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and may it please the court.

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I'd like to begin today by directly answering the two questions the panel posed to the litigants.

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I would then like to talk about how, in examining the record,

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to the facts in this record.

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Let me begin by answering the first question directly.

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Prior to the enactment of the challenge ordinances, sober living homes were previously defined as residential service facilities or boarding houses.

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Sober living

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as boarding houses.

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for the facilities that now qualify as that.

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house or single housekeeping unit, a residential service facility is other than a licensed facility, a boarding house or a single housekeeping unit where the operator provides residents personal services in addition to housing.

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At the same time, during this period, 2000 to January of 2014, boarding house was defined as a dwelling which is

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family, members are non-transient, they jointly occupy the dwelling, and they share the common areas and the household activities.

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This understanding that they were either single housekeeping units or residential service facilities is confirmed also by the land use matrix at the time, you'll find that in section zoning code 1330, and it appears in the extension of record at 2136.

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to provide guest rooms.

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It is within the definition of a residential service facility because, as was defined back then, it provides a supportive environment.

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And finally, like a single housekeeping unit, it functions as a household sharing in duties as well as the expenses.

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This classification that was either a single housekeeping unit or a residential services facility is confirmed in the record by the adoption of Ordinance 1305

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of the single house keeping it it adopts its housing element in that housing element you'll find in the record at page five nine six seven the following statement the housing element of course describing the different types of housing that they have in the city it says residential services

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to housing, continuing with the quotation, an example of this type of facility is a sober living program.

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The second period to look at…

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Can they decide, and clearly I think in answer to that second question, the answer is no.

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As a matter of law, the text and the rules of statutory construction, as they existed after these ordinances were adopted, bars picking and choosing, starting with the definition

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and the general definitions, why can't that facility be in both categories?

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For three reasons, Your Honor.

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First, it would be inconsistent with the plain word or the meaning of the text of the words used.

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Each of these uses is defined with very specific, unique criteria.

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For example, a boarding house is defined as based upon the nature of the rental agreement, the absence of the owner, and a cap put on rooms.

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A group home is defined with very specific

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home means a group home.

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It doesn't say anywhere, and it would be incumbent, the court would have to go ahead and read, a boarding house means a sober living home and a group home.

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Here's another significant point, I think, Your Honor.

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they did link together.

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out or look at the regulation.

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20 days to comply with the provisions of this article.

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of a reasonable combination.

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It said, we will make no exceptions to the 650-foot separation requirement.

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Now, that runs for- So what, I mean, what's the, if a city, I guess I'm going to ask you to accept a couple of points for purposes of my question.

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If the city has a valid reason,

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what I'm asking for is what's the legal authority to say that it is

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authority who's going to receive those requests and decide them whether the request undermines the zoning program.

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And if it does, then that's a factor weighing against granting the accommodation.

[00:16:02] Speaker 01:
There's three responses to that, Your Honor.

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First of all, as I mentioned, the statute itself that's at issue here anticipates that these requests were made.

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Second thing is we are not requesting that there be, for purposes of this case, no

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as to how fiat would be applied.

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And it says on this record that as a matter of law, there is no benefit that would justify the facially discriminatory regulation.

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It also goes on to talk about the reasonable accommodation and that it is not a fundamental operation.

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In fact, reasonable accommodation anticipates that exceptions will be made to things such as

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If, for some reason, the Court believes that those positions stated by the State of California are not supported by their reading of the statute, then I would propose that those questions be certified to the California

[00:18:59] Speaker 02:
Good morning, Your Honors.

[00:19:00] Speaker 02:
Mary Christine Sanguila from the Complex Appellate Litigation Group on behalf of the city of Costa Mesa, the appellee in this case.

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This case is about local land use and the city's reasonable steps to reduce over-concentration in residential zones.

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It's not about discrimination.

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And it's not about whether the disabled are welcome in Costa Mesa.

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They are.

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cluster in a single block.

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And I wanted to turn to the facial discrimination claim first in large part because that's an important threshold issue, but also I think that's where the court's pre-argument questions were going to as well.

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And I'll go into more detail after this, but our view, the

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two questions that the court had.

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Question one about the previous pre-2014, which was, OK, are sober living homes residential service facilities or boarding houses under that regime?

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And the answer, actually, is it's not one or the other.

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It's both.

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It could be either.

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And I want to walk through the definition a little bit of the boarding house is

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that residential service facility talks about personal services in addition to housing.

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And that is sort of boarding house plus in that regard.

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And the record shows that the city would allow a cyber living home to obtain a permit as either a residential service facility or a boarding house.

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And as my friend on the other side

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that in their housing element report, that an example of a residential service facility could be a separate living home.

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But also at trial, there was testimony that Ohio House had always met the city's definition of boarding house at 22ER4939, and that separate living homes were also operating as non-permitted boarding houses through 2014.

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That's at 21ER4692.

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So we have a different answer, I think, than my friend on the other side of the aisle, but I do believe that our view and how we actually apply it is very important to a facial discrimination claim.

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I would also note that pre-2014, there was a large boarding house with

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that there are boarding houses and that there are also sober living homes that existed and were permitted and licensed prior to 2014 and they have been, for better sense of the word, grandfathered in and allowed to operate in their continued state.

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other.

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sailboat that just the question of whether there is basically you could stop before you get to benefit if you if you were to conclude that hey there you actually there is no there cannot be discrimination under the circumstance where you have

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with that interpretive question of why, I mean, there's some logic to the counter argument that why would we allow an entity to just jump categories when there is a specific and a general and the specific covers them.

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Why wouldn't that just be the category that they're in?

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Yeah, well, the definitions themselves could encompass, both encompass sober living homes and also

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They're not, they're not, it's not mutually exclusive within the code between board entities.

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Is there any regulatory history that shows us that the city has allowed entities to jump back and forth between the categories?

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Well, there is.

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I guess that doesn't answer the question.

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That shows me that these facilities are being categorized in the more specific category, which makes perfect sense.

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But if you don't have any regulatory history that you can show that, say, facilities like what is at issue here have been more broadly categorized as boarding houses and have been subject to the rules for that category.

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for Leah Trial who indicated yes, they could constitute, were treated as boarding houses under the boarding house regulations and if a sober living home wanted to submit for that, they could do so.

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and the city has thought that was permissible.

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Well, I have the testimony and the statements of Jennifer Lee from the city who testified about the history, about how they were treated historically.

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And that's what I mentioned in terms of they were prior, yes.

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Could you provide the specific sites

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So yes, so the second part of the facial discrimination analysis goes to benefit, as you mentioned, Your Honor.

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So we believe that the jury's determination on facial discrimination should be affirmed on just that threshold question under sailboat in terms of do they get some

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or worse.

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And then the second part, of course, is benefit.

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And the zoning code provides more options in the multifamily arena for the disabled than for other multiple rental home categories.

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I think it makes sense to conclude that the facilities serving the disabled have more options in the single family home zone.

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families.

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What is the benefit that they have?

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Well, the benefit they have is in terms of the number of people that they can have.

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There's in terms of limitations on the occupancy and the rented rooms.

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The boarding houses say now six people total in the house before it had to

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other things, but those clean up schedule made clear about the jury trial that what they were contesting here is the 650 foot requirement.

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That is what they put to the jury and that is what they challenged.

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In a facial challenge, don't we have to look at all of the benefits and burdens that may or may not apply?

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Yes, yes.

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You look at the overall

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that it can't do.

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Yeah, so the jury agreed with the city on this point that the separation requirement was essential, essential to prevent the institutionalization of residential neighborhoods and other adverse factors to the neighborhood itself and the residents.

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And the jury was instructed an accommodation is not reasonable if it would have required a fundamental alteration in the nature of the city's zoning scheme.

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to that and that can't be reversed except for clear error and and so in this case the question of sort of what is the core fundamental aspect of these codes and the distance requirement is really the core of both this code and really what zoning is about generally which is where can you conduct certain activities and how do you have a general plan for your

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wave the requirement, the distance requirement would amount to undermining the whole point of this particular ordinance.

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I would say particularly in this setting where I believe the record showed that there are four other homes within that 650 foot radius of Ohio House.

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So we're not just talking about one, there's a lot.

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And that was

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which was, hey, we've had so real living homes, we've always had so real living homes, that's fine, but now we have a whole lot of so real living homes, and not only a whole lot, but we have them all, we have a lot of clusters of them.

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We need to be able to manage that.

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We need to be able to balance all of the interests.

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And the city, in fact, did that when it was implementing these.

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What is the distance requirement?

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What should it be?

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How do we implement this?

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And that is what the city did.

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eliminate the distance requirement but to make the requirement of distance some amount of feet less than what the code now said.

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Is that right?

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Well that's right.

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They wanted to have it accommodate to what

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The, um, the jury concluded that this would be a fundamental alteration of the, of the Zending Code, and... It comes down to, it comes down to... Let's say that I thought the jury's statement on its face alone would be a clear, clear error.

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So I might guess my question is, what are the fundamental reasons?

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looked to many other codes and legislation including the state's legislation about residential more institutionalized drug rehab centers which have a thousand foot distance requirement and balanced that and said hey you know what in Costa Mesa in Costa Mesa specifically 650 feet it would be about one per block and and that

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us between having people here and having the homes here and having the residents here without having them overpopulate particular streets.

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And the reason there was concern about the overpopulation of several living homes in certain areas and concentration is in part because that's

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there and not what the residents had bargained for in being in separate living homes.

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They're meant to be a transition from institutionalized settings to integrating into taking, you know, responsibility and moving forward with their lives.

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And if you had a number of these all together, then you would lose that experience, which is supposed to be the purpose of the separate living homes themselves.

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And so all of that was tied up into that decision making.

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So if you start to

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then you're going to undermine the whole fundamental focus of this particular ordinance and really the fundamental purpose of zoning generally with regard to having buildings in particular places to keep, you know, to keep order and balance the interests of all of the different residents in the city.

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Thank you.

[00:36:26] Speaker 02:
Council?

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So I also, I have a sort of a separate question regarding the reasonable accommodation claim.

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Ohio House has pointed out that there's a provision of the city's reasonable accommodation ordinance that may be inconsistent with the Fair Housing Act, and that is that in assessing one of these accommodation requests, you look at whether there are other facilities available in the space, and maybe the Fair Housing Act doesn't allow that consideration.

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What I'm trying to figure out is

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the decision.

[00:37:21] Speaker 02:
Yeah, that's an interesting distinction.

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I mean, I think that that stems from, in part, from how you interpret whether, I think as Ohio's House would say, you have a particular person has sort of a right to be in a

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where it could be that my friend on the other side of the aisle would say that's not enough, that's insufficient.

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And so from that interpretation, whether it's the Fair Housing Act authority that says that, right, that in, at least in other contexts when you're talking about at an individual level as opposed to a sort of operator level, which is what this case is about, that that isn't a proper factor because it undermines the goals of the Fair Housing Act.

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So the question would be there were,

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decision, how do you look at that if that's part of the stated decision?

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And there are a lot of other reasons beyond that.

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If we were to conclude that that factor is not valid, what do we do with that?

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Yeah, so I think that there are independent, there are factors independent of that that could, that would support the reasonable company

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So those were the two main points I wanted to cover, and my time is ending anyway.

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So if you have any questions, I'm happy to answer.

[00:39:50] Speaker 01:
administrators said they don't exist.

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Second, regarding the mixing of the uses, boardinghouse and group home, it was never the case that that appears in any of the records.

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If you look at the way the city published what its FAQ was regarding house, regarding group homes, you'll find that in ER 5575.

[00:40:11] Speaker 01:
It doesn't make any mention

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We'll provide it to the court that we have separate definitions for those.

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I would say this, though, about the facial versus the as-applied.

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to a group of people, and this being a very unique situation where we don't have to look at boarding houses at all.

[00:42:13] Speaker 01:
Rather, let's look at the perfect application of we have 26 people before the treatment called 3-2-3 is applied.

[00:42:22] Speaker 01:
I have no further questions.

[00:42:26] Speaker 01:
I want to thank you.

[00:42:28] Speaker 01:
Thank you very much for your time.

[00:42:30] Speaker 01:
Thank you, Your Honor.

[00:42:31] Speaker 03:
All right.

[00:42:31] Speaker 03:
Thank you, Counsel, for your arguments and helpful arguments in this case.