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1. Conditional Use Permit - Freedom HouseCharles A. Harball Office of City Attorney City Attorney 201 First Avenue East P.O. Box 1997 Kalispell, MT 59903-1997 i TO: Kalispell City Council Jane Howington, City Manager FROM: Charles Harball, City Attorney DATE: September 27, 2010 — Workshop Tel 406.758.7709 Fax 406.758.7771 charball@kalispell.com SUBJECT: Conditional Use Permit for Freedom House of Kalispell, Inc. — Tabled August 2, 2010 and September 7, 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 was submitted and the matter was again considered on September 7, 2010. Council heard more evidence from the applicant and from the public and determined that it was in the best interest of the applicant and the public to again table the matter until it could be discussed in a workshop session to ensure that the Council had a firm grasp on the legal parameters under which it is operating as well as the issues brought forth by the neighborhood. The issues and concerns brought forth by the community can be characterized as set forth below: ® Safety of the neighborhood and children given the close proximity of Legends Stadium and the high school activities that go on there ® Impacts to property values ® Sexual offenders living in the Freedom House ® Number of men living in the house (allowing up to eight men in one smaller size home exceeds the home's capacity to comfortably house the men) 0 Providing handicap accessibility to the house CUP for Freedom House of Kalispell, Inc. September 27, 2010 Page - 2 ® Parking, both off-street and on -street, given the parking problems when games are held ® Freedom House is out of character with the existing neighborhood (number of men living in the home/rules of the house/on-site manager out of character with the predominant single-family residential nature of the immediate neighborhood) ® Freedom House provides no counseling support for the men and is not required to be licensed by the state Staff will discuss each of these issues with the Council and provide advice regarding those issues that can be properly conditioned and those that need to be considered protected under Federal and State law. Respectfully submitted, Charles Harball, City Attorney Office of City Attorney City of Kalispell PLANNING FOR THE FUTURE MONT"A REPORT TO: Kalispell Mayor and City Council FROM: Sean Conrad, Senior Planner Jane Howington, City Manager Planning Department 201 V Avenue East Kalispell, MT 59901 Phone: (406) 758-7940 Fax: (406) 758-7739 www.kalisi)ell.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: 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 permit 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 day of _ _ , 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: (406) 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 3. 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. L Location of proposed open space uses. Existing residential J. Hours and manner of operation. Existing residential k. Noise, light, dust, odors, fumes and vibration. N/A *SEE ATTACHED SUPPLENT 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 6 1 R7- / 0 Date S-2s"-/o 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, Tara Norick Greater Valley Realty 406-249-6177 Allison Ann Bishop 1115 B'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 Sean Conrad 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 2 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 Joumal. Sober Livina 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