Newport gets support with group home law

Two of Newport Beach’s neighboring cities have pledged their support as it gears up to petition the U.S. Supreme Court for a hearing on its group home law.

Laguna Beach and Costa Mesa have promised to contribute funding toward the costs of filing amicus briefs, which are written arguments submitted by independent organizations, often in favor of the petitioner.

In Newport’s case, the briefs are intended to sway the court to hear the case.

Newport Beach plans to submit its petition to the Supreme Court by Aug. 18, asking the justices to reverse a 9th Circuit Court of Appeals ruling that said a Newport Beach ordinance governing group homes could be challenged for discriminatory intent.

At least three groups — the International Municipal Lawyers Assn., the League of California Cities and the Pacific Legal Foundation — are then expected to submit amicus briefs, said City Atty. Aaron Harp.

Each brief will cost roughly $30,000 to cover attorney fees and printing expenses, Harp said. He anticipated that much of the attorney time would be donated and that the three groups would take on some costs.

So far, Costa Mesa and Laguna Beach each pledged $10,000 toward the costs. The city of Claremont said Newport Beach could use its name in support but did not give money, Harp said.

“The decision of the 9th Circuit impacts all cities,” he said, “and they’re interested in supporting our challenge to that ruling.”

Newport Beach also spent $280,000 to hire prominent attorney Theodore Olson to work on its petition.

The case centers on a municipal law adopted in January 2008 that placed strict limits on group homes, an issue with which many other cities have wrestled.

Group homes had previously been operating freely in residential areas, according to court documents. The ordinance effectively prohibited new group homes from opening in most residential areas and required existing group homes to complete the same permitting process required of new ones.

The total number of facilities in a neighborhood is taken into account during the permitting process, the documents continue.

Newport Beach residents had been complaining about traffic issues, cigarette smoke and noise caused by their ever-changing cast of neighbors. But the new rules forced out many of the group homes because they could not qualify for the newly required permits.

In the ongoing legal battle that ensued, a three-person panel of 9th Circuit Court of Appeals said last fall that the ordinance may have illegally discriminated against group homes for recovering alcoholics and drug users based on disability.

But other 9th Circuit judges — although unable to find enough support to rehear the case — wrote a different opinion. They maintained that the panel’s decision inappropriately allowed a neutral law that was fairly enforced to be challenged based on an accusation of ill intent.

The city agreed, and felt prompted to petition the Supreme Court.

“Until this decision, the rule has been that if a city adopts a neutral law that treats people the same and is fairly enforced, like the city’s ordinance, you don’t get to file a lawsuit to try and find out what the City Council was thinking at the time they adopted the law,” Harp explained in an email.

“This is a fundamental shift in the law and we hope that the United States Supreme Court will take this case to ensure that local governments can continue to operate efficiently without bearing the burden and expense of frivolous lawsuits,” he said.

Group home operators Pacific Shores Properties, Newport Coast Recovery and Yellowstone Women’s First Step House can file responses to the petition after the amicus briefs are submitted. The group homes are being represented by the Loma Mar-based firm Brancart & Brancart.

The firm will evaluate an appropriate response as the time nears, Elizabeth Brancart said.

A decision on whether the case will be heard is expected by the end of the year, Harp said. If it is not heard, the case will return to trial.