The following letter was sent to the RSFA Board of Directors on October 29 and is awaiting their reply. Ms. Ruhnau also publicly presented her position to directors at last week’s monthly RSFA Board meeting.
To the Board of Directors of RSFA:
I do not intend to be giving legal advice. What follows is my opinion based on review of our Governing Documents, Federal, State and local statues, laws, regulations etc. Nor is this an exhaustive examination of potential challenges to the “Silvergate RSF” project proposed by Americare Health & Retirement Inc., (referred to variously as “Americare” or the “Americare project”). I am only looking at one section of our Protective Covenant that, in my opinion, prohibits permitting the Americare project.
Americare proposes a “memory care” facility. This facility is proposed to house people with some form of mental impairment or disability such as dementia or Alzheimer’s disease. I am not considering this a facility for seniors who are experiencing ordinary forgetfulness as they age. The National Institute on Aging defines dementia as the loss of cognitive functioning – thinking, remembering and reasoning – to such an extent that it interferes with a person’s daily life and activities.
The RSF Covenant specifically prohibits such a facility:
“There shall never at any time be erected, permitted, maintained or carried on upon said property or any part thereof, nor shall any part of said property be used for … the care, cure or restraint of the mentally impaired.”
(Protective Covenant ARTICLE I Par.1., Section 1.)
In order for any mental health care facility or “memory care” facility to be built in the Association, the Protective Covenant would have to be changed by a vote of the membership.
Sharon Ruhnau
We have prior experience with implementing Covenant restrictions, both those that are contradicted by law and those that are not. In the instance of contradictory laws, the Fire Department banned wooden roofs due to the fire danger in our area. Rancho Santa Fe had to comply and prohibit wooden roofs. In the second instance there was no overriding law and Rancho Santa Fe had to put the issue of a columbarium to a vote of its members. Here, there are no laws Federal, State or local, mandating that any such facility be built in Rancho Santa Fe. In order for any mental health care facility or “memory care” facility to be built in the Association, the Protective Covenant would have to be changed by a vote of the membership.
It has been positioned that there is some controlling law. I will attempt to address the possible applications below.
Federal & State Discrimination Laws
The Federal Fair Housing Act of 1988 (42 USC §3601 et seq.) bars discriminatory housing practices, including denial of a dwelling to a person because of race, color, religion, sex, familial status or national origin. It further prohibits discrimination on these bases in the provision of services or facilities in connection with a dwelling. Discrimination is defined to include a refusal to make reasonable accommodation in rules, policies, practices or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling. (42 USC § 3604.)
RSFA does not provide housing. As an HOA it has regulations for the promotion of the health, safety, comfort, convenience and general welfare of owners and occupants. It is my understanding that no request to modify housing to accommodate a member’s disability has ever been denied. Further, it is not now discriminating in the provisions of services or facilities in connection with a dwelling. Whatever services/facilities RSFA provides e.g. administration, security patrol … are based solely on membership in the Association. I do not believe RSFA has ever, nor could it, discriminate based on disability on membership in the Association.
RSFA is largely made up of single-family dwellings. Although the Protective Covenant contemplated Class K (Hospitals and Institutions), none has been built and no entity with legal authority has ever mandated that RSFA build any. Nor has any entity with legal authority ever maintained that failing to have a hospital or like institution in RSFA is discriminatory. Nor has any entity with legal authority mandated that RSFA have a “memory care” facility or be considered discriminatory for failing to do so.
The state of California encourages the development of enough residential care facilities to meet local needs. “It is the policy of this state that each county and city shall permit and encourage the development of sufficient numbers of residential care facilities for the elderly as are commensurate with local need.” (CA Health & Safety Code §1569.83.) This applies to cities and counties and other like public agency. (Rancho Santa Fe is a homeowner’s association and is not considered any kind of governmental agency. CA Civil Code § 4080. At most an HOA may be considered quasi-governmental.)
Senate Bill 9 authorizes local agencies to zone up to four homes on an existing parcel, restricted by the constraints of fire, wetlands etc. Senate Bill 10 allows local government to zone up to 10 units per parcel in transit rich or urban infill sites.
Proposition 1, The Homekey+ Initiative, is intended to address homelessness and housing scarcity. It authorizes the release of $2.2 billion to build permanent supportive housing for veterans and other individuals with mental health or substance abuse disorders challenges who are at risk for or are experiencing homelessness. The Behavioral Health Services Act focuses on people with the most serious illnesses, substance disorders and housing needs.
California’s Civil Rights Department (formerly the Department of Fair Employment and Housing) prohibits discrimination based on sex, race, …disability, or mental condition. The same reasoning posited above regarding discrimination and Federal laws applies here.
San Diego County’s annual report stated that it was streamlining opportunities facilitating the production of senior and low-income housing. It created monetary incentives to encourage construction of more senior housing and assisted living housing facilities. San Diego County has not passed any ordinance, regulation or law mandating that mentally impaired seniors must be housed within the County. [Note that California Prop I would reduce the amount of money to counties to provide Mental Health Care and requires counties to spend more on housing and support services.]
The County Board of Supervisors’ five-year plan addresses the substantial need for new supportive/affordable housing resources, especially for people experiencing homelessness with serious mental illness and substance abuse conditions.
In sum, and without investigating every law or permutation thereof, while there may be laudable policies to address homelessness and senior mental care, there are no laws that mandate permitting/construction of a memory care facility within an HOA. Therefore, before allowing any such facility in RSFA, a vote of the membership is required to change the Covenant restriction.
I further question the following:
- The advisability of building a memory care facility on the corner of Calzada del Bosque and Via de la Valle, which is an area classed in the Fire Hazard Severity Zone as VERY HIGH.
- The building of such a facility in RSFA, an area designated historically significant, which impacts negatively on the character of the community.
Finally, the proposed project is not intended for an unserved, unhoused, low-income population. There is no aspect of doing good for the community. This is a money-making venture, pure and simple that does nothing to enhance Rancho Santa Fe.
Respectfully submitted,
Sharon Ruhnau
Sharon Ruhnau is an attorney, former RSFA Board Director, and Covenant resident.