Recently a ‘Sober Living home’ opened in Oakley. The majority of sober living homes are privately owned and operated by an individual or small partnership. They offer an alcohol and drug free environment for post recovery addicts before returning to their former lives. The typical sober living home is a single-family residence situated in quiet neighborhoods close to shopping and public transportation. Each resident is required to be financially self-supporting, paying their own rent, and purchasing their own food. Each resident performs an assigned daily chore around the house. Rent in a sober living home ranges significantly. In this particular house each of the six residents pays $850.
At a recent City Council meeting questions were asked by nearby residents regarding the City’s ability to regulate a sober living home of six or fewer residents. The short answer is that, because of state law, the City must treat a sober living home just like any other single family residence, and may not impose any special land use regulations, fees or taxes upon its operation.
The following are excerpts from a letter sent by the City’s attorney to the council clarifying this issue.
There are several examples of state laws that preempt, or control, the ability of cities to regulate use of single family homes for special uses or occupants. Generally, these involve the care of six or fewer individuals. Such examples include:
- Child daycare facilities with six or fewer children;
- Assisted living for elderly persons with dementia;
- “Sober living homes”;
- Homes for the mentally disabled.
In each case, the State’s legislation is aimed at promoting a social goal deemed to be a matter of statewide concern. The state has therefore enacted laws that require cities to allow such uses of residential property without any special land use regulations or oversight by the local jurisdiction.
In Division 10.5 of the State Health and Safety Code, commencing at the Code’s Section 11834.20: The Legislature hereby declares that it is the policy of this state that each county and city shall permit and encourage the development of sufficient numbers and types of alcoholism or drug abuse recovery or treatment facilities as are commensurate with local need. A city may not deny a sober living home on the basis that the city believes it already has more than a sufficient number of such facilities, Ops Cal Atty Gen 07-601 (Dec. 18,2007).
Section 11834.23 continues: Whether or not unrelated persons are living together, an alcoholism or drug abuse recovery or treatment facility which serves six or fewer persons shall be considered a residential use of property for the purposes of this article. In addition, the residents and operators of such a facility shall be considered a family for the purposes of any law or zoning ordinance which relates to the residential use of property pursuant to this article.
For the purpose of all local ordinances, an alcoholism or drug abuse recovery or treatment facility which serves six or fewer persons shall not be included within the definition of a boarding house, rooming house, institution or home for the care of minors, the aged, or the mentally infirm, foster care home, guest home, rest home, sanitarium, mental hygiene home, or other similar term which implies that the alcoholism or drug abuse recovery or treatment home is a business run for profit or differs in any other way from a single-family residence.
It should also be pointed out that persons recovering from alcohol and drug addictions are considered to be disabled persons under the American with Disabilities Act. Zoning actions by cities are covered by the ADA, Bay Area Addiction Research & Treatment v. City of Antioch (1999) 179 F,3d 725, and thus Oakley could face liability not only under the state law discussed above, but also under the ADA if it were found to have violated rights guaranteed under that law.
- Oakley is prohibited by State law from requiring the operators of the home to obtain a conditional use permit or home occupation permit or any other land use permit.
- Oakley may not impose any different or special fee or tax upon the sober living home.
- Oakley must treat the sober living home in all respects as it treats any other single-family home.
- The sober living home is not exempt from the penal laws or code enforcement, just as any other home is not exempt. Thus disturbances of the peace by way of loud music or noises can be dealt with by the Police Department, and code enforcement issues, such as accumulations of trash, weeds, abandoned cars, etc. can be abated.