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HomeMy WebLinkAbout685ORDINANCE NO. 685 AN URGENCY INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE, CALIFORNIA, TEMPORARILY PROHIBITING THE ESTABLISHMENT AND OPERATION OF PROBATION FACILITIES NEAR CHILD-CENTRIC LOCATIONS PENDING COMPLETION OF STUDIES AND THE PREPARATION OF AN UPDATE TO THE CITY'S ZONING CODE WHEREAS, the City of Irwindale ("City") is home to a concentrated residential community as well as home to a large business community with childcare programs, there are many locations within the City where children frequently assemble, play or gather ("child-centric sites"); and WHEREAS, the Irwindale Municipal Code ("IMC"), including the Irwindale Zoning Code, currently lacks the ability to regulate probation facilities, generally, and specifically lacks authority to regulate probation facilities that (1) supervise convicted felons that have demonstrated a high level of recidivism as a class, including but not limited to persons who are required to register under California Penal Code section 290 et seq. ("registered sex offenders" or "290s") and/or (2) will be located near "child- centric sites"; and WHEREAS, the City has received an inquiry from a potential operator regarding the possibility of establishing a probation facility within the jurisdictional boundaries of the City; and WHEREAS, the operator has identified a proposed location for this probation facility that is located approximately 160 feet from a public charter school known as "Options for Youth," a facility that works with children in grades 7-12; and WHEREAS, the proposed location is within close proximity to public parks, churches and businesses with daycare programs, and the most densely residential population within the City's boundaries; and WHEREAS, the City Council anticipates that (1) new probation facilities may locate in the City before a non-urgency ordinance would become effective, and/or that (2) an existing office user may enter into a lease with a probation facility before a non- urgency ordinance would become effective; and WHEREAS, without appropriate standards to regulate probation facilities that supervise registered sex offenders and other potentially dangerous felons on properties not controlled by the City or its related agencies, the City lacks the enforcement or contract powers to address any potential impacts from the establishment of such facilities, particularly in locations frequented by children and other potentially vulnerable citizens; and Urgency Ordinance No. 685 Page 1 WHEREAS, City staff requires time to develop appropriate regulations for the regulation of probation facilities in a manner that is consistent with applicable laws; and WHEREAS, the City Council desires, on an urgency basis, to temporarily prohibit the establishment of probation facilities within the City; and WHEREAS, the State Planning and Zoning Law (Gov. Code §§ 65000, et seq.) broadly empowers the City to plan for and regulate the use of land in order to provide for orderly development, the public health safety and welfare, and a balancing of property rights and the desires of the community and how its citizens envision their city; and WHEREAS, Government Code Sections 36934, 36937 and 65858 expressly authorize the City Council to adopt an urgency ordinance for the immediate preservation of the public peace, health or safety and to prohibit a use that is in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time; and WHEREAS, City staff have begun to analyze whether the existing zoning and other land use regulations pertaining to probation offices are sufficient to protect the public health, safety and welfare; and WHEREAS, this ordinance is being adopted in order to allow the City time to thoroughly review, study and revise the City's laws, rules, procedures and fees related to probation facilities, to enable the City to adequately and appropriately balance the rights of existing operators and future applicants who wish to operate such facilities in the City, with the preservation of the health, safety and welfare of the City's citizens, and particularly of its children; and NOW, THEREFORE, the City Council of the Irwindale does ordain as follows: SECTION 1. Findings: A. Generally, there are currently no ordinances in the Irwindale Municipal or Zoning Code (collectively, "Code") specifically regulating or monitoring the location, zoning standards, or other aspects of regulating probation facilities. B. The City is particularly concerned that there are currently no ordinances in the Code specifically regulating or monitoring the location, zoning standards, or other aspects of regulating probation facilities that will (1) supervise potentially dangerous convicted felons, including but not limited to registered sex offenders; and/or (2) be located near "child-centric" locations, including but not limited to public or private schools, parks, playgrounds, and child care centers. Urgency Ordinance No. 685 Page 2 C. Although the City has made a conscientious effort to plan for office uses within specified zones and to anticipate conflicts between competing land uses in order to protect the public's health, safety, and welfare, the Code does not currently provide specific development regulations or definitions relative to the use or placement of probation or parole facilities. D. The City has received inquiries and permit applications related to the establishment of a probation facility within the City and has concerns that it lacks appropriate standards to regulate the same. E. The City is particularly concerned that the operator of this facility has identified a proposed location for the same that is located approximately 160 feet from a public charter school known as "Options for Youth," a facility that works with children in grades 7-12. F. The City is further concerned that under the defined jurisdictional responsibilities, among other potentially dangerous felons, the proposed probation facility will be working with registered sex offenders. The operator has specifically informed the City that the proposed facility will be providing services through AB 109's post-release supervised persons program. The proposed probation facility will be responsible to do the following according to CDCR Fact Sheet, Page 3: Post-Release (County-Level) Community Supervision CDCR continues to have jurisdiction over all offenders who were on state parole prior to the implementation date of October 1, 2011. County-level supervision for offenders upon release from prison includes current non- violent, current non-serious (irrespective of priors), and some sex offenders. G. The establishment of probation facilities near child-centric locations, like the one referenced above, without appropriate rules and regulations could result in the creation of negative secondary effects such as an increase in crime in the areas immediately surrounding the probation facilities, re-offense (or "recidivism") by registered sex offenders and other felons of the crimes for which they were previously incarcerated against the City's citizens (particularly against children), and irreversible incompatibility of land uses. Such criminal activity is the type of negative secondary effect associated with the presence of probation facilities, generally, and registered sex offenders, specifically, in child-centric locations that a zoning study will seek to limit. The use may also have the secondary effect of driving existing business away and/or discouraging new business from locating in the City, thereby encouraging the formation of blight in what is considered the City's downtown business district. H. The City is aware of studies which demonstrate that, when measured over a period of more than five years, recidivism rates among registered sex offenders as a class are high. This danger presented by sex offenders is an unacceptable risk to the Urgency Ordinance No. 685 Page 3 health, safety and welfare of the community that may require the City's regulatory intervention. I. For example, although some recent CDCR publications that studied registered sex offenders over a short period of time document a lower than expected recidivism rate, a notable paper documenting and comparing forty-six (46) studies regarding sex offender recidivism contradicts this conclusion and establishes that the re-offense rates for these offenders remains high. A copy of this paper is attached hereto and incorporated herein as Exhibit "A" to this Ordinance. As detailed in this study, several additional points should be noted on the subject of sex offender recidivism rates - which researchers conclude do not accurately reflect sex offender re- offense rates or their true dangerousness as a class. a. First, the term "recidivism rates" refers to detected or officially recorded sex crimes. However, researchers agree that recidivism rates underestimate re-offense rates because most sex crimes go unreported. Specifically, they estimate that somewhere between 64% and 99% of sexual assaults are never reported by victims and most studies indicate that fewer than 16% of sex offense victims eventually report their crimes. (See, Exhibit A, pg. 1 and within citations.) For example, in one of the first large-scale studies of sex crimes, Gene Abel and his colleagues reported that adult sex offenders who were guaranteed anonymity disclosed having committed an average of 533 sex offenses over a 12-year period before being detected. The researchers concluded that "arrest records of paraphiliacs do not provide a reliable indication of the true scope of paraphilic acts" and that "most paraphilic acts are not reported". (Id. at pgs. 1-2.) b. Second, recidivism rates, which are based upon sex offender arrest records, do not accurately reflect sex offender re-offense because sex crimes often go undetected (usually due to the aforementioned lack of reporting). For example, studies have documented that, on average, 10 to 16 years elapse between a sex offender's first offense and his first arrest. (Id. at pg. 2.) c. Third, studies indicate that recidivism rates are high when tracked for a period of several years, so as to better account for the above two issues regarding the lack of consistent reporting and arrest for sex crimes. Researchers find that recidivism rates steadily increase as offenders are followed for longer periods of time (allowing for a greater probability of detection). Specifically, the study attached as Exhibit "A" surveyed 46 recidivism studies of adult sex offenders conducted since 1980 (36 individual studies and 10 meta-analyses) and documented the following conclusions: When arrest records are examined over brief periods of time (1-5 years), many researchers find relatively low recidivism rates among adult sex offenders. For example, a study conducted by the Minnesota Urgency Ordinance No. 685 Page 4 Department of Corrections found recidivism after one year to be 3% and the United States Department of Justice reported recidivism after 3 years to be 5%. A total of 26 groups of offenders out of 58 (45%) had recidivism rates of 10% or less if tracked for 5 years or less. It should also be noted, however, that even in these short-term studies, 15 groups (26%) had recidivism rates of 21% or higher. (Id. at pg. 3.) • When researchers track offenders for longer periods of time, recidivism rates increase. Only 15 of 58 groups of offenders (26%) had recidivism rates of 21°/0 or greater when tracked for 5 years or less but that 21 of 40 groups of offenders (53%) had recidivism rates of 21% or greater when tracked for 6 to 15 years. (Id.) • As researchers track offenders for even longer periods of time, recidivism rates increase more noticeably. Of the 18 groups of offenders in our survey tracked for 11 years or more, none had recidivism rates below 10% and only 4 groups of offenders (22%) had recidivism rates of 20% or less. All 8 groups of offenders tracked for 16 years or longer had recidivism rates greater than 30%. (Id.) • In the few individual studies in which offenders are tracked for over 21 years, recidivism rates are uniformly high. One study found recidivism for a mixed group of offenders to be 48% after 28 years, another found recidivism to be 39% for rapists and 52% for child molesters after 25 years, and another found recidivism for a mixed group of offenders to be 61% after 25 years. J. To allow time for the City to consider, study and enact regulations for probation facilities, particularly those that will supervise registered sex offenders, and particularly those that will be located near child-centric locations, it will be necessary to temporarily suspend the approval of any and all use permit, variance, building permit, or any other entitlement or permit authorizing the establishment of probation facilities at new or existing commercial and/or office facilities in the City as such uses may be in conflict with the development standards and implementation regulations that the City will ultimately impose after the City has considered and studied this issue, which shall be accomplished within a reasonable time. K. A moratorium will provide the City with time to draft and adopt appropriate regulations to regulate the location and operation of the above-described probation facilities in a manner that is consistent with the Code, compatible with surrounding neighborhoods and in the best interests of the residents of the City. L. Without the imposition of a temporary moratorium on the establishment of the above-described types of probation facilities, the City anticipates that (1) new probation facilities may locate in the City before a non-urgency ordinance would Urgency Ordinance No. 685 Page 5 become effective, and/or that (2) an existing office user may enter into a lease with a probation facility before a non-urgency ordinance would become effective. M. There is a current and immediate threat to the public health, safety and welfare of the City and its community, thereby necessitating the immediate enactment of this moratorium as an urgency ordinance in order to ensure that permits for such facilities are issued only under adequate regulations. Imposition of a moratorium will allow the City sufficient time to conclude the preparation of a comprehensive ordinance for the regulation of such activities. SECTION 2. Interim Prohibition During the effective period of this ordinance, no use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be accepted, processed, approved or issued for the establishment or operation of a probation facility in the City within 500 feet feet of a "child-centric site", and no person shall otherwise establish a probation facility upon any new or existing commercial and/or office use or other facility or use in the City (through lease or other method of assignment or agreement) that is located within 500 feet feet of a "child-centric site" for a period of 45 days. The 500-foot buffer zone shall be measured in a straight line, in all directions, without regard to intervening structures, from the nearest property line of a child-centric site. For purposes of this ordinance, the following definitions shall apply: • "Probation facility" shall mean a facility for the provision of probation services under the post-released supervised persons AB 109 program. • "Child-centric site" shall mean a school (grades K through 12), park or child care center. • "Child" or "children" shall mean any person(s) under the age of eighteen (18) years. • "Child care center" shall mean any state of California, Department of Social Services licensed facility or other duly-authorized facility that provides non-medical care on a less than twenty-four (24) hour basis to children in need of personal services, supervision or assistance essential for sustaining the activities of daily living or for the protection of the individual, including, but not limited to, infant center, preschool, extended-day care facility, or school-age child care center but not including a family day care home located in a residential zone. Urgency Ordinance No. 685 Page 6 • "Park" shall mean any indoor or outdoor areas owned, leased, controlled, maintained, or managed by a public entity, which are open to the public, where children regularly gather, and which provide recreational, cultural, and/or community service activities including, but not limited to, playgrounds, playfields, athletic courts and any open space intended for recreational use. • "School" shall mean the buildings and grounds of any public or private school used for the education of children in kindergarten or in grades 1 through 12, inclusive. SECTION 3. Urgent Need Based on the foregoing recitals and findings which are all deemed true and correct, this interim ordinance is urgently needed for the immediate preservation of the public safety, health, and welfare. This interim ordinance shall take effect immediately upon adoption and shall be of no further force and effect 45 days following the date of its adoption unless extended in accordance with the provisions set forth in Government Code Section 65858. SECTION 4. Authority Government Code Section 65858 provides that an urgency measure in the form of an initial interim ordinance may be adopted without prior public notice by a four-fifths (4/5ths) vote of the City Council, which shall be effective for only 45 days following its date of adoption. Government Code Section 65858 further provides that such an urgency measure may be extended following compliance with that section for up to an additional 22 months and 15 days beyond the original 45-day period. SECTION 5. Penalties The definitions and penalties for land use violations that are prescribed in the Irwindale Zoning Code shall apply to violations of the provisions of this Interim Ordinance. SECTION 6. CEQA The proposed action is considered to be exempt from the provisions of the California Environmental Quality Act (CEQA), pursuant to Section 15061(b)(3) of the CEQA Guidelines, in that the proposed action consists of the adoption of a zoning moratorium ordinance which does not have the potential for causing a significant effect on the environment. / / / Urgency Ordinance No. 685 Page 7 ct )(ket, 'ura M. Nieto, CMC puty City Clerk SECTION 7. Severability If any provision of this Interim Ordinance or the application thereof to any persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this Interim Ordinance which can be given effect without the invalid provision or application and to this end the provisions of this Interim Ordinance are hereby declared to be severable. SECTION 8. Notice The City Clerk shall certify to the passage of this Interim Ordinance and shall cause the same to be published and/or posted at the designated locations in the City of Irwindale. PASSED, APPROVED, and ADOPTED, this 12th day of November, 201f4 Mark A. Breceda, Mayor ATTEST: Urgency Ordinance No. 685 Page 8 §ura M. Nieto, CMC eputy City Clerk 5ura M. Nieto, CMC eputy City Clerk STATE OF CALIFORNIA COUNTY OF LOS ANGELES } ss. CITY OF IRWIN DALE I, Laura M. Nieto, Deputy City Clerk of the City of Irwindale, do hereby certify that the foregoing Interim Urgency Ordinance No. 685 was duly introduced and adopted at a regular meeting of the Irwindale City Council held on the 12 th day of November, 2014, by the following vote of the Council: AYES: NOES: ABSENT: ABSTAIN: Council members: Councilmembers: Councilmembers: Councilmembers: Ambriz, Garcia, Ortiz, Mayor Breceda None None Miranda AFFIDAVIT OF POSTING I, Laura M. Nieto, Deputy City Clerk, certify that I caused a copy of Ordinance No. 685, adopted by the City Council of the City of Irwindale at its regular meeting held November 12, 2014 to be posted at the City Hall, Library, and Post Office on November 13, 2014. Dated: / 3 1/Cf Urgency Ordinance No. 685 Page 9