem.

The current group home regulations also provide for a discriminatory review process. The proposed revision to the notice requirement in Section 13-311(b) does not eliminate its discriminatory nature. Calling the notice a “courtesy” written notice does nothing to lessen the problem that the notice allows neighbors to express discriminatory animus against people with disabilities as part of the group home special use permit process. And as City planner Anna McGill acknowledged at the February 9, 2026 Planning Commission hearing regarding this proposed language, no other ministerial permit process has such a notice requirement. The City is singling out group homes for people with disabilities for this treatment. It is discriminatory against people with disabilities to impose this notice requirement for group homes.

March 17, 2026

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IV. City is out of compliance with effective communication requirements

Finally, the City is out of compliance with its obligations under Title II of the Americans with Disabilities Act, Section 11135 of the Government Code, and related laws because its website is not accessible. For example, Attachment 7 to the Agenda for today’s meeting, which contains the redline of the proposed amendments to the City’s municipal code discussed in this letter and is found at
https://costamesa.legistar.com/View.ashx?M=F&ID=15313516&GUID=69B 543B5-6C97-4DBB-949C-60DBADFFEFDE, is not an accessible document and cannot be read by screen-reading technology. (Attachment 5 has the same problem.) The City is required to ensure that its web-based materials are accessible, and it is particularly egregious that the City neglected to do so on an item of particular interest to people with disabilities. We strongly urge the City to undertake a comprehensive review of its policies and procedures regarding the accessibility of its website to ensure that this is not an issue again.

We appreciate your time and attention to our comments. We hope that you will direct City staff to continue working on the implementation of Programs 2N, 2O, and 2P so that the City’s regulations do not discriminate against people with disabilities, and we urge you to encourage staff to reach out to us to discuss our concerns.

Sincerely,

Autumn M. Elliott
Law Office of Autumn Elliott

Jia Min Cheng
Managing Attorney
Disability Rights California

March 17, 2026

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Encl:

(1) December 19, 2025 email from Kim Barlow to DRC and Elliott re Costa Mesa Housing Element Program 2N

(2) January 12, 2026 letter from DRC and Elliott to City Attorney re proposed revisions to reasonable accommodation ordinance

(3) February 23, 2026 written comments from DRC and Elliott to Planning Commission regarding Costa Mesa Housing Element Program 2N

LEGAL ADVOCACY UNIT
1831 K Street
Sacramento, CA 95811
Tel: (916) 504-5800
Fax: (916) 504-5801
TTY: (800) 719-5798
Intake Line: (800) 776-5746
www.disabilityrightsca.org
January 12, 2026

VIA EMAIL

Kimberly Hall Barlow
Jones Mayer
3777 N. Harbor Blvd.

Fullerton, CA 92835
[email protected]

RE: Costa Mesa’s Proposed Revisions to RA Ordinance

Dear Ms. Barlow:

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Costa Mesa City CouncilMarch 17, 2026

Costa Mesa City Council
March 17, 2026