City of San Rafael

There are several state and federal laws that limit the authority of local government in terms of land use regulation. Some of the more important preemptions are summarized below.

Residential Care Facilities and Group Homes

Both federal and state laws limit the City’s ability to regulate residential care facilities and group homes that are often located in residential neighborhoods. These laws are intended to integrate group living arrangements throughout a community and prohibit discrimination.

Residential Care Facilities

Residential Care Facilities include residential facilities licensed by the State Department of Public Social Services for 24-hour non-medical care of the elderly (assisted living), developmentally disabled, mentally disordered.

Four state agencies are responsible for licensing and overseeing the range of community-based residential facilities. Several types of facilities provide services to diverse populations.

Residential care facilities are designed for individuals who require 24-hour supervision but who do not generally need medical care beyond routine health checks and medication monitoring. Residents generally share responsibilities, meals, and recreational activities; they attend schools, work, and use other services in the community.

The California Department of Social Services licenses group homes and small family homes for children and youth. Group Homes provide supervision and services in a structured environment primarily for children and youth in the foster care system. Small Family Homes provide care in a family setting for six or fewer children with physical and developmental disabilities. In addition, the department licenses facilities for adult and elderly residents who are not able to provide for their own daily needs, have AIDS or HIV, or are recovering from mental illness.

The Department of Alcohol and Drug Programs (DAPD) licenses Alcoholism or Drug Abuse Recovery or Treatment Facilities which provide a range of services in a supportive environment for adults who are addicted to alcohol or drugs. In addition, the Department of Corrections uses DAPD-licensed facilities to provide community-based drug treatment and recovery services to offenders under the Substance Abuse and Crime Prevention Act.

The Department of Health Services licenses community-based residential health facilities that provide skilled nursing care on a continuous and intermittent basis. These facilities serve adults and children who are severely developmentally or physically disabled, or are terminally ill.

Residential care facilities must have a valid license to operate. The licensing process consists of a background check on the applicant and an on-site facility inspection to ensure that the facility meets health and safety standards. When all health and safety requirements are met, the licensing agency issues a license valid for two years. It conducts a comprehensive facility evaluation on an annual or bi-annual basis.

Deficiencies are cited and monetary penalties can be assessed if the facility does not come into compliance with licensing laws and regulations. In addition, the state licensing agency investigates complaints and addresses the concerns of neighbors and other community members.

State law requires that residential care facilities that serve six or fewer residents be considered a residential property and be treated the same as a single-family home. This means that local government can impose on these facilities only those local use restrictions or fees that apply to other single-family residences.

State laws also address over concentration of facilities. Except for residential facilities for the elderly and alcohol and drug facilities, new residential care facilities must be located at least 300 feet from another facility. Local governments can object to requests for placement closer than these limits.

The City does not have the ability to regulate residential care facilities for the handicapped, and also cannot regulate small residential care facilities (serving 6 or fewer residents). Large residential care facilities (serving 7 or more residents) which do not care for the handicapped are limited to High Density Residential Districts in San Rafael, and require the issuance of a Use Permit by the Planning Commission, which requires a public hearing that is noticed to property owners and occupants within 300 feet of the subject property.

Group Homes

Group homes include residential communal living facilities for persons defined by federal law as “handicapped,” which includes those having physical or mental impairments, or those recovering from alcoholic or substance abuse. These are supportive group living situations where care services are not provided and state licensing is not required.

The City’s ability to regulate group homes is limited by the Fair Housing Act of 1988 (FHA). This federal law provides for unrestricted location of residential group homes for the handicapped. The FHA prohibits cities from restricting group homes from residential zoning districts or requiring use permits, establishing dispersal requirements between facilities or establishing maximum occupancy levels. The FHA also requires that the City provide an application process for allowing the waiver of zoning regulations that might preclude housing opportunities for those with handicaps. The City’s Reasonable Accommodation regulations are contained in Chapter 14.26 of the Zoning Code.

What You Can Do

Community members generally agree that persons with disabilities and other special needs deserve to live in a community setting like a residential care or treatment facility instead of being isolated and institutionalized. But, it is a common reaction to feel concerned or fearful when a facility moves in next door or down the street.

Advocates and facility licensees point out that care and treatment facilities have to be put in someone’s neighborhood. They argue that neighbors’ fear is largely unfounded; they point to examples of facilities peacefully coexisting with neighbors and studies that conclude that residential care facilities do not have a negative affect on neighborhood safety and property values. In addition, advocates find that neighbors are often uninformed about the facility program and residents, which leads to misconceptions.

However, communities do experience problems with facilities. Seventy-two cities responding to a 1999 League of California Cities survey had received one or more complaints ranging from increased traffic, noise, and other neighborhood disturbances – to code violations – to criminal activities such as assaults and burglaries. The majority of complaints involved facilities that serve youth, individuals with mental illness, and individuals with alcohol or drug addictions.

The City cannot require but encourages facility operators and local neighbors to have open lines of communication and periodically meet to discuss issues of concern.

The City has also actively lobbied state legislators to amend regulations for residential care facilities to allow greater local regulation, or, at a minimum, establish a 300 foot separation requirement for residential care facilities for alcohol and drug rehabilitation and elderly care facilities as is currently required for all other types of residential care facilities.

You are encouraged to express your comments, either pro or con, related to residential care facilities to our local state legislators. State Senator Carole Migden can be contacted at http://dist03.casen.govoffice.com/, and Assemblymember Jared Huffman at http://democrats.assembly.ca.gov/members/a06/.

Telecommunication Antennas

The federal Telecommunications Act of 1996 regulates the telecommunications industry. A principal objective of the Act was to promote a pro-competitive, deregulatory environment for telecommunications providers, intended to secure lower prices, better service, and faster access to new technologies for consumers.

The Act precludes local regulations which “prohibit the ability of any entity to provide any interstate or intrastate telecommunications service." More specifically, the Act states, “No state or local government may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communication] Commission’s regulations concerning such emissions.” Court cases have confirmed that cities may not impose any limitations or restrictions on the establishment or location of wireless telecommunication facilities based on concerns about the health effects of radio frequency (RF) emissions.

In summary, the Act allows the City to:

§ Regulate the location and design of new telecommunication antennas, so long as these regulations do not preclude an operator from providing service to all areas of the community.

§ Assure that telecommunications facilities operate within the established radio frequency (RF) emission standards established by the Federal Communications Commission (FCC).

The City’s regulations for antennas are contained in Section 14.16.360. These regulations indicate the City’s preference to:

§ Co-locate new antennas on existing poles rather than erecting new facilities,

§ Locate antennas in non-residential areas, or demonstrate that adequate coverage cannot be achieved by placement in such locations before consideration for facilities in residential or open space areas, and

§ Disguise the appearance of antennas by using “stealth design” where antennas are incorporated into building design elements, as simulated vegetation, etc.

The City of San Rafael is one of very few cities in the nation that require City-administered testing of RF emissions from all telecommunication antennas in the community every three years to assure that they are operating within the RF emission standards established by the Federal Communications Commission. The results of these RF tests are available for review in the Planning Division.

Density Bonuses and Residential Parking Requirements

In 2004 the State revised its “Density Bonus” requirements for new housing developments that include affordable housing units (California Government Code Section 65915). The law requires that local government offer:

1. Additional residential density (additional units) above local zoning limits,
2. Zoning concessions which allow deviation from local zoning requirements, and
3. Revised parking requirements for new residential units.

These benefits must be provided by local agencies for projects that incorporate varying levels of deed-restricted affordable housing units. The State law uses a sliding scale whereby higher proportions of affordable units yields higher levels of density bonus units and additional zoning concessions. A table summarizing the varying levels of affordable units to allowable density bonuses and number of concessions is included in the Zoning Code in Section 14.16.030. Since San Rafael has an adopted Inclusionary (Affordable) Housing Program [link] which requires a minimum percentage of affordable housing units be included in all residential projects that exceed a single unit, virtually all new residential projects in San Rafael will automatically qualify for the State Density Bonus allowances.

Projects which include the requisite proportion of affordable units also qualify for residential parking rates adopted by the State. The following summarizes these minimum parking rates which must be allowed:

These requirements include guest and handicap parking, and allow for tandem parking (one space behind another) as well.

The City has no discretion in denying requested density bonuses, zoning concessions or reduced parking rates for projects that meet the provisions of the State law.