The Planning and Zoning Commission held one of its final discussions regarding Zoning Ordinance regulations for sober living group homes at its regular meeting on Monday, Feb. 14. More than 200 members of the public crowded into the Community Center ballroom to hear the discussion.

The issue came up nearly a year ago with concerns about substance abuse detoxification and rehabilitation facilities possibly wanting to open in Fountain Hills.

Through the discussions it has been clarified that group homes for sober living uses is a greater challenge for regulation, so staff chose to first focus on that goal.

In his staff report to the commission Development Services Director John Wesley said detox facilities are not being ignored.

“Detoxification facilities…will be discussed at (a) subsequent meeting, hopefully next month,” Wesley said. “Detoxification is a medical, non-residential activity and will not be permitted in residential (zoning) districts.

“We understand there is concern some level of detoxification may be taking place in current sober living homes. (That) is not the intended use of these homes.”

Wesley also addressed the concern that sober living homes might be used for medical procedures as part of a “partial hospitalization” program. He said that is also a violation of laws governing sober living homes.

“A person living in a sober living home can be in a partial hospitalization program and go to treatment away from the home during the day,” Wesley said.

Partial hospitalization treatments can not be done at the sober living facilities.

Wesley also described the current status of group homes in Fountain Hills. He said the Town has record of 13 licensed and approved group homes. Most of those (nine) are assisted living or elderly or disabled care homes. Over the past three years two of the licensed sober living homes have relocated within the town and three new facilities have been approved, one licensed as assisted living and two as sober living homes.

There are no new requests being processed at this time, according to Wesley.

Legal view

Attorney Jon Paladini with the firm of Pierce Coleman, LLC was present to discuss legal aspects related to sober living, or group homes. Town Attorney Aaron Arnson, also with Pierce Coleman, was also present. Paladini made the presentation, as he has expertise in fair housing regulations and was involved in efforts to address concerns over sober living homes in Prescott in recent years.

The federal Fair Housing Act requires all cities, counties and states to make a “reasonable accommodation” in their zoning when the number of residents exceeds the local cap on the number of unrelated people who can live together in a dwelling. This allows community residences for people with disabilities to locate in all residential zoning districts.

It is settled law that for zoning purposes, a community residence (group home) is a residential use, not a business use. Courts have consistently concluded community residences foster the same family values that even the most restrictive residential zoning districts promote.

Staff has proposed language to define a community residence, which is becoming the more common term for group homes, as follows:

“A community residence is a residential living arrangement for five to 10 individuals with disabilities, excluding staff, living as a family in a single dwelling unit who are in need of the mutual support furnished by other residents of the community residence as well as the support services, if any, provided by the staff of the community residence. “Residents may be self-governing or supervised by a sponsoring entity or its staff, which provides habilitative or rehabilitative services related to the residents’ disabilities. A community residence seeks to emulate a biological family to foster normalization of its residents and integrate them into the surrounding community. Its primary purpose is to provide shelter in a family-like environment.

“Medical treatment is incidental as in any home. Supportive inter-relationships between residents are an essential component.

“Community residence includes sober living homes and assisted living homes but does not include any other group living arrangement for unrelated individuals who are not disabled nor any shelter, rooming house, boarding house or transient occupancy.”

Wesley suggested defining long-term and short-term residency separately to refine the distinction between sober living requirements as well as elder care facilities. He proposed using “family community residence” for those facilities where no limit on the term of residency, and “transitional community residence” where stays are expected to be shorter.

Staff is also recommending licensing of facilities through the Arizona Department of Health Services, the Arizona Recovery Housing Association or “Permanent” Oxford House Charter.

There is a need to gather significant information in the application process to understand the type of use as well as make applicants aware of community expectations, according to Wesley. He made proposals along those lines.

Staff is also recommending inclusion of a process for waiver of reasonable accommodation. Such waivers would be heard by the Board of Adjustment.

State Representative John Kavanagh, a Fountain Hills resident and former council member, urged the commission to “push the envelope” on regulations and not fear lawsuits.

“You need to push the envelope to protect the community,” Kavanagh said. “If you don’t (the Town) will get a reputation as a community that rolls over.”

Kavanagh also urged residents who are concerned about what they are witnessing in their neighborhood to document with a log or diary what they observe for enforcement purposes.

Commission members told Wesley their proposals for the ordinance. While staff proposed the regulations cap the number of people living in a sober home at eight, Commission Chairman Peter Gray said he wants to see that number at six – to include oversight staff.

The proposed separation distance between facilities is at 1,200 feet and it was suggested that remain – property line to property line.

Gray asked that level 2 offenders be prohibited from staying at such facilities in town.

Commissioners also asked that the use allowed by right be based on length of stay, with shorter term use being allowed in multi-family residential, reserving single family districts to longer use of up to a year or more. They also asked for an insurance component to be included in the application process.

“I feel we have something that is fair and equitable,” Gray said. “And it is consistent with the norm for Fountain Hills.”

Staff has scheduled the commission public hearing and consideration of a recommendation on the proposed regulations for its next meeting on Monday, March 14. The council is scheduled to hold a hearing and consider the regulations at its first session in April on Tuesday, April 5.