1. Conditional Use Permit - Freedom House (Tabled August 2, 2010)1
Charles A. Harball Office of City Attorney
City Attorney 201 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
TO:
FROM:
ATE:
SUBJECT:
Kalispell City Council
Jane Howington, City Manager
Charles Harball, City Attorney
September 7, 2010 — Regular Meeting
Tel 406.758.7709
Fax 406.758.7771
charball@kalispell.com
Conditional Use Permit for Freedom House of Kalispell, Inc. —
Tabled August 2, 2010)
This matter was tabled at the regular meeting of Council on August 2, 2010 to
September 7, 2010 for the purpose of allowing the property owner to file an agency
letter indicating approval and interest in the conditional use permit as applied for by
Freedom House of Kalispell, Inc. [Freedom House]. That agency letter has now been
received by the City.
At the August 2, 2010 meeting the Council heard public comment from the applicants
as well as from the neighbors of the property. The purposes of the facility as well as the
processes used were discussed by the applicant. Some neighbors also spoke of their
concerns regarding the oversight of the facility, the possible impacts upon their
properties and whether or not this location was best suited for the facility.
Freedom House of Kalispell, Inc. [Freedom House] applied for a conditional use permit
in an area of Kalispell that is zoned Two Family Residential, R-4. The subject dwelling
structure is one unit of a "duplex". The use is described as a residence (a clean and
sober house) for eight or fewer men recovering from alcohol or drug addiction. The
home will have a resident manager and specific "house rules" that includes a curfew
and a prohibition on the use of alcohol or illicit drugs. The penalty for violation of the
rules is immediate eviction. The stated purpose of the home is to provide a stable and
sober residential environment for men attempting to recover from alcohol or drug
addiction.
The City required the Freedom House to apply for a conditional use permit because the
use to which the property is being put does not cleanly fall within any of the categories
of the City's zoning code. It does not fall within the category of a residence for the fact
that its occupants must be recovering from alcohol or drug addiction (a legal
discrimination), there is a stated purpose to the facility beyond that of a residence, and,
CUP for Freedom House of Kalispell, Inc.
September 7, 2010
Page - 2
presumably, the rules of eviction under the Landlord/Tenant Act would not apply.
Further, at the time of the application, the code's definition of family was: One or more
persons related by blood, marriage, adoption or a group of not more than four (4)
persons excluding servants, not related by blood or marriage, living together as a single
housekeeping unit in a dwelling unit. Since that time, because of the ongoing evolution
of housing discrimination laws, the zoning code was been amended by Council, deleting
the family definition from the code. Therefore, that issue, at least, which may have
otherwise required a CUP has been removed.
The definition of a Community Residential Facility, which is a conditional use in this
zone, does not strictly apply to this use for the fact that the facility is not licensed or
overseen by any State agencies. However, the Zoning Administrator, whose function
under KMC 27-02-050 is to interpret land uses, determined that a safe harbor under
housing discrimination rules and most apt fit for this use was to consider it a
Community Residential Facility and therefore a conditional use. This determination
allowed the CUP process to be used to give the applicant a forum to request reasonable
accommodation and for the City to take comment from the public. An adequate legal
record is being made through this process to demonstrate the City's response to the
request for reasonable accommodation.
It is recommended to Council that the City Council approve the request for a
conditional use permit with reasonable conditions attached. The conditions previously
discussed by the Planning Board and already implemented by the applicant are the
removal of signage and a plan to improve communications between the facility and the
neighborhood. To address the concerns of the neighborhood about oversight of the
facility the Council could consider a condition that a resident sober manager be
required at the facility (currently a rule of the facility) and/or that a current list of
residents be provided to the Kalispell Chief of Police and that the residents give consent
to the facility for this disclosure.
Respectfully submitted,
Charles Harball, City Attorney
Office of City Attorney
City of Kalispell
PLANNING FOR THE FUTURE
MONTANA
REPORT TO: Kalispell Mayor and City Council
FROM: Sean Conrad, Senior Planner
Jane Howington, City Manager
Planning Department
2011" Avenue East
Kalispell, MT 59901
Phone: (406) 758-7940
Fax: (406) 758-7739
www.kalispell.com/planning
SUBJECT Conditional Use Permit for the Freedom House
MEETING DATE: September 7, 2010
BACKGROUND: During the council's August 2nd meeting to consider the use permit for
the Freedom House, the council voted to table the project for one month to provide staff
time to address two major issues brought up by the council. These issues included
providing a copy of the application with the property owner's signature and addressing
whether the council could limit the number of persons at the Freedom House.
Attached to this memo is a copy of the conditional use permit application signed by the
property owner, Roland Janzen, as well as a letter from the property manager, Tara
Norick. Ms. Norick's letter affirms the property owner was aware that the Freedom House
has been renting their property.
Regarding the limitation of the number of persons permitted to live at the Freedom House,
the recently approved zoning ordinance update does not include a definition of a family or
place any other limitations on the number of persons in a single-family home. Staff did
not consider the use of the Freedom House to fall under the definition of a single-family
residence thereby limiting the number of persons in the house to that of a family, defined
in the previous zoning ordinance as a group of not more than four persons not related by
blood or marriage. Staff recommended the council consider the use of the Freedom House
similar to a community residential facility. A community residential facility is permitted
through state law and allows up to eight unrelated persons living in a single-family home.
In staffs opinion, a community residential facility most closely resembles the use of the
property requested by Freedom House. A memo from the city attorney further discusses
this issue.
The planning office has also received two comment letters from neighbors of the Freedom
House. The letters are attached.
RECOMMENDATION: A motion to approve the conditional use permit with the 2
conditions as amended by the planning board would be in order.
FISCAL EFFECTS:
ALTERNATIVES:
Respectfully submitted,
Sean Conrad
Senior Planner
Not applicable
As suggested by the city council.
Report compiled: July 27, 2010
Attachments
c: Theresa White, Kalispell City Clerk
Jane Howington
City Manager
Return to:
Kalispell City Clerk
PO Box 1997
Kalispell, MT 59901
City of Kalispell
P. O. Box 1997
Kalispell, Montana 59903-1997
GRANT OF CONDITIONAL USE
APPLICANT: Freedom House of Kalispell, Inc.
PO Box 3532
Kalispell, MT 59903
LEGAL DESCRIPTION: Lot 4 of Block 146, Kalispell Addition 1 located in Section 18,
Township 28 North, Range 21 West, P.M.M., Flathead County,
Montana
ZONE: Two Family Residential, R-4
The applicant has applied to the City of Kalispell for a conditional use permit to locate a
clean and sober house for eight or fewer men recovering from alcohol or drug addictions in an
existing home in a Two Family Residential, R-4, zoning district. The facility falls under a special
provision in the state statutes that gives them a specific "residential" status.
The Kalispell City Planning Board and Zoning Commission, after due and proper notice, on
July 13, 2010, held a public hearing on the application, took public comment and recommended that
the application be denied.
After reviewing the application, the record, the KPD report, and after duly considering the
matter, the City Council of the City of Kalispell, pursuant to the Kalispell Zoning Ordinance, hereby
adopts Kalispell Planning Department Conditional Use Report #KCU-10-4 as the Council's findings
of fact, and issues and grants to the above -described real property a conditional use pen -nit to locate a
clean and sober house for eight or fewer men in an existing home in a Two Family Residential, R-4,
zoning district subject to the following conditions:
1. It is suggested that Freedom House hold a neighborhood meeting quarterly for the first two
years of operation to foster improved neighborhood relations, to increase awareness of the
operations and activities of Freedom House and to create a forum to accept neighborhood
concerns or issues in the future.
2. The Freedom House sign shall be removed within 10 days of approval of the conditional use
permit.
Dated this 7th day of September, 2010.
STATE OF MONTANA
: ss
County of Flathead
Tammi Fisher
Mayor
On this day of , 2010, before me, a Notary Public, personally
appeared Tammi Fisher, Mayor of the City of Kalispell, known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that she executed the same on behalf of
the City of Kalispell.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal, the
day and year first above written.
Notary Public, State of Montana
Printed Name:
Residing at Kalispell, Montana
My Commission Expires
Planning Department
201 1st Avenue East
Kalispell, MT 59901
Phone: (406) 758-7940
Fax: (406) 758-7739
www.kalispell.com/planning
APPLICATION FOR CONDITIONAL USE PERMIT
PROPOSED USE: Home for recovering alcoholic/addict men
OWNER(S) OF RECORD:
Name: Comfort Living, LLC
Mailing Address:.285 Skyridge Lane
City/State/Zip: Columbia Falls, Montana 59912 Phone: (4D6) 249-6177
PERSON(S) AUTHORIZED TO REPRESENTTHE OWNER(S) AND TO WHOM ALL CORRESPONDENCE IS TO BE
SENT:
Name: Randall Marr, President FREEDOM HOUSE OF KALISPELL, Inc.
Mailing Address: P.O. Box 3532
City/State/Zip: Kalispell, Montana 59903 Phone: (406) 257-7718
LEGAL DESCRIPTION OF PROPERTY (Refer to Property Records).
Street Address: 1128 3rd Avenue W, Kalispell, MT
- Sec.No.18
Township 28N
Range No. 21W
Subdivision
Tract
Lot
Block
Name: Kalispell Addition 1
No(s).
No(s) 4
No. 146
1.. Zoning District and Zoning Classification in which use is proposed:
City of Kalispell and R4
2. Attach a plan of the affected lot which identifies the following items:
a. Surrounding land uses. Private residential
b. Dimensions and shape of lot. 50' x 142'
c, Topographic features of lot. Level
d. Size(s) and location(s) of existing buildings 1672 Sq. Foot
e, Size(s) and location(s) of proposed buildings. N/A
f. Existing use(s) of structures and open areas, Residential
g, Proposed use(s) of structures and open areas. Residential-
h. Existing and proposed landscaping and fencing. Existing
S. On a separate sheet of paper, discuss the following topics relative to the proposed use:
a. Traffic flow and control. 10 or fewer trips per day
b. Access to and circulation within the property. Front and Rear entries
c. Off-street parking and loading. Two spaces in rear ( only two vehicles owned by residents)
d. Refuse and service areas. Refuse cans in rear, service area, N/A
e. utilities. Existing residential
f. Screening and buffering. N/A
g. Signs, yards and other open spaces. N/A
h. Height, bulk and location of structures. Existing single family house.
i. Location of proposed open space uses. Existing residential
J. Flours and manner of operation. Existing residential
k. Noise, light, dust, odors, fumes and vibration. N/A
*SEE ATTACHED SUPPLENT
9
Attach supplemental information for proposed uses that have additional requirements (consult
Planner).
I hereby certify under penalty of perjury and the laws of the State of Montana that the information
submitted herein, on all other submitted forms, documents, plans or any other information submitted
as a part of this application, to be true, complete, and accurate to the best of my knowledge. Should any
information or representation submitted in connection with this application be Incorrect or untrue, I
understand that any approval based thereon may be rescinded, and other appropriate action taken. The
signing of this application signifies approval for the Kalispell Planning staff to be present on the property
for routine monitoring and inspection during the approval and development process.
Applicant Signature
//./ ,f1
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Sean Conrad
Kalispell City Planner
201 First Avenue East
Kalispell, Mt 59901
August 13, 2010
Dear Mr. Conrad:
I am the property manager for 1128 3rd Ave W which is housing the Freedom House. I would like to take
this opportunity to address some of your concerns as we were out of town during the council meeting
where this was discussed. I was the owner of this house from July 2007 until October 2009. In October
of last year my sister and her husband purchased the property from me under the name of Comfort
Living LLC. I am a local licensed real estate broker and have many rentals of my own, so I have managed
the property for her since then.
When Freedom House first applied to be a tenant, we discussed this and based on our support for sober
living principles and Fair Housing Guidelines, we both supported them as a tenant. This was not a back
door effort to get something in the neighborhood without the city's approval. I read through the zoning
regulations and thought that it was the same as having other unrelated tenants living together as there
were no therapists or social workers or agency oversight required. We moved forward with the lease
with this understanding. However, if this was incorrect, we are very willing to proceed with necessary
paperwork.
When the city planned asked for a Conditional Use Permit Application due to the number of residents,
we worked together with Freedom House to fill out the application, then the owner and myself, the
property manager, decided to have Randy sign the application and proceed with the process under
Freedom House. Randall Marr and Freedom House has the authority to act as our agent to present the
application for the conditional use permit.
To this date, Freedom House has been an exemplary tenant. The house and property are clean and in
good condition. All rent is paid on time with good communication between the tenant and myself. The
tenants in the back apartment have been there over a year and the only problem ever expressed was a
Freedom House tenant smoking in the back yard near one of their windows when Freedom House first
moved in. This was related to Randy Marr and the situation has not occurred again.
I have personally been in contact with the neighbors in an attempt to discuss their concerns. At the
time, their concerns were more about the background of the men staying there than any noise or
activity at the house. I ensured that no violent or sexual offenders would be allowed to live in the house.
I then looked on line at the registry and found 46 other sexual or violent offenders live within 1 mile of
this location, so any issues in the neighborhood will likely come from other unsupervised locations. I
have given my number and email to the neighbors to reach me if they have any issues. So far, the only
communication from the neighbors has been in regards to the city approval process.
Both the property owner and myself support Freedom House in their current location. As property
manager, I am happy to provide any oversight required by the city. Please let me know if you need any
further information.
Sincerely,
Fi
OU4U, UL�'z
Tara Norick
Greater Valley Realty
406-249-6177
Allison Ann Bishop
1115 3`d Avenue W
Kalispell MT 59901
August 24, 2010
Kalispell City Council
Mayor and Council provided a forum to raise and discuss concerns and questions about Freedom House
at the August meeting. I continue to have many concerns, but I wish to enumerate three for your consideration
at the September meeting.
The report from the Planning Board regarding the request for a conditional use permit (document #KCU-10-4)
needs to be amended.
Amendments must address: (1) the dwelling size and density of persons on the property as a single
dwelling with a detached garage, which also contains an apartment, (2) parking requirements for the
correctly described dwelling, (3) removal of commentary regarding "no impact on the neighborhood" and
"no impact on property values" unless documentation exists to substantiate these comments.
The facts of this report, if a decision is based on it, are what support the decision. At this time, the report
does not accurately describe the situation.
If Council intends to place conditions upon Freedom House, assure that the conditions can be enforced.
Placing unenforceable rules on clean and sober living arrangements will create gaps —actual and credibility.
For example, if a density is stipulated by zoning, how is that enforced?
Use clear information and reasoning to support Council decisions.
The Planning Board and staff, other City of Kalispell departments, and the residents of Kalispell need to
know what your decisions are and what information and evidence supports your decision. As we all go
forward, we will be better able to modify what works and doesn't work if full information underpinning the
decision is clear.
The Board of Freedom House chose to establish this house without obtaining a conditional use permit or
engaging the neighborhood.
I ask the Mayor and Council to continue frank and thorough consideration of the concerns and merits of
Freedom House. It is through transparency, respect, and forthrightness that we will find the best balance of
rights and responsibilities for everyone.
Respectfully,
Allison Ann Bishop
From: Michelle Anderson
Sent: Monday, August 23, 2010 7:46 AM
To: Sean Conrad; Tom Jentz
Subject: FW: Freedom House: Sober Living Home Research to Assist City Council. Public Comment
for Sept 7th meeting.
From: Phil & Michelle Guiffrida [mailto:phil.cjpllc@yahoo.com]
Sent: Sunday, August 22, 2010 3:58 PM
To: Theresa White; Jane Howington; Theresa White; Judi Funk; Michelle Anderson
Subject: Freedom House: Sober Living Home Research to Assist City Council. Public Comment for Sept 7th meeting.
August 22, 2010
Kalispell City Council
201 1st Ave East
Kalispell, MT 59901
City Council and City Staff Members:
Over the last few weeks, neighbors and concerned citizens have been conducting a research drive to provide
city staff with credible research into how other cities across the United States have dealt with zoning and
density issues caused by Sober Living Facilities. This information is being sent to you via email as hyperlinks
have been put in place to ease your navigation to specific news articles, city council minutes, and attorney
notes.
After reading through the research, I have found that in most cases Sober Living Facilities have one thing in
common; they enter into cities with complete disregard to zoning, hiding behind the Fair Housing Act.
A playbook designed by the National Institute for Chemical Dependency is a step by step guide for
these businesses. The 1st paragraph of this article can be seen below:
To begin with, let us tell you that this article is going to smash any preconceptions out there regarding
opening a halfway house in the USA. According to research you do not need a license, permit, or any other
document to open a halfway house. if any person, government official, government agency, zoning
commission, etc. tells you otherwise, they are engaging in illegal and unfair practices. Know your rights (see
bellow links to know your rights). NATIONAL LAWS (ADA) ALWAYS SUPERSEDE LOCAL LAWS. See the
bottom of this article on filing complaints regarding violations of The ADA, or other types of
discriminations.
See the full article at How to Open a Halfway House
The importance of the Freedom House case is the precedence it will set for the State of Montana and Kalispell
in general. Our research showed us that this may in fact be one of the first cases Montana has seen that has
not dealt with a true licensed Community Residential Facility. With that being said, you are not alone on a
National Level. The lack of oversight and regulation is what makes these facilities so unique. It is also what
has caused many headaches for cites in general. If cities do not take proactive steps to create non
discriminating zoning and density laws, these homes will multiply and take over cities. It is unfortunate that
the City of Kalispell did not have the time to be proactive and now we are stuck in a reactive state, which in
most cases leads to fast decisions that have faulty consequences. Tabling this conditional use permit at the
last city council meeting was a good move, as it has allowed you all a number of weeks to research and come
up with a decision that is best for the City of Kalispell.
I want to quickly point out that in my opinion the City Planning Department started us out on the wrong foot
with the Staff Report # KCU-10-4. Their approach to the report was that of extreme caution, and I do not
know who or what made them feel this was the route to take. I do not know if it was a personal position or if
it was to shield the city from a lawsuit, but I do know it did not do the City of Kalispell any favors. To come out
and say on an official report that the addition of a Sober Living Facility would have absolutely no impact on a
neighborhood in the areas of adequate usable space, property values, schools, police, and neighborhood
impacts was reckless to say the least. I would like you all to read the article below titled Residential Recovery
Homes and Their Local Impacts. This article, which was created by a law firm, accurately points out the local
impacts on a city by this type of unlicensed facility. If the planning department staff would have used this
article for research, it may have persuaded them not to take the easy way out.
Residential Homes and Their Local Impacts
The hyperlinks below will show you many different ways cities have addressed this crisis. Most of this
research comes from the state of California, as they have the most experience with these types of facilities.
This makes sense in our case as Freedom House's founder came to the area from this state. Some felt that
buffer zones were a way to go, some took a stronger look at the definition of "family" or "disability", some
chose to define these facilities as boarding houses. It needs to remain clear that the neighbors of Freedom
House see a need for this type of facility in our society. Recovery is important to the heath of our city. Our
issues revolve around zoning, density, property value impacts and location. Our argument can be placed on
many different types of special uses, and does not focus on Freedom House's use specifically. Freedom House
should be located in Business Zoning. This is the area where they would have the least amount of impact
allowing them the tools they need to succeed in creating a positive environment for recovery. There were
some conversations that took place a few weeks ago where it looked like Freedom house was getting out of
their lease and moving into a home located on Main Street in Business Zoning. That board consisted of
members that spoke to you at the last City Council Meeting. Recently a Flathead Beacon article claimed that a
Freedom House Board member said that was off the table and now they are staying where they are at. The
neighborhood was recently told by an offsite manager of Freedom House that he had turned in his keys and
resigned along with most of the board members that spoke at the City Council Meeting. We were told they
resigned under circumstances they do not want to talk about and that Randal Marr was back at the helm. I do
not believe this is about the people striving for sobriety anymore, I feel this is a offensive move on Freedom
House's behalf to force a lawsuit and set a precedence for other facilities to open up all over the city and
state. Please keep this in mind as they are looking for a 100% acceptance of the Conditional Use Permit with
no conditions. Any conditions will result in a lawsuit. So with that said it is time to fold, or fight the fights
worth fighting. The tax payers and voters are waiting to see how you proceed with the issue before you.
A list of Hyperlinks to show you different ways cities have addressed Sober Living Facilities.
Euless City Council Sober Living Facility's Item #14
City Code on Sober Living Homes
Newport Beach Sets Conditions on Sober Living Facilities
News Article on Newport Application process
Sweeping Ordnances to regulate so called Sober Living Houses
Bakersfield defines Sober Living as Rooming Houses
What Authority do City's Officials Have
Orem Planning Department sets strict conditions on Sober Homes
News Report on Problems with Zoning Permits Sober Living
California Government Report
California Government Report 2
Citv of Los Angeles Report on Sober Living Facility's
See Page 4 Section 4
Distinction of types of homes.
Select Laws on Residential Recovery Facilities
News Report on Lack of Rules and Ideas for Sober Living Facilities
News Report on Pennit Denial
Public Law Jounial. Sober Living Homes
US Department of Justice FHA
Virginia State Info
Sincerely,
Phillip Guiffrida III
1124/1126 3rd Ave West
Kalispell, MT 59901
phil.cipllc@yahoo.com