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Sober Living Homes: How do we balance recovery with residential living?

August 29, 2016

Recovering addicts, as disabled persons, have the right to seek a supporting living environment, free from discrimination. Residents have the right to quietly enjoy their homes. Recovering addicts often seek out sober living homes (SLHs) to reside with others battling with addiction while attempting to transition back into sobriety. Many are successful. Unfortunately, when attempting to make this transition, some SLH residents may find leaving their former lifestyle difficult. As a result of those finding it difficult, neighbors may experience excessive noise, parking, smoking and trash. In more drastic situations, residents might witness drug or alcohol relapses, overdoses and increased crime.

In California, we have the perfect mix for recovery: sun, surf and beautiful homes. This is also the perfect mix for home ownership and quiet enjoyment. So how do we balance the two?

An SLH is a commercial venture. The companies who run SLHs make quite a bit of money organizing and providing homes where people live while recovering from their addictions. Residents in community associations or Common Interest Developments (CIDs) are often precluded from commercial or non-residential activities by the CC&Rs. With bans on commercial activities, how are so many new SLHs operating in community associations?

A properly run SLH is treated no differently under the law than a large family living under one roof. If recovering addicts live communally, like a family, they cannot be discriminated against based solely on the fact that the residents are unrelated. Further, a CID cannot target an SLH simply because there may be 15 recovering addicts living in an 1800 square foot home. If 15 related people can legally live in that home (based upon local occupancy limits), 15 unrelated people can live there too.

SLHs have made quite a few headlines recently. One interesting story covered the Pacific Shores v. Newport Beach case where the City of Newport Beach attempted to address some of the issues that arise with SLHs. The City spent millions of dollars, ultimately lost the case and had to pay the SLH operator its attorney’s fees. The City was out-of-pocket over $10 million. The intent of their laws was believed to directly address some of the issues surrounding SLHs. While the codes may have been written to apply to everyone equally, comments recorded in the City’s public minutes demonstrated that the City adopted the laws to target SLHs. This type of targeting and discrimination is not allowed.

Why did the City of Newport Beach target SLHs? Probably because they saw the same issues that community associations see with SLHs. While SLHs are theoretically a great thing and a lofty goal, they often bring with them problems for a community. These problems include but aren’t limited to:

• Smoking / cigarette butts
• Noise from gatherings
• Overabundance of cars and parking issues
• Occupants wandering the community
• Visitors who might still be addicts
• Relapse and/or overdosing
• Building code and zoning violations
• Overuse of common facilities
• Neighborhoods exposed to “bad element”
• Lowering of property values
• Disclosure of nuisance during rental or sale of neighboring homes

How do we balance between our societal desire to help and protect the disabled with our desire to live peacefully and in quiet enjoyment? More importantly, what can or should a community association do before these issues arise or when faced with an SLH causing these issues?

We must remember that an SLH (a property that is not providing medical treatment and is functioning as communal living) is not a commercial or non-residential use and that a community association cannot discriminate against an SLH or the disabled residents living within. Community associations should set up rules and regulations in advance of facing these issues and then take steps to enforce those regulations when issues arise.

At their core, the issues raised above are nuisances. Nuisances can be created by tenants and owners alike. Because of the larger number of people staying in an SLH, the nuisance issues are often exacerbated. Because a community association cannot discriminate against an SLH, however, the rules created must apply to and attempt to address all nuisances equally.

The first step a community association should take is to create strong rules that address potential nuisances. For example, to address people gathering and smoking in the pool area, create a rule that prohibits smoking in common areas. This rule can and should be applied evenly to all residents and should work as a preventative measure before the community is faced with this activity.

Another rule to consider relates to access to common facilities. Remember that an SLH is considered a family for zoning purposes. Generally a family does not need 15 FOBs to access common areas. Again, however, the rules have to be applied evenly and in a non-discriminatory manner.

Community associations can also shore up their architectural rules as modifications are often made to residences to accommodate the high number of residents in an SLH. When updating these rules a community association must remember that it cannot discriminate against an SLH. Any rule adopted should be designed to apply and then be applied evenly against all residents. For example, a rule indicating that a garage cannot be converted or used as a dwelling is not discriminatory.

If a community association is already facing issues caused by an SLH, its first step should be to consult with legal counsel. There are far too many traps for a community association to go it alone. Balance must be made between enforcement of restrictions and providing reasonable accommodations for the disability. Accommodations must be reasonable and there must be a nexus between the request and the disability. The considerations are too numerous to list here but the issue should not be taken lightly.

Community associations should also consider that many of the issues created by an SLH also violate local ordinances. Construction projects may have been performed without permits. The local planning department can often help. Unreasonable noises or other nuisances might violate California laws or local municipal codes. The local police department might be able to help. Unkempt yards, exterior structures or swampy pools might violate local ordinances. Code enforcement can lend a helping hand.

One key to remember when calling a city to ask for help is to not complain “about an SLH.” Neither a city nor a community association can take action against an SLH merely because it is an SLH. Instead, the complaint to the city and the action of a community association should focus entirely on the activity.

If your community has not yet experienced an SLH it may be only a matter of time. Prepare your community beforehand by creating appropriate rules. Work with your legal counsel to address holes in your nuisance and architectural regulations before you are accused of a discriminatory intent. If your community is already facing issues created by an SLH, be aware of all of the pitfalls, tread carefully and see if your local city can help.

With well-reasoned rules and enforcement your community can try to maintain a healthy balance between the desire to help others and the desire to live in quiet enjoyment in our homes.

JRM Headshot 01

James R. McCormick, Jr., Esq., CCAL

 

James R. McCormick, Jr., Esq., CCAL, is a managing partner in the Law Firm of Peters & Freedman, L.L.P. James has been formally trained as a mediator and mediated disputes for the former San Diego Mediation Center, now known as the National Conflict Resolution Center.

James started in the industry in 1996, and since that time has served on various industry committees, has presented at numerous CAI events and has published many industry-related articles. James chaired the San Diego CAI Legislative Support Committee (LSC) of the California Legislative Action Committee (CLAC) for several years and currently serves on the CACM Legislative Affairs Committee, and the CAI Coachella Valley LSC committee. James also co-founded and serves on the CAI Coachella Valley PR Committee.

As a result of his work in the industry, James is one of less than 175 attorneys nationwide to be granted a fellowship in the College of Community Association Lawyers (CCAL).

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