City Council to Hear Appeal on Nonconforming Use at Former Long Term Health Facility

City staff is recommending the City Council uphold a Board of Zoning Appeals to terminate a long term health care facilities nonconforming rights after the facilities license was suspended during the pandemic.

On June 11, 2020, more than 60 residents were evacuated from Golden Cross Health Care after the facility’s license was suspended due to ongoing quality-of-care issues.

“By the time the decision was made to evacuate the facility, 71 residents and 32 staff had contracted COVD-19 and 16 residents had died,” according to a report in Monday’s agenda.”

The facility has not operated as a skilled nursing facility since then. On May 24, the licensing and certification program of CDPH reportedly permanently revoked Golden Cross Health Care’s license to operate the facility because they had not complied with the statutory obligation to renew the license.

Golden Cross also lost its grandfathered nonconforming rights at the location.

Non-conforming use rights are given to properties which purpose do not conform to the use regulations for the zoning district in which they are located.

According to the city’s zoning code, a non-conforming use shall lose its non-conforming staus and shall not be re-established if the same is discontinued for any reason for at least 12 months.

There is a proliferation of nursing homes on Fair Oaks Avenue. According to the city’s General Plan no new nursing homes can be established in the area because the zoning code prohibits them.

During a previous public hearing, Jeff Harlan, who represented the owner of the property, urged the board to reject staff recommendation, saying the owner does not have any intention to discontinue the use of the facility even with the suspension of its operator’s license.

Harlan said the city’s claim does not satisfy the legal requirements to show that the owner voluntarily abandoned the property.

Citing the city’s zoning code, he said the determination of discontinuance shall be supported by evidence such as actual removal of equipment and turning off of utilities, among other actions.

“There is no intent to abandon and no action to abandon so ultimately, there is no evidence of any kind of voluntary abandonment. Even while the operator’s license is temporarily suspended, the property’s underlying use remains in continued operation under applicable law.”