San Jose upholds earlier occupancy increases

Commission does not reconsider Feb. 27 decisions

By Kate Carter

Residents near two substance abuse recovery homes, one in Willow Glen, received a scare at the March 13 San Jose Planning Commission meeting when the commission was asked to reconsider decisions made last month.

The commission, however, approved a resolution for each home upholding and detailing reasons for its original decisions. The decision is final and can only be challenged through legal means.

Jeffrey Janoff, attorney for the recovery homes' operator, Rainbow Recovery, submitted a letter to the planning department March 6 asking the commission to review its decision to grant the homes a less-than-requested increase in occupants. The home at 2990 Kilo Ave. in Willow Glen was granted an increase to 10 residents instead of the requested 17; the home at 6136 Meridian Ave. was granted an increase to 12 residents instead of the requested 18.

Homes in single-family residential districts can house up to six unrelated individuals. To house more than that, homes that house disabled people can submit requests for reasonable accommodation up to the number of people allowed by building and housing codes in the homes. Individuals in recovery from substance abuse are considered disabled.

For a city to deny reasonable accommodation up to the permitted amount of residents, it must show that the increase would create an undue financial burden to the city or cause an impact on the neighborhood that would change its single-family residential character, beyond what a home housing that number of related individuals would cause.

In its decision Feb. 27, the commission granted the two homes increases smaller than those permitted by building and housing codes, and cited testimony by residents that the houses were too small and that Rainbow Recovery couldn't appropriately manage increases of the size it requested.

Janoff, in his request for reconsideration, stated that questions of Rainbow Recovery's operation cannot be considered by the commission to make land-use decisions. "The question of whether or not the program can function properly with 18 residents is an issue for the [District Attorney's office] certification process, not the Planning Commission."

Janoff also raised concerns during the public testimony period of the commission's consideration of each resolution.

"The findings are inconsistent," he said of the reasons stated in the resolution regarding the decision for the Meridian Avenue home. "There's no finding in this resolution about how the number of residents would fundamentally alter the character of the neighborhood."

The commission, though, with support from planning department staff, upheld its original decisions. It also pointed out that requests for reconsideration of an item it passed can only be moved and seconded by commission members who voted in support of it. A majority of the commission must also support a reconsideration.

None of that happened March 13, and so the reconsideration did not take place.

Janoff later said he is in the process of drafting a lawsuit against the city and the commission, challenging the decisions. He also added that he is now representing Rainbow Recovery on a "pro-bono basis, because I feel so strongly that a wrong has been done."

Neighborhood representative Greg Misakian, however, said the community is still challenging Rainbow Recovery's ability to legally operate at all. He said the group is continuing its research into the business' certification and licensing requirements, and added that the planning commission should consider those requirements when making decisions about the homes' occupancies.

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