Last month, the Planning and Zoning Board voted 7-1 to approve the conditional use of property zoned R-1 at 202 Johnson Drive for a “family care home.”
The city’s zoning ordinance defines conditional use as “a permitted use which possesses certain characteristics which require review by the Planning Commission for approval and any appropriate controls deemed necessary to ensure compatibility with other uses in the district.”
Women recovering from drug and alcohol addictions are living at the residence, which continues to remain surrounded by controversy. The property is owned by Curtis Capps, owner of Royal Foods of Alabama and co-publisher of the St. Clair County News.
Capps, who also serves as chairman of the non-profit Recovery Journey residential rehabilitation center on Johnson Drive, said court-ordered women living at the residence have first-time, non-violent drug or alcohol convictions and no other criminal records.
But Lakeview residents continue to express opposition to the residential rehabilitation center, which operated in their community for more than seven months without any public notice.
“Please consider this to be a formal request, made on behalf of all of the foregoing Pell City residents of R-1 zoning districts, that you reconsider the action taken at the meeting allowing the Capps’ dwelling to be conditionally used in their neighborhood as a residential rehabilitation facility for adult female drug and alcohol offenders referred to the house by the criminal court system,” Pell City attorney Walter Kennedy wrote in his letter to the nine-member Planning and Zoning Board.
The April 5 letter was copied to the city’s mayor and council.
In his letter, Kennedy said he represents about 18 residents who own property in the Lakeview Community.
“It is the contention of my clients that the action taken at the (March 25) hearing is directly prohibited by the Pell City Zoning Ordinance on both procedural and on substantive grounds,” Kennedy wrote.
He alleges residents were not given proper notice of the March 25 hearing before the Planning and Zoning Board.
Kennedy said residents living adjacent to group home property were notified 10 days before the hearing, but residents are required a two-week notice.
He provided the board with the notice of the hearing, which was dated March 15. The hearing was held March 25.
“As the result of the direct violation of the mandatory notice requirement of Section 306.03 (2) of the (Pell City Zoning) ordinance, my clients request that the action taken on March 25 be vacated by the board until such time as the ordinance is complied with fully,” Kennedy wrote.
He said the city’s zoning ordinance allows the board to grant a conditional use permit only for a use that is “expressly permitted” as a conditional use in a particular zoning district.
“In other words, only uses that are specifically and explicitly allowed in an R-1 district may be legally approved by the board,” Kennedy wrote. “On the other hand, if a particular use is not ‘expressly permitted’ in a particular district, my clients contend that the board has no legal authority to allow it.”
Kennedy states in his letter to the board that the only residential use expressly permitted for “conditional use” of the property is for a “family care home.”
“If the use being made of the property by Mr. Capps does not fall within the definition of ‘family care home,’ then it is not ‘expressly permitted’ under the zoning ordinance, and it could not legally be authorized as a conditional use by the Planning and Zoning Board, Kennedy wrote. “The use of the Capps property as a residence for 12 adult women clearly does not fall within the definition of a ‘family care home.’ Section 202.75 of the Zoning Ordinance defines a ‘family care home’ as being a ‘group care home, serving up to 10 individuals, unrelated by blood or marriage, living together as a single housekeeping unit under the supervision of one or two resident managers, whose purpose is to serve socially, physically, mentally or developmentally impaired children in a family-type living arrangement.’ Obviously, based upon the public statement made at the hearing, the purpose of the facility in question has nothing to do with serving ‘impaired children,’ and more than 10 adult individuals referred by the criminal courts are presently residing at the house.”
He alleges the property does not qualify as a “family care home,” but is actually a “rehabilitation facility,” as defined in the city’s zoning ordinance as an “institutional facility providing residential and custodial care for the rehabilitation of socially-impaired individuals who are indigent, recovering from addiction to drugs or alcohol, or recently released from a penal institution.
“Since the Capps property does not qualify as a ‘family care home,’ it is the contention of my clients that the Planning and Zoning Board violated the law that applies, the Pell City Zoning Ordinance, by allowing the property’s use as a group home for a dozen or more adult women who are recovering from drug and alcohol addictions,” Kennedy wrote. “The board should therefore rescind the authorization granted to Mr. Capps at the hearing and require that the dwelling be used as a single family residence only, in accordance with its zoning.”
Mayor Bill Hereford said Thursday he has seen the letter.
“I think this is the civil and appropriate thing for Walter (Kennedy) to do,” Hereford said. “He makes some good points.”
The mayor said the matter is and remains in the hands of the Planning and Zoning Board, whose members are appointed by the mayor and council.
“It’s still within their jurisdiction,” he said. “Knowing the chairman, Bill Ervin, is a very open, fair minded guy, I believe he will give that letter every consideration.”
In his letter, Kennedy also asked the board to advise him of its position by Monday.
