Metropolitan News-Enterprise


Friday, December 21, 2007


Page 1


Brown Rejects City Limits on Residential Treatment Programs




A city may not limit the number of residential drug and alcohol treatment programs serving six or fewer persons on the ground that it already has enough such programs to serve its needs, Attorney General Jerry Brown has opined.

In a formal opinion filed Tuesday, Brown also concluded that the state may not deny a license to a treatment facility on the ground that the community in which it proposes to locate is over saturated with such facilities.

The opinion was requested by Sen. Tom Harman, R-Costa Mesa, whose district includes Newport Beach. That city has been considering an ordinance that would prohibit locating a residential treatment facility within 500 feet of another such facility.

Newport Beach officials say residential programs have become so numerous as to threaten the safety and character of city neighborhoods.

Brown concluded, however, that the proposed ordinance would violate Health and Safety Code Sec. 11834.23, which, among other things, requires that recovery and treatment facilities serving six or fewer residents be treated as residential uses for zoning purposes.

“Accordingly, a city may not make its land use decisions in a manner that will disadvantage treatment facilities serving six or fewer persons when compared to decisions applicable to ordinary single-family residences,” the attorney general wrote.

The law deals with a statewide issue, and is thus applicable to charter, as well as general law, cities, Brown added.

As for the licensing issue, Brown explained that residential drug and alcohol treatment facilities, unlike “sober living” homes that offer persons in recovery a place to live but not treatment or detoxification services, must be licenses by the Department of Alcohol and Drug Treatment Programs.

By statute, the attorney general added, the department “shall issue new those programs that meet the criteria for licensure,” which Brown noted do not “make any reference to a community’s current level of need for treatment facilities or to the sufficiency of existing facilities to meet the local need.”

Nor, he added, are community needs a criterion for revocation of existing licenses, which is permitted only if the licensee engages in misconduct.

Brown acknowledged that Sec. 11834.20 declares a legislative policy of permitting and encouraging a sufficient number of facilities “commensurate with local need.” That section, however, “is only an expression of legislative intent that cities should encourage development of treatment facilities, and cannot be reasonably read to impose a limit on such development” or to “afford a basis for denying a license where the applicant meets all basic qualifications for the license.”

The opinion, which was prepared for Brown by Deputy Attorney General Gregory L. Gonot, is No. 07-601.


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