Legal counsel agrees Capstone house is exempt from conditional use permit

Following an intense zoning board of adjustment meeting last month, the board determined this past week that Capstone Behavioral Healthcare’s group home is exempt from needing a conditional use permit to operate per state code, which is also an opinion upheld by the City of Newton’s legal counsel.

The zoning board of adjustment made the decision in a 4-0 vote at its Sept. 10 meeting at City Hall. Comments were limited to board members only since the public hearing had already concluded at the August meeting. At that time, the board decided to table its action regarding the conditional use permit exemption.

Noreen Otto, vice chair of the city’s zoning board of adjustment, appreciated the additional feedback from members of the public and the follow-up information from city staff regarding the group home. Otto mentioned a memo from the city attorney offered the board greater clarity into the situation.

“We were provided a copy of that memo from Brick Gentry, who acts as the counsel to the City of Newton, and it was their opinion that Capstone does qualify for the exemption that’s laid out under Iowa Code, which means a conditional use permit is not necessary nor would even be appropriate in this case,” Otto said.

However, Otto also expressed frustration with the lack of initial communications. Hours of time were invested by city staff, neighbors, Capstone workers and board members into this matter, but Otto said with a little more original forthcoming information it would have provided some more comfort to those involved.

“So I did want to just admonish that I was a little bit disappointed about the lack of communication sort of all around,” she said. “But, to me, the issue is clear here with a ruling from the city attorney. Their opinion is that we don’t need to consider the conditional use permit. And I agree.”

Craig Trotter, a member of the zoning board of adjustment, noted Iowa Code takes the concerns of the neighbors into consideration. If there are issues later down the road or if the neighborhood has concerns, he said they can contact the administration office and investigate if need be.

Julie Smith, executive director of Capstone, did not attend the September board meeting but was pleased to find out the nonprofit organization was exempt. Still, she argued the exemption was clear long before the August meeting when she provided copies of state code chapters and her application.

“I said, ‘We do not have to do this. We are moving in people with disabilities and it does not qualify us to have to do this conditional use permit. I do not want to have a public hearing where the neighbors are notified,’” Smith said in a follow-up interview with Newton News this past week.

Smith added that holding a public meeting could invade the privacy or violate the rights of the residents who live in the group home.

“Because now what has happened since that meeting is these people have a huge target on their backs,” Smith said. “I said that before. And now they determined we’re exempt from it, which they should have determined before they sent out letters to the neighbors.”

BACKGROUND INFORMATION ON PREVIOUS MEETING

Newton News previously reported on the August board of adjustment meeting in which a number of neighbors expressed their opposition to the group home operating in their neighborhood. They complained their quiet neighborhood would be disrupted by the residents and clients living in the Capstone house.

Others accused or suspected their new neighbors of being criminals or having criminal backgrounds. They questioned whether the residents were sexual predators or murderers or were diagnosed with schizophrenia, and they feared their homes or their children would be harmed.

However, Smith and the vice-president of the Capstone Board of Directors, Rita Baker, adamantly denied the clinic was not harboring criminals and insisted it was no different than the homes Progress Industries offered to people with disabilities. They also stressed their clients have rights to privacy.

Which is why diagnoses were not discussed nor disclosed during the public hearing. Bill Ehler, who is often involved with National Alliance on Mental Illness, said he has a family member with bipolar disorder who lives in an apartment, but they did not have to disclose their medical history before moving in.

Supporters of Capstone also pointed out the neighbors’ comments only fostered the social stigmas surrounding mental health issues.

“People have horrible, horrible stigma about mental health and think people with a mental illness or a substance abuse disorder are bad people,” Smith said, reflecting on the past meeting. “Just because you have a diagnosis does not mean you’re a bad person.”

The clinical director at Capstone, the sheriff, the director of Jasper County General Assistance and the administrator of the Jasper County Health Department all expressed their support of Smith in letters provided to the city. They emphasized the need for housing and fostering a welcoming community.

Prior to the August board of adjustment meeting, the city asked that Smith provide them information that would support the clinic’s exemption from a conditional use permit. Smith presented the city with state codes defending her argument, but the city suggested it needed more information.

Since the information was not provided to the city, legal counsel said there was no way for Newton to confirm these exemptions without a public hearing.

LEGAL COUNSEL GOES BACK AND FORTH

Documents included in the board of adjustment meeting packet show there was correspondence between the city’s attorney and Capstone’s lawyer, Michael Lewis. In a letter addressed to Matthew Brick of Brick Gentry, P.C., Lewis argued the city has no legal authority to know if proposed tenants are disabled.

Lewis also claimed the city was attempting to deny occupancy or was actively denying occupancy. The city adamantly denies this claim and said it has taken no action to prevent occupancy. Still, Lewis argued the city has no right to prevent Capstone from leasing its property to tenants using the property as their home.

He also makes frequent mention of the Fair Housing Act, a federal law prohibiting housing discrimination. Lewis said the law supersedes state and local laws, to which the city agreed. Still, the city argued it does not mean the state and municipalities cannot make laws in this area.

The city included rebuttals for a number of claims made by Lewis in his letter.

For instance, the city is taking the claims of discrimination seriously and had asked Capstone to provide evidence. However, no such evidence was disclosed.

The city argued it has attempted to work with Capstone to bring it in compliance with City Code, and that any “housing barriers” are a result of the organization’s refusal to cooperate with standard procedures or provide requested information to streamline the process.

In response to Lewis’s and Smith’s claims that requiring a public hearing violates the Fair Housing Act, the city provided guidance from the U.S. Department of Justice and Iowa Code, which grants boards of adjustment the power to hear and decide special exceptions to local zoning laws.

As for the notification of neighbors, the city said its code does not treat individuals with disabilities any differently than those without a disability. Neighbor notifications and public hearings are required by the City Code for all conditional use permits, the city said.

The city also concedes it had no knowledge of Capstone’s other group homes and wagered the organization did not follow proper procedures in the past.