No action is required of council at this time. However, staff requests direction from council regarding the following:
1. Whether to develop proposed ordinances that would limit the number of unrelated persons permitted to live in a single household and provide a process for reasonable accommodations for those with disabilities as required by state and federal law.
2. Whether to retain the services of an expert in the field of zoning compliance as it relates to compliance with state and federal housing, and anti-discrimination laws related to fair housing. 

The Billings City Council adopted strategies and priorities that included the following: Collect data and pursue legislation and local regulations to limit the number, and improve the effectiveness of, sober living housing and their impacts on neighborhoods. 

Beginning in 2021, staff commenced gathering information related to sober living homes. Information was gathered by the Billings Police Department, Code Enforcement, Planning and Zoning, Finance, and the City Attorney's Office. Information was gathered from crime statistics, business licensing records, the State of Montana's Probation and Parole department (both statewide and Region IV), sober home living operators, and residents of sober home living facilities. In particular, the approaches of the State of Tennessee and the City of Delray Beach, Florida were studied.

Concerns about sober living homes that have been expressed to council focused upon on-street parking, the number of occupants in a single house, perceived potential of increased crime in the area, and other code enforcement issues.

Staff previously addressed council concerns regarding sober living homes by a memo dated June 17, 2019, which is attached to this staff memo. The content of that memorandum remains accurate, save and except for a subsequent change to the definition of dwelling unit and family in BMCC 23-201 to remove the express requirement of two (2) persons per bedroom. The advice given in that memo remains sound. The City may not enact a regulatory scheme specific to sober living houses as it has to massage businesses and marijuana business without running afoul of the Fair Housing Act and the Americans with Disabilities Act.

CURRENT STATUS OF SOBER LIVING HOUSES IN THE CITY OF BILLINGS

Because the State of Montana does not regulate sober living homes, data available to the City derives primarily from the business tax licenses issued by the City, and from the Department of Corrections, Region IV which monitors offenders under its supervision. The City recently participated in a discussion before the Criminal Justice Oversight Council regarding the state of sober living homes in the City, which may be found using the following link: http://sg001-harmony.sliq.net/00309/Harmony/en/PowerBrowser/PowerBrowserV2/20220323/-1/44106 . Currently, approximately 37 sober living homes operate within city limits: all but 10 of the homes have a city license.

Sober living homes do not appear to increase crime in their vicinity however data collection continues in this area. Although some former residents have been implicated in criminal acts within the city, those acts generally did not occur in the area surrounding the sober living home. Those persons alleged to have been involved in the criminal acts were under the supervision of the State of Montana's probation and parole, Region IV.

Significant numbers of supervised offenders reside in sober living homes at some point. For the combined years of 2020 and 2021, Region IV supervised 3,853 offenders, and 507 of those offenders lived in a sober living house at least part of that time. Anecdotal information received indicates that DOC-supervised residents in sober living homes turn over faster than unsupervised residents. This may correlate with the fact that paroled offenders receive up to three months of housing support upon release.

The more transient nature of sober living residents could explain why the percentages differ significant when analyzing a specific date, as opposed to an extended period of time such as 2020-2021. As of May 25, 2022, Region IV supervised approximately 2,487 offenders, 159 of whom resided in sober living, and of whom approximately 49 were violent offenders.

Sober living houses offer offenders affordable housing with lower entry costs in a very tight housing market (low or no housing deposit, no utility deposits, no credit check). The State of Montana, like Tennessee, could require that state funding be used only for accredited facilities.

TENNESSEE

Tennessee's state law operates on a carrot and stick approach, limiting their Department of Corrections and state funding agencies from spending public funds on recovery resdiences that are not licensed or accredited, and referring judges to a disciplinary committee for referring offenders to recovery residences that are not licensed or accredited. Because the City does not fund sober living homes or recovery residences, nor have control over the actions of any judge, Tennessee's approach will not work for the City. This council, however, may work with state officials here in Montana to implement similar measures.

CITY OF DELRAY BEACH, FLORIDA

The City could utilize the approach of the City of Delray Beach, however, but only with substantive changes to city code. State and federal law considers sober living house residents to be disabled persons. Only neutral city ordinances that apply to everyone may be applied to sober living homes. Even then, the city must offer reasonable accommodations for disabled residents, but these reasonable accommodations would not be available to non-disabled residents.

The City of Delray Beach caps the number of unrelated people in a single household at 3. Similarly, the City of Bozeman caps the number of unrelated people in a single household at 3. Currently, Billings permits any number of unrelated or related people to reside in a single, not-for-profit housekeeping unit sharing one common kitchen. The restriction of two (2) adult persons per bedroom ostensibly applies only to for-profit housekeeping units. Under the current city code provisions, a non-profit sober living home may house an unlimited number of unrelated persons, as long as those individuals are living together in a single, not-for-profit housekeeping unit sharing one common kitchen. 

The City of Delray Beach's approach works only if the city council caps the number of unrelated people who may live in a dwelling unit as a family. The City of Delray Beach readily grants reasonable accommodations for sober living homes and other community residences that have relatively low resident turnover, and not more than 10 residents. As a condition of receiving a reasonable accommodation, the community residence must have a state license, if one is available for a specific type of residence, and the residence must be a rationally spaced distance from any other existing community residence. The City of Delray Beach does not require a hearing or a conditional use permit for these residences.

For a community residence with a higher turnover (deemed transitional), the City of Delray Beach requires that the residence obtain and maintain a state license or industry accreditation, be rationally spaced apart, and be subject to a conditional use permit process if they wish to locate in single-family zoning. Likewise, the residences that request a reasonable accommodation for the purpose of housing more than 10 persons are subject to a conditional use permit process, and also bear the burden of demonstrating that they are capable of functioning as a single housekeeping unit, given the large number of residents.

A benefit of the City of Delray Beach's approach is the reliance on either state licensing or industry accreditation to oversee the internal operations of the community residences, as opposed to regulating the operations of the community residences/sober living homes, which would surely run afoul of Montana state law, the federal Fair Housing Act, and the Americans with Disabilities Act.

The burden of reviewing such requests for reasonable accommodations would fall squarely upon the City's Planning and Zoning division, because the reasonable accommodation process would function much like any other zoning variance request. Any sober living home in excess of an adopted cap on unrelated people would be subject to an application process for a reasonable accommodation. The complexity of this process would depend upon the number of residents, whether the population is transitional in nature, whether state licensing (if available) or industry accreditation has been obtained, the proximity to another community residence, or any other unique factors that may warrant further review.

In weighing the policy considerations implicated by imposing a cap on the number of unrelated persons in a household, due consideration to the ability to enforce such a cap should be considered. For all practical purposes, enforcing such a cap would be impossible and intrusive for the average household. 

However, because of the large number of supervised persons living in residences deemed sober living houses, and given the availability of data from the State of Montana, the City would have the ability to identify locations where more than three offenders (presumed to be unrelated) reside.

On the matter of community crime, any increase in crime related to residents of sober living homes appears to mostly occur outside the vicinity of the homes. As long as the Department of Corrections continues to release offenders into the Billings community, crime in the community will increase, regardless of the location in which offenders reside.

Because of the intricate intersection of the Fair Housing Act, the Americans With Disabilities Act, and the federal and state constitutions, regulation of sober living homes, and community residences in general, has led to a proliferation of litigation. The City of Bozeman and the City of Kalispell both have been sued related to their zoning treatment of community residences, as has the City of Delray Beach, Florida. Attached to this memorandum are two articles by Daniel Lauber, an expert in the field of zoning community residential facilities. Mr. Lauber served as the principal author of the City of Billings' Analysis of Impediments to Fair Housing Choice, 2012. Given the complexity of zoning regulations that impact community residential facilities, the City Council may wish to direct staff to retain an expert to provide further analysis and direction.


 

• Property owners-limiting the number of unrelated people who may reside in a single household impacts the bundle of rights that property owners currently enjoy, both in terms of their own use, and in their ability to rent their property to others. 
• Residents-Residents who currently share housing with unrelated people will be restricted in their ability to find housing in an already tight market.
• Sober living home operators-Sober living home operators could obtain waivers of household caps through an administrative process, but will have some administrative burdens connected related to their participation in the reasonable accommodation collaborative process
• Residents of sober living homes-residents of sober living homes have a vested interest in residing in safe, affordable housing, protected from exploitation.
• Neighbors of sober living homes-When enacting or applying zoning or land use laws, local governments may not act because of the fears, prejudices, stereotypes, or unsubstantiated assumptions that community members may have about current or prospective residents because of the residents' protected characteristics. Doing so violates the Fair Housing Act, even if the officials themselves do not personally share such bias. See the attached Joint Statement of the Department of Housing and Urban Development and th Department of Justice, State and Local Land Use Laws and Practices and the Application of the Fair Housing Act.

Staff seeks direction from council regarding whether to develop proposed ordinances that limit the numbers of unrelated persons residing in a single household that will apply to all property owners, regardless of whether such a property is owner-occupied, a rental property, or a sober living home.

The City may not impose undue burdens on operators of sober living homes to seek reasonable accommodations for resident disabilities. As such, the collection of any offsetting fees should not be anticipated. Ongoing costs would include staff time for processing requests for reasonable accommodations. The initial costs of drafting such ordinances will include significant staff time for Planning and Zoning, as well as the City Attorney's Office.