BILL ANALYSIS
SENATE JUDICIARY COMMITTEE S
Charles M. Calderon, Chairman B
1995-96 Regular Session
2
0
9
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SB 2097
Senator Haynes
As amended on April 10, 1996
Hearing Date: April 23, 1996
Civil Code and Business and Professions Code
GEH:cb
unruh civil rights act
senior citizen housing developments
HISTORY
Source: Senior Citizens' Housing Protection Committee of
the City of Hemet
Related Pending Legislation: SB 1585 (Craven); AB 2646
(Granlund)
Prior Judiciary Committee Action:
This bill was heard at length in this committee on April
16th. A number of amendments were discussed at the
hearing, and as a result, the bill was put over. This
analysis reflects the following author's amendments to be
offered in committee:
1.The amendments impose a flat 15 unit minimum for all
senior citizen housing developments, instead of deleting
altogether the 35, 70, 100, and 150 unit minimums in
present law.
2.The amendments delete the provision that would have
expanded the definition of "qualified permanent resident"
and retain the present definition, except that disabled
or terminally ill adult children of senior citizen
residents are added to the definition.
3.The amendments limit the bill's " grandfathering"
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provision, so that it applies only to developments that
are out of compliance as a result of actions taken
pursuant to actual or potential litigation or agency
action.
4.The amendments apply the senior housing provisions of the
Unruh Civil Rights Act, as amended by this bill, to
resident-owned mobilehome developments.
5.The amendments delete the provision related to local
zoning ordinances approving senior housing.
6. The amendments make the technical and clarifying changes
suggested in the analysis prepared for the April 16th
hearing.
ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN
COMMITTEE
KEY ISSUES
1. generally, should the present restrictions on
establishing senior citizen housing developments be
substantially relaxed?
2. specifically, should these restrictions be relaxed in the
following ways:
a. should the requirement that senior developments "be
designed to meet the physical and social NEEDS of
senior citizens" be repealed?
B. should the MINIMUM size requirements of 35 to 150
units for 55 and over senior developments be reduced
to a flat 15 unit minimum?
c. should disabled or terminally ill adult children of
senior residents be added to the definition of
"qualified permanent residents" (persons under 55 who
may live in senior citizen housing developments)?
D. should senior developments which have failed to
meet the occupancy requirements of present law as a
result of actual or potential ltiigation or agency
action, be deemed to be legal if they comply with
those occupancy requirements for vacancies occurring
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after the effective date of this bill?
3. should the senior housing provisions of the Unruh Civil
Rights Act, as amended by this bill, be applied to
resident-owned mobilehome developments?
PURPOSE
The purpose of this bill is to make it easier to develop
new, and preserve existing, senior housing developments.
Existing state law: The Unruh Civil Rights Act (Civil Code
?51 et. seq.), prohibits arbitrary discrimination by
business establishments. In Marina Point, Ltd. v. Wolfson
(1982) 30 Cal.3d 72 and O'Connor v. Village Green Owners
Assn (1983) 33 Cal.3d 790, the California Supreme Court
held that the Unruh Act covered discrimination on the basis
of age and that it therefore prohibited apartments and
condominium developments, respectively, from excluding
families with children. In Marina Point, the Court
suggested in dicta that its holding was not intended to
prohibit seniors-only developments:
"In light of the public policy reflected. . . [by
the Unruh Act], age qualifications as to a
housing facility reserved for older citizens can
operate as a reasonable and permissible means
under the Unruh Act of establishing and
preserving specialized facilities for those
particularly in need of such services or
environment. Such a specialized institution
designed to meet a social need differs
fundamentally from the wholesale exclusion of
children from an apartment complex otherwise open
to the general public."
In 1984, the Legislature enacted two bills designed to
codify this dicta in Marina Point, AB 3909 (Davis) and SB
1553 (Boatwright), which added sections 51.2 and 51.3,
respectively, to the Unruh Act.
Section 51.2 affirms that the general prohibition against
arbitrary discrimination in ?51 prohibits discriminating in
the sale or rental of housing based on age. It also states
that " where accommodations are designed to meet the
physical and social needs of senior citizens, those
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accommodations can exclude non-senior citizens, as provided
in ?51.3, unless preempted by federal law (discussed
below).
Section 51.3 declares that its purpose is to establish and
preserve "specially designed accessible housing" for senior
citizens, and sets forth the below-described specific
requirements for senior citizen housing developments.
Under these two sections, senior developments may exclude
non-seniors without illegally discriminating on the basis
of age, if they are not otherwise prohibited from doing so
by federal law (see below) and the following requirements
are observed:
1)The development is designed to meet the physical and
social needs of seniors, and is either developed for, and
initially put to use as, housing for senior citizens or
substantially rehabilitated or renovated for, and
immediately afterward put to use as, housing for senior
citizens.
2)At least one person living in each dwelling unit must be
a "qualifying resident" or "senior citizen". That is,
they must be either 62 years or older, or a person 55
years or older in a "senior citizen housing development."
A " senior citizen housing development" is a residential
development for senior citizens that is of a certain
size, depending upon what type of metropolitan area it is
in. If it is in a metropolitan area with more than 1
million people, or which has a population of at least
1,000 residents per square mile, it must have 70 units
built prior to January 1, 1996 or at least 150 dwelling
units built on or after that date. If it is in a metro
area with a population of more than 400,000 residents or
less density than the first category, it must have 100
units. If it is any other area, it must have 35 units.
3)Each other person in each dwelling unit must be either a
"qualified permanent resident" or a "permitted health
care resident."
A "qualified permanent resident" is a person who was
residing with the senior citizen and the senior citizen
then dies, undergoes a prolonged absence, or divorces
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that person; and who is either over the age of 45, or was
the senior citizen's spouse, cohabitant or primary
provider of economic or physical support; and who has an
ownership interest in the unit or an expectancy of an
ownership interest.
A "permitted health care resident" is a person hired to
provide live-in, long-term, or terminal health care to a
qualifying resident.
Section 51.4 of the Civil Code declares that sections 51.2
and 51.3 are more stringent than federal law (see below)
and provides for an exemption from the special design
requirements for senior housing built prior to 1982.
Under present law, mobilehomes are excluded from the
definition of "dwelling unit" and "housing" in ?51.3, and
as a result, "seniors-only" mobilehome parks and
resident-owned mobilehome developments are governed only by
the Mobilehome Residency Law (MRL). See comment 3.
Existing federal law: Before 1988, the federal housing
discrimination statute, Title VIII of the Civil Rights Act
of 1968, did not prohibit age discrimination. In the Fair
Housing Amendments Act of 1988 (FHAA), Congress made it
generally unlawful to discriminate in the sale or rental of
housing on the basis of "familial status." However, like
the Unruh Civil Rights Act, the FHAA contains an exemption
for housing for older persons.
Under the FHAA, a housing facility may discriminate on the
basis of age if they are intended and operated for
occupancy by persons 62 and older, if at least 80 percent
of the occupied units are occupied by at least one person
who is 62 years old and the housing facility publishes and
adheres to policies and procedures that demonstrate the
intent to be operated for occupancy by persons 62 years and
older.
For housing facilities operated for occupancy by persons 55
and older, there was one more requirement, in addition to
the ones applicable to 62 and older parks. Such
facilitites were required to provide "significant
facilities and services specifically designed to meet the
physical or social needs of older persons", unless the
provisions of such significant facilities and services is
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not practicable and it is necessary to provide important
housing opportunities for older persons. Four months ago,
President Clinton signed H.R. 660, which repealed this
requirement that 55 and over housing facilities provide
significant facilities and services specifically designed
to meet the needs of older persons. (Public Law 104-76).
This bill repeals, and then reenacts, sections 51.2, 51.3
of the Civil Code, and repeals Section 51.4 of the Civil
Code because it is made unnecessary by the new language in
the reenacted sections. The reenacted sections 51.2 and
51.3 make the following changes to present law:
The reenacted sections omit all prior references to the
requirement that developments be designed to meet the
physical and social needs of senior citizens, or be
"specially designed accessible housing" or that they have
been developed specifically for, or rehabilitated
specifically for, seniors.
The reenacted sections change the definition of "senior
citizen housing development" to replace all of the
different minimum size requirements depending upon the
size of the metropolitan area and when the development is
constructed, with one flat minimum size requirement of 15
units.
Under the new definition, a "senior citizen housing
development" is a residential development with at least
15 units which is: developed as a senior community by its
developer; or zoned as a senior community by a local
governmental entity; or characterized as a senior
community in its governing documents pursuant to common
interest development law; or qualified as a senior
community under the FHAA.
The reenacted sections add a new category of person to the
definition of " qualified permanent resident:" a
permanently physically or mentally impaired or terminally
ill adult dependent child of the senior citizen or other
qualified permanent resident. The bill allows a
development's governing body to determine that there are
special circumstances to disallow such a person as a
qualified permanent resident. "Special circumstances"
means that the individual is, or may be, harmful to
himself or herself or others.
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The reenacted sections provide that if a senior housing
development has been out of compliance with the
requirement that each unit be occupied by a permanent
resident or senior citizen and that all other residents
be qualified permanent residents or permitted health care
residents, it can legally remain a seniors-only
development, provided that it :
1) Complies with these occupancy requirements for all
units that are vacated after the effective date of
this bill; AND
2) Was once in compliance with these occupancy
requirements, and then allowed non-qualifying persons
to occupy units either because it was ordered to do so
by a court or agency, or did so in order to avoid
potential litigation or agency action.
The reenacted sections delete the blanket exclusion of
mobilehomes from the definition of "dwelling unit" and
"housing" in ? 51.3. Instead, the bill provides that
only mobilehomes in "mobilehome parks" are excluded from
the definition, and that resident-owned mobilehome
developments are included. The bill also repeals the
reference to senior-only resident-owned mobilehome
developments in the MRL, Civil Code ?799.5.
COMMENT
1. Generally, should the present restrictions on
establishing senior citizen housing developments be
substantially relaxed?
a) Proponents' arguments
According to the form letter which the committee
has received from 150 seniors from the author's
district, this bill "was written by and for low- and
middle-income seniors living in seniors-only
communities. "The letter also states:
"You can help save my seniors-only community,
the place I have lived in for years, the only
place I have to live.... The threat of losing
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our way of life under the present law is
extremely stressful. SB 2097 will remove that
stress so we may look forward to longer,
healthier and more independent lives."
Riverside County Supervisor Supervisor Kay
Ceniceros, whose district consists of a large number
of retirement communities, has submitted extensive
written testimony in support of this bill. Supervisor
Ceniceros argues that the requirements on seniors-only
housing need to be relaxed in the manner proposed by
this bill because such developments provide 5
important benefits to seniors:
1) Safety. The presence of children and their
bicycles and skateboards increases the chance of
fragile seniors falling and getting permanently
crippled. Senior developments' lower crime rates
and increased sense of community also enhances
safety for seniors.
2) Health issues. What Supervisor Ceniceros
characterizes as "a sense of neighborliness" among
senior residents can provide the care and
attention that otherwise could only be provided in
a more expensive convalescent hospital or other
institution. Concentrations of seniors can create
economies of scale, allowing off-site specialized
services like adult day care centers,
medi-transportation, hospice care, etc. to be
readily available.
3) Physical stability. Many seniors are
sensitive to frequent change and stability in
their personal life prolongs life: "The hub bub
of a younger working generation is physically
tiring to those who experience reduced vitality,
poor hearing, or the stress of failing health."
4) Economic stability. Most age-restrictive
housing is less expensive both to purchase and to
maintain, then the family homes seniors had when
they were younger. If a senior development loses
its senior-only status because of non-compliance
with present law, many seniors feel the need to
move to another senior-only community, causing
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great economic hardship.
5) Stimulation and recreation. Many healthy
and vital seniors choose to live in seniors-only
communities as well. Studies show that
stimulating physical and mental activities at
appropriate levels can prolong physical and mental
health. Many vigorous seniors are also planning
for a less vigorous future.
b) Opponents' arguments
The National Center for Youth Law (NCYL) opposes
this bill because it will increase discrimination
against families with children:
The effect of SB 2097 is to expand the
segment of the housing market that may
legally exclude households solely because
they have children. The proponents of SB
2097 have not submitted any evidence
justifying additional requirements on
families' access to housing. Indeed,
existing evidence suggests that families
still have grave difficulty in obtaining
decent and affordable housing.
The Northern California Coalition For Fair Housing
argues that the existing statutory scheme provides an
appropriate balance between the needs of seniors and
families, and that this bill's provisions would upset
that balance at the expense of families needing
affordable housing.
2. Specifically, should these restrictions be relaxed in the
following ways:
a) Should the requirement that senior developments "
be designed to meet the physical and social needs of
senior citizens" be repealed?
The original concept behind these seniors-only
housing statutes was that a development should be able
to exclude families if (and only if) the development
meets a specific need of the senior citizen community
that could only be served by limiting the development
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to seniors. When it enacted the FHAA four years after
California enacted its statutes, Congress concurred
with this approach and adopted a similar "significant
facilities and services" requirement.
After the passage of the state and federal
statutes, state and federal courts adopted restrictive
interpretations of these special design requirements.
A California court held that the special design
features should include "more and wider walkways with
fewer stairs, an interior and exterior design to
permit easy social contact, provision for common
rooms, short distances between buildings, easy refuse
collection, light maintenance and well-lighted
walkways and halls." Bliler v. Covenant Control
Committee 205 Cal.App.3d 18. Another court noted the
importance of the development's small one-story units
that required no yard work and the fact that units
were grouped around extensive communcal recreational
and educational facilities. Huntington Landmark Adult
Community Ass'n v. Ross (1989) 213 Cal.App.3d 1012.
See also Park Redlands Covenant Control Committee v.
Simon (1986) 181 Cal.App.3d 87.
Federal courts seemed to be even more restrictive
in their interpretation, holding that "a housing
provider must offer its tenants a package of
facilities and services that indicates a genuine
commitment to serving the
special needs of older persons", and that a
development's proximity to extensive off-site
senior-serving facilities could not substutitute for
the development having some special on-site
senior-serving facilities. Park Place Home Brokers v.
Park Mobilehome Park (N.D. Ohio 1991) 773 F.Supp. 46.
See also Lanier v. Fairfield Communities (M.D. Fla.
1990) 776 F.Supp. 1533 ; HUD v. Murphy (July 13, 1990)
Fair Hous. fair Lend. para. 25,002 at 25,004 (decision
by HUD administrative law judge).
As a result of these restrictive interpretations,
HUD proposed some draft regulations in 1994 specifying
in detail the different features and amendities
required of senior citizen housing developments.
Thousands of seniors expressed their concern that the
requirement would force seniors-only housing to close
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throughout the country. Many seniors were offended by
what they perceived to be the regulations' assumption
that all seniors required nursing home-like
facilities.
The final version of the regulations were finally
issued in September of 1995. Although the final
regulations were much less burdensome, by the time
they were issued, there was significant momentum to
repeal the "significant facilities and services"
requirement altogether, which was accomplished by the
beginning of December when president Clinton signed
H.R. 66. The proponents of this bill believe that
California should follow suit.
The opponents argue that the original concept
underlying the special design requirement retains its
vitality, and that removing the requirement promotes
invidious discrimination against families. The
opponents point out that California's special design
requirement is independent of federal law, and that
federal law specifically allows states to enact more
stringent requirements on senior housing (42 U.S.C.
?3615).
b) Should the minimum size requirements for 55 and
over senior developments be significantly reduced?
The minimum size requirements in the definition of
55 and over "senior citizen housing developments" were
imposed for a similar reason as the special design
requirements. The likelihood of a development
providing specific benefits to seniors is increased if
it is large enough to acheive the "economies of
scale", and the "sense of neighborliness" discussed in
Supervisor Ceniceros' testimony.
The size requirements in existing law vary by type
of metropolitan area in order to reflect the economic
realities of the types of developments that could be
sustained in different population centers. These
varying size requirements have been amended several
times, most recently last year in SB 332 (Campbell).
At this point, they are quite byzantine, and
bureaucratic. As a result, the author originally
proposed to eliminate the minimum size requirements
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altogether, noting that federal law contains no such
requirement.
At the April 16th hearing, opponents, and committee
members expressed concern that allowing a development
with two or four units to call itself a "senior
community" would make it too easy for any landlord or
developer to exclude families with children. As a
result, the author has amended the bvill to require a
minimum of 15 units.
The opponents argue that, given the fact that SB
332 reduced the requirement for most urban areas to 70
units for existing developments just last year, it is
inappropriate to make any further reduction, let alone
one as significant as going down to 15 units. Under
current law, the smallest a development can be is 35
units, in rural areas.
should the proposed minimum unit figure be 15, or
should it instead be a greater number?
c) Should the definition of "qualified permanent
residents" be expanded to include disabled or
terminally ill adult children of senior residents?
At the April 16th, hearing this committee
unanimously passed SB 1624 (Craven), which would enact
a similar provision in seniors-only mobilehome parks.
That bill's language is broader than this bill's --
applying to close relatives other than children, and
applying to any such relative who a doctor determined
needed the care or supervision of the senior resident.
Unlike SB 1624, however, this bill would allow the
governing body of the development (generally, the
homeowner association's board of directors) to
determine that particular individuals do not qualify
under this provision if the individual is or may be
harmful to self or others. The Northern California
Fair Housing Coalition has expressed reservations
about granting this type of discretion to a board of
directors.
d) Should senior developments which lost their
seniors-only status as a result of actual or potential
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litigation or agency action be grandfathered into this
new law?
According to the bill's sponsors, the Senior
Citizens' Housing Protection Committee of the City of
Hemet, this provision is necessary because:
"Numerous seniors-only housing developments
lost their 55+ status due to the previous
federal requirement for facilities and
services. During their loss of status,
underage families moved in. This amendment
would allow such communities to regain their
former status even though they cannot satisfy
the state 100 percent occupancy rule."
The Northern California Fair Housing Coalition has
expressed conceptual support for this concept, because
it removes any incentive that fomer seniors-only
developments may have to evict the families that moved
in after the development lost its seniors-only status.
It indicates that the language implementing this
concept may be too broad. Other opponents, Fair
Housing of Marin and Sentinel Fair Housing have
written the committee specifically to urge that
"housing providers should not be allowed to convert to
seniors-only housing unless they meet the occupancy
and minimum size requirements on January 1, 1997.
3. Should the senior housing provisions of the Unruh
Civil Rights Act, as amended by this bill, be applied
to resident-owned mobilehome developments?
The typical situation in mobilehome parks is that
residents own their own mobilehomes, but rent space in
the park, which is owned by the parkowners. This
provision relates to parks which do not follow this
model, commonly called "resident-owned" mobilehome
developments. In this situation, the residents of the
park own both their mobilehome and the park itself.
There are many different variants of this arrangement,
including cooperatives, condominiums, and
subdivisions.
Last year, the Legislature enacted SB 110 (Craven),
which was designed to clarify that the relationships
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between the management and mobilehome owners in a
resident-owned mobilehome development is governed by
regular common interest development law (The
Davis-Stirling Act), rather than by the MRL. However,
that bill retained the provision in existing law that
provides that resident-owned mobilehome developments,
like regular mobilehome parks, may impose age
restrictions to the extent allowable under the federal
FHAA (?799.5 and ?798.76) Together those sections
exempt all mobilehomes from the senior housing
provisions of the Unruh Civil Rights Act. See Schmidt
v. Superior Court (Valley Mobile Park Investments)
(1989) 48 Cal.3d 370; Colony Cove Associates v. Brown
(1990) 220 Cal.App.3d 195.
At the April 16th hearing, there was considerable
confusion about the bill's intended, and actual,
impact on mobilehomes. At the conclusion of the
hearing, the author appeared to indicate he would
amend his bill to retain present law. However, the
author and his sponsor have subsequently decided to
ask the committee to consider changing present law by
applying the Unruh Civil Rights Act, as amended by
this bill, to resident-owned mobilehome developments.
This sponsors acknowledge that it seems odd for
them to want to impose the more cumbersome
requirements of state law (even after they simplify
it) to any seniors only development that presently
must only comply with the 80 percent occupancy
requirements of federal law. However, the sponsors
state that the board of resident-owned mobilehome
developments in the Hemet area believe that the 100
percent requirement of state law is easier to enforce,
and think that it is only logical that they should be
treated like all other common interest developments.
The Golden State Mobilehome Owners League (GSMOL)
is opposed to this provision because it believes
resident-owned mobilehome subdivision should have the
flexibility to impose any requirement allowable under
federal law.
Support: Senior Citizens' Housing Protection
Committee of the City of Hemet; Riverside
County Supervisor Kay Ceniceros; 149 form
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support letters from individuals and couples
from Hemet and Sun City; 1 non-form support
letter from an individual from Sun City
Opposition: National Center for Youth Law; Northern
California Fair Housing Coalition; Sentinel
Fair Housing; Fair Housing of Marin; Golden
State Mobilehome Owners League
Prior Legislation: SB 1553 (1984) (Chapter 1333)
AB 3909(1984) (Chapter 787)
SB 758 (1985) (Chapter 1505)
SB 1686 (1989) (Chapter 190)
AB 1429 (1989) (Chapter 501)
AB 125 (1991) (Chapter 59)
SB 137 (1993) (Chapter 830)
SB 1560 (1994) (Chapter 464)
SB 332 (1995) (Chapter 147)
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