Attachment 53 - Letter from A. Don Capobres, Linda Mandolini, and Wendi Baker dated February 13, 2015GROSVENOR EDEN
February 13, 2015
COMMUNITIES Or DISTINCTION
Town of Los Gatos
Honorable Mayor Jensen and Council Members
Housing Element Advisory Board
c/o Laurel Prevetti, Assistant Town Manager and Community Development Director
110 E. Main St.
Los Gatos, California 95031
Honorable Mayor Jensen, Council Members, and Housing Element Advisory Board Members:
At the February 3rd, 2015 Town Council Meeting, Council sought direction from Staff and the
Town Attorney to determine what the legal limitations may be for requiring developers on the
North 40 to provide for either an age 55 -plus or 62 -plus affordable or market rate component
through the North 40 Specific Plan.
This question has arisen on numerous occasions during the Specific Plan process. For our own
clarity, we requested a legal analysis from Goldfarb & Lipman. We have attached their
conclusions for your reference. In brief, while senior housing can be incentivized by a Specific
Plan, requiring such housing types would violate state and federal fair housing laws. .
Although the Town's Specific Plan is still in process, after years of observation and discussion
with the Town, we respect that the Specific Plan emphasizes residential design towards the
Town's unmet housing needs, including places for senior to live. We embrace the Town's vision
in the Specific Plan which allows for the provision of a multi - generational and mixed income
neighborhood. We are anxious to continue working with the Town to implement this vision.
We appreciate your consideration of the attached letter, and are available for any questions
regarding this matter.
Sincerely,
A. Don Capobres
Senior Vice President
Grosvenor
Attachment: Fair Housing Issues Memo
Linda Mandolini
President
Eden Housing
�ag,e,d ,
Wendi Baker
Vice President of Development
SummerHill Homes
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gold farb 1300 Clay Street, Eleventh Floor
l i p m a rf Oakland, California 94612
attorneys 510836 -6336
M David Kraal
February 12, 2015
Lynn Hutchins
Karen M. Tiedemann
Thomas H. Webber
Dianne Jackson Mclean
To
Michelle D. Brewer
Don Capobres, Grosvenor Americas
Wendi Baker, SummerHill Homes
Jennifer K. Bell
Robert C. Mills
From
Isobel L. Brown
Barbara E. Kautz
James T. Diamond, Jr.
Fair Housing Issues Regarding Planning and Families with Children
Margaret F. Jung
Heather J. Gould
Summary
Juliet E. Cox
William F. DiComillo
During hearings on the North Forty Specific Plan, public comments have been
Amy DeVaudreuil
made opposing the Town of Los Gatos' (the "Town ") approval of housing that
Barbara E. Kautz
may attract families with school -age children because of school overcrowding. In
particular, proposals have been made that development on the site be limited to
Erica Williams Orcharton
senior housing or to other housing that will not accommodate families with
Luis A. Rodriguez
school -age children.
Xochitl Carrion
Rafael Yaquion
Both federal and state law prohibit the Town from using its planning and zoning
powers to deny residency to, or make housing unavailable to, or discriminate
Celia W. Lee
against, families with children. Planning or zoning restrictions that are adopted to
Vincent L. Brown
discourage families with children from living in the Town, or that prevent
Hana A. Hardy
families with children from living in the Town, such as zoning sites to permit
Caroline Nosello
only senior housing or limiting the number of bedrooms in residences, would
Eric S. Phillips
deny residency to, make housing unavailable to, and discriminate against
families with children.
Elizabeth Klueck
Further, a property owner or manager may not select individual tenants or buyers
on the basis of age unless the housing is designed as senior housing and the
property is operated consistent with federal and state requirements for senior
San Francisco
housing.
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Los Angeles
Analysis
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A. Zoning for Senior Housing
San Diego
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Federal and state statutes forbid the Town from enacting or enforcing land -use
Goldfarb & Lipman LLP
laws that operate to make housing "unavailable" based on "familial status. ".
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"Familial status" is generally defined as a household containing a person under
18 years of age residing with a parent or guardian. (Gov't Code § 12955.2.)
In particular:
• The federal Fair Housing Act ( "FHA ") (42 U.S.C. § 3604(a)) forbids
actions by cities that operate to make housing "unavailable" based on
familial status [and other listed factors].
• The California Fair Employment and Housing Act ( "FEHA ") (Gov't Code
§ 12955(1)) prohibits discrimination through land use practices that make
housing opportunities "unavailable" because of familial status.
• Planning and Zoning Law (Gov't Code § 65008(a)(1)) invalidates any
planning action if it denies the enjoyment of residence to any persons
because of familial status, age, [or other factors]. Section 65008(b)(1)
forbids cities from prohibiting or discriminating against any residential
development because of familial status or age.
Town zoning and planning actions taken for the purpose of discouraging the
construction of housing for families with children would violate these federal and
state fair housing laws. Similarly, planning and zoning actions that on their face
prevent occupancy of housing by families with children — even if done without
the intent to exclude families with children — would violate federal and state fair
housing laws. Examples could include allowing only senior housing to be built
on designated sites or limiting the number of bedrooms in homes.
The Senior Housine Exception.
All of the fair housing statutes contain exceptions for senior housing constructed
and designed in conformance with Civ. Code §§ 51.2 — 51.4 and similar
provisions of federal law. These sections allow discrimination based on age and
familial status by a "business establishment" if the housing is built and designed
to serve seniors. The California Legislature made some of the requirements for
senior housing in California more stringent than those imposed by the Fair
Housing Act "in recognition of the acute shortage of housing for families with
children in California." (Civ. Code § 51.4(a).) A developer may propose, and the
Town may approve, a development proposed by a developer for senior housing
but the Town cannot require senior housing to be constructed or designate a site
for senior housing when there is no proposal or intent by a "business
establishment" to construct such housing. There is no exception to this rule for
affordable senior housing.
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As discussed further in the next section, senior housing in compliance with these
provisions must either require all residents to be 62 years of age or older; or
comply with more stringent design standards and require at least one member of
each household to be 55 years of age or older. Housing otherwise cannot have
age limits or be limited to 'adults only,' and managers and brokers cannot
consider age or familial status in selecting tenants and buyers.
Zoning for Senior Housing. Local agency efforts to require housing to be built or
even maintained for seniors have usually been overturned by the courts. For
example:
Despite an exemption in State law to allow Riverside County to maintain
long- standing senior housing zones, these were found to violate the Fair
Housing Act because the County did not ensure that the housing within
these zones actually complied with the statutory requirements. (Gibson v.
County of Riverside, 181 F. Supp. 2d 1057 (C.D. Cal. 2002).) Note also
that the specific exemption in State law for Riverside County's zoning
suggests that similar zoning by other cities and counties would violate
state fair housing laws.
• An ordinance adopted by American Canyon to require a mobilehome
park approved as a senior park to maintain its senior status, rather than
convert to an all -age park, was found to violate the Fair Housing Act
because the park had never, in fact, actually been operated as a senior
park in compliance with state and federal law. (Waterhouse v. Town of
American Canyon, 2011 U.S. Dist. Lexis 60065 (N.D. Cal. 2011).)
• A mobilehome park owner who alleged that the City of Fillmore adopted
invalid subdivision conditions for the purpose of preventing the park
from converting from a senior park to an all -age park was found to have
standing to sue the City under the Fair Housing Act. (El Dorado Estates
v. City ofFillmore, 765 F.3d 1118 (9th Cir. 2014).
One ordinance was upheld. The Town of Yucaipa was found to be in compliance
with the Fair Housing Act when it adopted zoning prohibiting existing senior
mobilehome parks, which in fact were being operated as senior parks, from
converting to all -age parks. (Putnam Family Partnership v. Town of Yucaipa,
673 F.3d 920 (9th Cir. 2012).)
The decision was confined to the situation where the parks were already
operating as senior housing. The Court specifically declined to determine if its
decision would be the same if the housing was not already serving seniors. (Id. at
927 n.3) The decision was also based on federal law alone and did not consider
possible violations of State Planning and Zoning law or FEHA. State law does
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not have the same language which was relied upon by the Court to uphold
Yucaipa's ordinance.
The Court also noted that the federal statute included a policy of "preserving"
senior housing and that Yucaipa's intent appeared to be to preserve existing
senior housing "rather than animus against families with children." (Id. at 931.)
By contrast, in Los Gatos, there has been extensive public comment, testimony
from the School District, and statements by decision - makers indicating that the
Town wishes to discourage families with children from residing in the North
Forty because of school overcrowding. An early draft of the North Forty Specific
Plan stated specifically that, "Residential product types (market rate and
affordable) shall be limited to product types that respond to emerging demands of
the seniors, empt� nesters, and young adult demographics" — all groups unlikely
to have children. If the Town of Los Gatos were to require senior housing on the
North Forty or to adopt other Specific Plan provisions to prevent or discourage
households with children from moving to the North Forty, the record contains
substantial evidence of "animus" against households with children.
Incentives for Senior Housing. State and federal laws recognize that there is a
need for senior housing and provide funding and incentives to encourage senior
housing. For instance, State density bonus law permits all senior housing to
receive a 20 percent density bonus whether or not it is affordable. (Gov't Code §
65915(b)(1)(C), (f)(3).) There does not appear to be a violation of fair housing
laws if zoning incentives are provided for senior housing, in recognition of its
unique characteristics: lower automobile use, less traffic, smaller household size
(rarely more than two persons /household). Other incentives typically provided
may be lower parking requirements and reduced traffic impact fees. A recent
case recognized that there is a statewide priority to develop senior housing, and,
when a developer proposed a senior project, the city's zoning of the site for
higher density was not illegal spot zoning. (Foothill Communities Coalition v.
County of Orange (2014) 222 Cal. App. 4th 1302.)
However, if there is evidence that these incentives were adopted with the intent
of excluding housing for families with children, the zoning may be found to be
invalid. (Cf. Pacific Shores Properties LLC v. City of Newport Beach, 746 F.3d
936 (9th Cir. 2014; writ of certiorari denied, 135 S. Ct. 436 (2014)) (holding that
facially neutral ordinance invalid where adopted with discriminatory intent).
HUD's Fair Housing newsletter featured a case filed against the Village of Bronxville, N.Y. challenging
a Village ordinance that requires developers to demonstrate that the design of residences is intended to
appeal primarily to singles and to couples without children — a provision similar to the original provisions
proposed in the Specific Plan.. (Westchester Residential Opportunities Inc. v. Village of Bronxville
(S.D.N.Y. Case No. 15 CV 00280) (filed January 15, 2015).
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Conclusion.
Los Gatos cannot adopt Specific Plan provisions for the North Forty that exclude
or discourage families with children, such as by requiring the development of
senior housing or by zoning a portion of the site for senior housing only. While
the Town can provide incentives for senior housing in view of its unique
development characteristics, the incentives could be found to be invalid if they
are adopted with the intent to exclude families with children.
B. Selection of Buyers and Renters Based on Age
The Town has asked if the Specific Plan could require developers to reserve
some portion of the residences on the North Forty for seniors. Only housing that
qualifies as a senior development under both state and federal law may
discriminate based on age and familial status (42 USC § 3607(b)(1) -(3); Civ.
Code § 51.2(a)). Developers cannot choose to reserve a portion of the units in a
non - senior project for seniors, nor can local government require them to do so
Both the federal Fair Housing Act and California's Unruh Act contain standards
specifying whether a development qualifies as "housing for older persons" and
may discriminate based on age and familial status. Reading the two Acts
together, they allow the following types of senior housing:
Housing provided under a state or federal program that HUD recognizes
as intended for elderly persons (42 USC § 3607(b)(2)(A)); Civ. Code §
51.2(e));
• Housing with fewer than 35 units occupied solely by persons 62 years of
age or older (42 USC § 3607(b)(2)(B); Civ. Code § 51.2); and
• Housing with 35 units or more either occupied solely by persons 62 years
of age or more; or occupied by households where at least one occupant is
55 years or older (42 USC § 3607(b)(2)(C); Civ. Code § 51.2 — 51.3).
All new senior housing must include certain design features and have rules and
covenants clearly restricting occupancy consistent with the federal and state
occupancy requirements. Further, the policies, procedures, and marketing must
demonstrate that the project as a whole is intended for seniors. (54 Fed. Reg.
3255 (Jan. 23, 1989).) Mixed - income developments are only possible if separate
buildings are constructed for each income group.
If a development is not designed as senior housing, the owner or manager cannot
use age or familial status as a criterion in deciding whether to sell or rent a home.
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Conclusion
Requiring developers of non - senior housing to reserve a percentage of the units
for seniors would violate state and federal housing laws.
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