Planners recommend council approve updates

Nevada Daily Mail

The Nevada Planning Commission voted 9-0, to send a positive recommendation to the Nevada City Council on a proposed general ordinance to update the city's regulations on the spacing of group homes to comply with current federal and state laws.

According to Section 37-1 of the municipal code, "Group home means any home in which eight or fewer unrelated mentally or physically handicapped persons reside, and may include two additional persons acting as houseparent or guardian who need not be related to each other or to any of the mentally or physically handicapped persons residing in the home."

City attorney William McCaffree told the planning commission during its monthly meeting Tuesday that about two weeks ago he received a call from the U.S. Attorney's office telling him that they were in the process of reviewing cities regulations pertaining to allowed density of group homes. And Nevada's was one of the older ones that needed to be updated.

Since Nevada set the current regulations that require group homes to be located at least one mile apart in all directions in areas zoned R-1, single family residential, McCaffree said that case law and appellate decisions have changed and Nevada's density requirement is no longer acceptable.

He said that when Nevada's ordinance was enacted there was one federal court decision that said the one-mile separation was acceptable.

Since then the law has evolved and now there are a number of court decisions that Nevada's ordinance is in conflict with.

McCaffree said that based on case law cities do not have the right to control the density of group homes and to do so interferes with a persons right to live where they want to.

He said there are no federal regulations setting a density for group homes, but case law has determined that anything over 300 feet separation is illegal.

Nevada's proposed ordinance sets the separation at 500 feet, which McCaffree said takes a middle road between the current one-mile and the 300 feet.

In addition to setting the separation at 500 feet, and requiring city codes comply with federal requirements, it also adds this provision: "Handicap" means, with respect to a person a physical or mental impairment which substantially limits one or more of such person's major life activities, or a person who has a record of having such an impairment, or being regarded as having such an impairment, but such term will not include current, illegal use of or current addiction to a controlled substance as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802, as amended. This exclusion does not eliminate protection for individuals who take drugs defined in the Controlled Substances Act for a medical condition under the care of, or by prescription from, a licensed physician. Individuals demonstrating they are not currently using an illegal drug, are not to be deprived of housing, all as required under the definition of handicap in the Fair Housing Act Amendments.

The next step is for the city council to hold a public hearing and then consider this amendment to the city code.