Wednesday, March 6, 2019

3.5.19 Meeting Summary

As mentioned previously, there were three substantive matters on the agenda last night.  Due to the length of time discussion took, we only got to the first two items and continued the last item for a future meeting.  Those were:
  1. A presentation regarding the Contra Costa County Reentry Network by the Office of Reentry and Justice. This is related to the County's actions with regard to parolees.  Representatives from the ORJ gave a informative presentation on the program from the County perspective.  There were statistics around the target population, the amount of funding available and where some of that funding has been spent.  There was a discussion of the vendors that the ORJ engages with to assist in providing various services.  There was also discussion about recidivism, mass incarceration and prison populations, and the types of criminal activity that fall under the auspices of AB109.  The ORJ representatives also graciously took and addressed a number of questions from the Council.
  2. Revisiting the parolee housing ordinance that was passed last year.  The Council decided to take no action on this matter.  By a 3-2 vote, the Council rejected Councilmember Diaz's request to examine in greater detail some of the existing parameters of the ordinance.  By a 4-1 margin (not a vote because my motion did not receive a second), the Council rejected my request to make a determination on whether the Oakhurst Country Club would be considered a business licensed for on or off sale of alcohol as described in the parolee housing ordinance and therefor trigger the sensitive use buffer distance requirement.
  3. A discussion about the content and parameters of Accessory Dwelling Units (ADUs) in response to recent changes in state law. - This was continued (pushed out to future meeting).
I requested as a future agenda item, a discussion of the CASA compact that was recently endorsed by both MTC, and more recently ABAG. After which the city should take a position on whether it supports or opposes the CASA compact in its current form.

More detailed thoughts below:


My key takeaways from the presentation were as follows:
  • AB109 does not impose any requirements on cities.  AB109 is focused on counties.
  • Counties are not able to impose any requirements on cities as they attempt to handle the influx of prisoners redirected from state prisons under AB109.
  • Contra Costa County ORJ has not allocated any funds in their budget specific to Clayton.
  • There is no set reimbursement rate per person receiving assistance from the County.
  • If the city refused to allow the ORJ to operate or fund parolee housing in Clatyon, the ORJ would not feel it necessary to litigate (other groups may).
  • The ORJ targets areas that can provide a continuum of services, and they consider any area that has access to public transportation a viable area.  The only public transportation available in Clayton with any regularity is the bus.  It may be worth considering if it's worth having the bus line as existence of this line also forces the city to cede control of a number of other housing related items.
The target population of AB109 were "non, non, non" folks.  Those convicted of non serious, non violent, non sexual crimes.  When we explored this matter in more depth however, that is very misleading in two ways.  First, this categorization only looks at the most recent conviction.  A person that had been previously convicted of a violent, sexual, serious crime but whose most recent criminal conviction was burglary, would be considered a non, non non person under AB109.  

But that doesn't tell the whole story either.  Even if we only look at the offenses that are considered non-violent that fall under AB109, these are essentially only non-violent because of how the state has defined the term.  Lots of things that colloquially would be considered violent have been defined in the law as non-violent.  For example:
  • Brandishing firearm at person in vehicle 
  • Second degree burglary 
  • Bring/possess weapon on grade school grounds 
  • Battery of a peace officer with injury 
  • Threatening to injure a public or school employee 
  • Threats against witnesses 
  • Removal of officer's firearm while resisting arrest
These are all considered "non-violent" under AB109.  There's a much longer list.  Here I discussed it previously.  The ORJ representatives agreed that there are items on the AB109 eligibility list that many people would consider violent or serious but they are using the definitions created in the law.  In my view, unlawful transfer of a firearm to a minor is a serious offense, but AB109 doesn't consider it to be.  There's several hundred other offenses like this too.


Councilmember Diaz had previously requested this item be placed on the agenda for consideration to direct staff action.  In his request, he focused on three things:
  1. Consider expanding the 1000' buffer zone.  He suggested staff take another look at what distance would be most appropriate.
  2. Consider including private parks in the sensitive uses described by the ordinance.
  3. Consider a formal outreach program to assist residents in targeted areas.
In addition to these items, I requested that the Council direct staff to determine whether the Oakhurst Country Club would be considered a business licensed for on or off sale of alcohol as described in the parolee housing ordinance and therefor trigger the sensitive use buffer distance requirement.

Ultimately Councilmember Diaz's motion did not pass and was voted down 3-2.  I was in favor while Wolfe, Catalano, and Pierce were opposed.  My motion also did not pass.  It did not receive a second so there was no official vote.  I was able to raise a number of points during discussion which I will try to summarize below:

Regarding Oakhurst:  The current ordinance reads "A parolee home shall be located a minimum distance of at least one thousand (1,000) feet from any public or private school (preschool through 12 th grade), licensed daycare, library, public park, hospital, group home, business licensed for on- or off-sale of alcoholic beverages, youth center, emergency shelter, supportive or transitional housing when measured from the exterior building walls of the parolee home to the property line of the sensitive use."

The definition of "business" per the municipal code is: "Business" means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes. For purposes of this chapter, the term "business" also includes a nonprofit entity."  

Given that Oakhurst is a business licensed for the sale of alcohol, and can do so at their structure at the end of the 9th hole, and from their mobile cart, I believe this qualifies under the provision in the code as a business licensed for on-or-off-sale of alcoholic beverages.  I sought a determination on this matter but Pierce, Catalano expressed reservations about finding out more information if that would lead to an actual ban.  I am generally of the mindset that more information is better.

Regarding more detailed information on sensitive uses: There are also a number of items that would trigger a sensitive use that we did not fully explore, things like licensed daycares, utilizing our database of business licenses on file, group homes licensed by the state, etc.  Because of this, I thought it would be useful if we could accumulate this more detailed information and do a more robust analysis of where the buffer distances would actually exist so we could get a better understanding of the ordinance as written.  

Pierce responded that this would take effort and would be hard.  My response to that was that just because something was difficult, doesn't mean we shouldn't do it.  Doing the right thing can be difficult, but if it's the right thing to do then we should expend the time and effort to do so.  Continuing with the theme of the evening, the rest of the Council led by Catalano and Pierce did not want to take any action on this.

Regarding additional requirements to Parolee Homes:  I also inquired about additional requirements that we may be able to impose on parolee homes.  Currently on site supervision is required but there is no qualifications for that supervision other than it shall not be a parolee.  I believe we could impose greater requirements on who is performing the supervision, or the number of people performing supervision.  I also raised the idea of a requiring a bond, of say, $10M for each parolee home in the event of some form of non-compliance.  Again, continuing with the theme of the evening, there was no appetite from the rest of the Council to take any action in these areas.

Regarding the level of diligence engaged when the original ordinance was passed: I've read through the record in great detail. When this issue came to the Planning Commission in May of 2018, they were advised by counsel that the ordinance before them was the most restrictive that was legally defensible. That ordinance had 300 feet as the buffer distance. The Planning commission didn’t feel they had enough information and voted to not recommend approval by the Council.

Then when the Council first acted on this issue last July the Council was then advised that 500 feet was the greatest buffer distance that was legally defensible. And then a month later in August, the Council was advised that nay, 1000 feet was now the largest buffer distance legally defensible.

The difference between 300 feet and 1000 feet may seem like a small difference. It’s important to note that the buffer distance describes a radius, not something linear. A 300 ft buffer over a single sensitive use yields 283K square feet in area. At 1000 ft however, a single sensitive use yields 3.1M square feet in area, over 1000% more, or greater than an order of magnitude. Given the magnitude of change over such a short time period, I’m not clear that the level of resources used to investigate this matter was commensurate with the importance of this issue to the residents of Clayton.  This is consistent with the theme of the evening that there was no desire to take further action or perform more diligence.  

Regarding prognosticating on what the State would do in response to a ban:  We heard the refrain when this ordinance was originally adopted of, “if every city in California banned parolee housing then what would the state do?” This idea was also raised by Mayor Catalano last night.  I don’t know what the state would do. But I do know we should act in the best interests of the residents of Clayton now, and if the laws change at a later date then we should continue to act in the best interests of the residents of Clayton then. But that doesn’t mean that we should hamstring ourselves now in anticipation of a change in the law in the future.

Both Pierce and Catalano intimated that the only course of action they would entertain would be to make the ordinance more permissive - allowing parolee housing in more areas of the city.

Regarding regulating or prohibiting businesses:  To be clear, what the city is talking about are businesses.  If an individual parolee chooses to live in Clayton there is no restriction on that nor should there be.  People can choose to live where ever they want - they can buy, or rent, or live with friends or family and no one has a problem with that.  This is an important point and it's worth repeating and keeping in mind when considering this issue.  Cities have wide latitude in regulating businesses that operate within the city.  During last night's meeting I read the following:
Also important to consider is that there is no state law that mandates that cities accept this type of business within their borders. As a result, cities have latitude to make and enforce, within its borders, “all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” This inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction's borders, and preemption by state law is not lightly presumed.

For example, some communities are predominantly residential and do not have sufficient services or space to accommodate” parolee homes. Moreover, these facilities deal with a population that presents a heightened risk to the health, safety, and welfare of the community. Thus, parolee homes may pose a danger of increased crime, congestion, blight, and drug abuse, and the extent of this danger may vary widely from city to city.

Thus, while some cities might consider themselves well suited to accommodating parolee homes, conditions in other cities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens.
This language was lifted from the CA Supreme Court case, City of Riverside v. Inland Empire Patients Health and Wellness CenterThis case wasn't about parolee housing specifically, but it did deal with a city regulating or prohibiting a business within the city.  I replaced some key words for applicability, but the idea expressed in the above could apply to our situation as well.

Regarding the political nature of this issue:  Mr. Napper did mention, and I agree, that ultimately this is a political issue.  The Council has the ability to take a number of different actions, but they do so only on a majority vote.  If the residents of Clayton desire a different outcome, then they can either persuade their elected officials to act differently, or change their elected officials.