Related Story: Task Force offers recommendations
By Jane Smith
The three largest cities in southern Palm Beach County are taking different paths to regulate sober homes, following the November release of a revised statement by two federal departments offering legal guidance for cities to use to draft regulations covering group homes.
Boca Raton is mulling what to do. Delray Beach is trying to create a path that will allow for some regulation without violating the rights of people in recovery.
Boynton Beach is taking a more aggressive approach.
The city is placing a six-month moratorium on all group home applications, which includes sober homes. The recovery residences cater to people who want to live together in sobriety. Treatment does not occur inside the houses.
Sober home operators apply for a “reasonable accommodation” from local regulations on the number of unrelated people who can live together for medical reasons. Most South County cities cap the number at three.
Planning Director Mike Rumpf said Boynton Beach is on solid legal ground with the staff-initiated moratorium to study the issue and determine how the city’s regulations will be changed.
The hold will last until June 4 for processing, approving or issuing of “any new certificates of use, business tax receipts, development orders or permits for group homes.”
The revised joint statement was created by the U.S. Departments of Justice and Housing and Urban Development, at the request of U.S. Rep. Lois Frankel. People living in recovery residences are protected by federal privacy and anti-discrimination laws.
Rumpf points to Page 15 of the statement, which allows local governments to deny a group home’s application if it violates a city’s “zoning scheme” or puts an undue burden on its finances and administration. How the city will interpret the statement’s sections on that page remains to be seen.
He also said the city might require a group home to have an administrator who is certified, similar to the one needed for the voluntary certification program run by the Florida Association of Recovery Residences. That person helps the home’s residents to be good neighbors in the community, according to FARR standards.
The city’s Planning and Development board unanimously passed the moratorium on Dec. 27. Board member Stephen Palermo asked if six months was enough time to study the issue. City Attorney James Cherof said yes.
The Boynton Beach City Commission voted 5-0 in support of the moratorium on Jan. 3.
Only Nancy Hogan, of Ocean Ridge, spoke. She owns property in the Snug Harbor condo development in Boynton Beach. She said she supported the moratorium to give the city time to review its ordinances.
The moratorium will return for another public hearing at the Jan. 17 commission meeting.
Moratorium option criticized
One constitutional law expert, James K. Green of West Palm Beach, criticized the moratorium.
“The most cost-effective way to provide services in the community to avoid the horrors of mass institutionalization is through a group home,” he said.
Moratoriums are allowed under state law as long as they don’t conflict with federal laws, he said.
Boynton Beach is trying to stop all group homes for disabled individuals — regardless of the type of disability — from applying to open for six months.
Green has experience litigating this issue. He was among the group of attorneys who successfully sued the cities of Boca Raton and Delray Beach in federal court from stopping individuals in recovery and treatment providers from moving into their cities.
Another disability advocate, Matthew Dietz, also agrees that Boynton Beach is on a slippery legal slope. Dietz is the founder and chief litigator at the Disability Independence Group in Miami.
“The moratorium is entirely unlawful because it targets a protected class — group homes for people with medical disabilities. We have children with developmental disabilities, not just homes for people in recovery,” Dietz said. “It would be like banning Muslims from moving into Boynton Beach.”
Boynton’s Mayor, Steven Grant, said the city is on solid legal ground because it is targeting all group homes, not just those for medical reasons.
“There is no Constitutional right for unrelated people to live together,” he said. “These businesses are affecting the quality of the single-family neighborhoods we are trying to create in Boynton Beach.”
Constitutional lawyer Green disagrees. He said, “Group homes by definition are for people who need accommodations for medical reasons.”
Delray collecting data
Delray Beach has just started the process of interpreting the joint statement.
In December at its Planning and Zoning Board meeting, members reviewed changes to the city’s reasonable accommodation ordinance. They agreed to require all group home operators to certify annually that they need the accommodation to operate.
They also voted to approve having the property owner’s name and consent for operating the group home. In the past, the Delray Beach property owner did not always know that the house was used as a sober home, said Tim Stillings, Delray Beach planning director. Having this information allows the city recourse if a sober home operator puts undue expense on the city.
By federal law, the city cannot charge a fee for the reasonable accommodation, Stillings said.
Resident Andy Katz asked whether the changes addressed the revised joint statement.
“We are still evaluating the effects of the new joint statement,” said Terrill Pyburn, the city’s special counsel and former acting city attorney. Those changes will come back before the board in the next few months, she said.
To answer resident Patsy Westphal’s question about a possible moratorium, Pyburn said, “Some cities are looking at that. I believe Boynton Beach did pass one.
“However, we have some concerns that it’s not the best way to proceed,” she said. “It is difficult to sort of suspend the Constitution and say you cannot apply for accommodations during this time period. Therefore, I would advise against that for the city of Delray Beach.”
The day after the meeting, Pyburn said the city is in the process of hiring an expert planner “with over 40 years in the business related to fair housing issues.” Then it will conduct a study to rewrite its regulations that take into account the revised joint statement, she said.
“The city needs more time to amass the info to enact an ordinance covering group homes,” Pyburn said. “The changes won’t necessarily be made under reasonable accommodations.”
The Delray Beach mayor wasn’t ready to reveal exactly what the city is doing. “We don’t want to provide others with a road map of what we’re doing until we have the data collection piece underway,” Cary Glickstein wrote in an email.
The changes will be in place by April, he said, and “there will be several ordinance and LDR (land development regulation) changes making their way through our approval process between January and April.”
Boca still reviewing
Boca Raton staff is still reviewing the joint statement and whether any revisions can be made to its regulations, said Chrissy Gibson, city spokeswoman.
City Attorney Diana Grub Frieser reviewed the statement and told City Council members in November that she did not see much difference from the old joint statement. “The first part reads that the locality can deny the waiver (for a sober home), but proving it would put an undue burden on the local government,” she said.
Frankel, a former West Palm Beach mayor, is concerned that the cities in her district have ample help to revise their group home regulations. She hosted a technical workshop in December for city attorneys and planners in her district on how to use the guidelines provided in the revised joint statement.
Delray Beach and Boca Raton sent representatives, she said, along with seven other cities and Palm Beach County.
“My staff attorney was there,” Frankel said. “The lawyers are optimistic they could write something that is usable and can stand up in court.” Ú