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HomeMy WebLinkAbout02/10/2004 - Study SessionCITY OF NEWPORT BEACH City Council Minutes Study Session February 10, 2004 - 4:00 p.m. ROLL CALL Present: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols (arrived 4:10 p.m.), Mayor Ridgeway Absent: None CURRENT BUSINESS 1. CLARIFICATION OF ITEMS ON THE CONSENT CALENDAR. Regarding item #7, Big Canyon Reservoir, Council Member Heffernan requested information on the current City cost based on the revised numbers versus grant money (state & federal). On Item #12, General Plan Update, he requested information on how much has been spent to date, when the target completion date is for issuing the General Plan Update, and what is the total budget for the whole thing. 2. JOINT MEETING WITH PARKS, BEACHES & RECREATION COMMISSION REGARDING PARK PRIORITIES. Commissioners Present: Chair Debra Allen, Val Skoro, Gregory Ruzicka and Tim Brown (arrived 4:26 p.m.) Commissioners Absent: Vice Chair Thomas Tobin, William Garrett and Roy Englebrecht Utilizing a PowerPoint presentation, City Manager Bludau highlighted the issues that were discussed two years ago. The parks under discussion are Upper Bayview Landing, Newport Village and Sunset Ridge. He reported that the new issues since the last joint meeting are: 1) the state budget crisis that has increased which raises the need to finalize the lease with the State Parks for Sunset Ridge and most likely will limit new funding streams for park development grants; 2) Council Member Rosansky has requested that the park priorities be revisted; and 3) the current City budget will only allow limited development funds for future parks for probably the next 3.5 years. From staffs perspective the purpose of this Study Session is to revisit the priorities and to provide direction to staff on priority implementation. Mr. Bludau provided a park site description for Upper Bayview Landing (12 acres) and noted that the current status is that it has gone to the Coastal Commission and received conditional approval, however the City is still in the process of getting the coastal permit issued. There is a 120 unit affordable senior housing project on the lower portion and the passive park is planned on the upper portion. He said the site grading is projected to begin in March 2004, construction projected to begin in the summer with completion in the summer of Volume 56 - Page 652 INDEX 1 (100.2004) City of Newport Beach Study Session Minutes February 10, 2004 2005. INDEX Mr. Bludau provided a site description of Newport Village (12 acres) and noted that the southern portion has been graded and is highly disturbed. As far as Sunset Ridge (15 acres), Mr. Bludau noted that it is graded and highly disturbed and had some oil wells on it in the past, as well as has ingress and egress problems. Reporting on the budget status of the three parks, Mr. Bludau pointed out that $680,000 is currently budgeted for park completion for Bayview Landing; $120,000 has been budgeted for design plan for Newport Village and none of that money has been expended. The cost of the Sunset Ridge site based upon the appraisal is $1.356 million. The City currently has $680,000 budgeted, which leaves another $676,000 needed to complete the lease. He said staff feels like there is $537,000 available in park in -lieu fees, which leaves a shortfall of just under $140,000. There is no budget for planning and construction and since it has been so long since there has been any discussion of what the park would look like and what activities would be conducted, there would need to be some community outreach done in order to come up with a conceptual design. In response to Mayor Ridgeway, Mr. Bludau explained the process for changing the priorities on the development of the three parks and further explained that the Sunset Ridge park legislation did not set time limits for closing the deal, however based upon the state budget situation the City shouldn't take anything for granted. Since Caltrans is short of money someone else could make an offer on the property. Council Member Heffernan reported that he rents space across the street from Newport Village and questioned whether it was a conflict. City Attorney Burnham said he does not see how the project would have a material impact on the rent, so there's no conflict. Mayor Ridgeway reported a similar situation and noted that his is a long -term lease. Mayor Ridgeway welcomed the Parks, Beaches and Recreation Commissioners and opened the item for discussion. Chair Allen said that she sees the commissions' role in the process as representatives of the public. She said they are the ones that go out into the neighborhoods to find out what people are thinking and then forward the identified public issues to the Council. She said the Commission is here to get direction from the Council. Commissioner Skoro, head of the Park Development sub - committee, stated that he was the chair of the commission during the time when there were extensive outreach hearings on Newport Village. From the outreach program the commission came up with a lot of recommendations and The Irvine Company (TIC) was magnanimous enough to hire EPT Landscape Associates to develop a conceptual plan. One of the key items identified from the outreach program was the need for more parking for the library. He said everyone agrees there is a shortage of parking for the library and Corona del Mar Plaza. He said he would recommend that the City proceed with the $125,000 that is currently in the Volume 56 - Page 653 City of Newport Beach Study Session Minutes February 10, 2004 INDEX budget for a conceptual plan and costs for various elements that can be phased in at a later date. He said it would be a shame to lose the work and body of knowledge that already exists relative to that. Regarding Sunset Ridge he said he agrees that the City should proceed and capture it from the land aspect and noted that it is an ideal spot for some active playgrounds. He noted that that part of the City is in dire need of an active sports park. During the General Plan outreach program he said that one of the key things the residents asked for was parks. He said he believes the City should fund the completion of the concept development for Newport Village and then come back to the City Council so they can make some funding decisions, and also purchase the land at Sunset Ridge. Council Member Rosansky explained that as the new representative for West Newport he has taken the Sunset Ridge Park under his wing and talked to people about it, hopefully raising the profile of the park and the issue that the City has not closed the deal on the park. In light of the state budget problems and other priorities, the park may be in jeopardy if the City doesn't move forward quickly. As far as prioritization of the parks, he said the history of how that was set up needs to be reviewed. He said from reviewing the minutes from two years ago, it is clear that it was a different time. At that time there was talk about significant development at the Banning Ranch property, which is contiguous to Sunset Ridge park. At the time there was thought that as that property was developed the Sunset Ridge park would come along and perhaps there would be funds from the developer and /or the access issues may have been solved by the Banning Ranch development. Today Banning Ranch is on hold and according to the consultant they are searching for a new development partner. If the development of the Sunset Ridge property is tied to the Banning Ranch property, the City may never see a park developed there, therefore that relationship needs to be de- coupled. He noted that the west area of town is poorly served by active parks and a lot has been spent on parks in the east side of town. He indicated that the Newport Village Park is a great idea and the library does need parking, however the priorities need to be revisited and some decisions made. He noted that if the money that is budgeted for design for Newport Village is reallocated to make up the shortfall for the purchase of the Sunset Ridge Park, than the funding will be complete. He indicated a need to look further down the road due to budgetary issues over the next 4 -5 years and noted that he can't see that the City will be developing two parks at the same time. He questioned whether the City would be proceeding with the development plans for Newport Village and then put them on a shelf and go forward with Sunset Ridge, or is the City going to go forward with Sunset Ridge. Mayor Pro Tem Adams said he believes the first priority should be closing the deal on the purchase of Sunset Ridge followed by the Commission giving Council recommendations on the uses. Regarding the use as an active sports park, he noted that he has some concerns about the access issues. He said the Commission should take a complete look at it and bring a recommendation back to the Council. The second priority would be to bring closure on the concept for Newport Village and once that is done to develop a phased development plan and move as quickly as possible with the first phase which would include library parking. He said Upper Bayview is tied to the development of Lower Bayview. Council Member Bromberg noted that two of the three parks are in his District, and Upper Bayview is pretty much a done deal. He said when he was first Volume 56 - Page 654 City of Newport Beach Study Session Minutes February 10, 2004 INDEX elected the whole idea for that site was for it to be a view park with benches, an amphitheater, and used for docent guided environmental walks. Since that time he noted that Council Member Rosansky was appointed to the Council and noted that he agrees with him that the west side of town doesn't have a sports park and they need one. He said his sense is that two years ago when the Council dealt with the Newport Village site it wasn't so much that the people were excited about having a park, it was that they didn't want to have something else there. He said if the general direction is for a sports park at Sunset Ridge and Banning Ranch is in a different position than it was 2 -1/2 years ago, he could support this and would ask the Commission to determine the best uses for the park. He noted that the only caveat is that if the Council were going to change the priority order he would like to have the City approach The Irvine Company, who owns the Newport Village property, to see if they would be willing to put a deed restriction on the property to assure that in perpetuity the site will be a park and it won't be changed by a Council in the future. Regarding Sunset Ridge, Commissioner Ruzicka questioned whether the two acres east of Superior are an asset or a liability. Mayor Ridgeway indicated that he believes this area is a "park -n- ride'. Council Member Webb indicated that those two acres could possibly be used to expand the parking and noted that it has been used a number of times for construction storage sites. He indicated that the City needs to buy the property and get the lease finalized, but also needs funds to put together conceptual plans for the commission to review. He said there are a number of ways to go — from a full sports park to a full natural park. He said he would like the park to have at least one or two baseball diamonds, a soccer field and a play area incorporated into it. He noted that the City has been working towards that end and putting money aside for it for 14 -15 years. As far as Newport Village, he said he would want to make sure that any deed restrictions would allow for parking that could be jointly used by the library. Depending on the need for parking at the library, the City needs to consider a first phase which would look at parking but necessarily using park funds. Perhaps the Friends of the Library could to do some fundraising with matching funds from the City to put in the parking. Regarding Newport Village, Council Member Nichols noted that it is located between two large streets and unless the terrain is flattened, it can't really be used too well as a park. He said use parks are necessary, not view parks, in his opinion and there hasn't been a new use park in his area for a long time. He pointed out that Bonita Canyon Sports Park is about four miles away and further than most kids under the age of 12 -13 can get to. As far as Sunset Ridge, he said he would like to see it as an active park site. He noted that it presently slopes toward the coast pretty rapidly so only about 50% is useable for nature and that kind of thing. Phillip Bettencourt, speaking on behalf of the multiple owners of the Banning Ranch property, said that regardless of the status of the entitlement efforts of the owners, they want to assure the Council that they will cooperate with the City in any park planning studies that the City may have in mind. Despite the fact that a good portion of the property is in unincorporated territory, there are common interests in a comprehensive transportation access solution, water quality management and flood control issues. To the extent that the City makes Volume 56 - Page 655 City of Newport Beach Study Session Minutes February 10, 2004 INDEX a choice on amenities and looks at any comprehensive planning studies they will be ready on day one to meet the City's needs and requirements. In response to Mayor Ridgeway, Mr. Bettencourt reported that the initial environmental schematic was done in concert with what was known about the City's plans at the time, which assumed that the optimum location as far west of Balboa Boulevard as was possible would meet Caltrans and the City's requirements as well, so that material is available. Council Member Webb asked Mr. Bettencourt whether his client would consider the possibility of the City, at its expense at least initially, putting in some sort of access from where the future arterial highway might go into the park. Mr. Bettencourt said that they have said before that there have been other incursions on other issues all around the boundaries which can be expected when you have a 400 acre property, however they have indicated that they want to look at the road network on a comprehensive master plan basis. He said he believes that the City's studies would lead to the conclusion that where the road is on the master plan of arterial highways would best serve Sunset Ridge. Mayor Ridgeway noted that the Council does not take action at Study Sessions and said he believes the next step is with the Parks, Beaches & Recreation Commission. He noted that he's offered no opinion other than what he has expressed in the past, which is that he supports an active park at Sunset Ridge. He noted that he's received calls from the president of the Newport Harbor Baseball Association, as well as the soccer people, in support of having fields at the Sunset Ridge location. As far as City parks that are actively used for baseball or soccer, they don't exist west of the bridge. He noted that it was suggested that the City purchase the Sunset Ridge property first, plan the Newport Village site to see if parking can be attained, and provide funding for planning at Sunset Ridge. City Manager Bludau questioned whether the $120,000 allocated for Newport Village should be shifted over to support the purchase of Sunset Ridge. Mayor Ridgeway indicated that this is a separate discussion and the focus today is to plan and prioritize. As far as the budget goes, that is up to the City Manager at a later time and date. Mayor Ridgeway indicated that the reason for planning and spending $120,000 at Newport Village is to provide parking for the library. He noted that even though Dr. Vandersloot didn't like it, he was supportive of parking for the library. He said that needs to be looked at in the overall context of where the City is headed, however today is only a planning session. Chair Allen asked the Council if they would like the commission to pursue with The Irvine Company the deed restriction on Newport Village. Mayor Ridgeway explained that there is an irrevocable offer to dedicate the property to the City and it is probably beyond a deed restriction at this time. It is a recorded map and it exists on the map. He said this is a function for the Council to take up in the future and noted that the City Attorney and City Engineer are aware of the offer. Council Member Bromberg suggested that the city attorney look at that and if it irrevocable then it does take care of the problem, however if there's any hole in it, perhaps the City should pursue a deed restriction. Volume 56 - Page 656 City of Newport Beach Study Session Minutes February 10, 2004 Commissioner Ruzicka questioned whether there is anything else the commission can do regarding specific aspects of the proposal. Council Member Nichols stated that earlier when the City was looking at Lower Bayview Landing, the question of a location for elderly housing came up and the upper portion was considered as a possible site and it was considered by the elderly as a preferable site. He said he would like to not preclude that at this point. Mayor Ridgeway noted that Senior Affordable Housing on that site has already been decided and it won't happen on the Newport Village site. S. GROUP HOMES/RECOVERY FACILITIES. City Attorney Burnham introduced Jeff Goldfarb, Rutan & Tucker, who also worked with the City on the Mermaid issue. Mr. Goldfarb has two specialties - adult businesses and group homes, and also serves as the Assistant City Attorney for the City of Irvine. He noted that Mr. Goldfarb will summarize the staff report and will provide some insight into what other communities in the area do relative to group homes. He stated that he may comment briefly on a letter received today from Catherine Martin Wolcott that analyzes and critiques Mr. Goldfarb's memo and will also briefly explain his recommendations relative to changes to the City's regulatory structure which he believes will help the City comply with the Fair Housing Act Amendments of 1988. Referring to the federal regulations, Mr. Goldfarb explained that the federal Fair Housing Acts Amendment (FHAA) prohibits two kinds of discrimination. It prohibits intentionally discriminating against handicapped persons in housing. The term "handicapped" includes people who are abstinent in recovery in alcohol or drug treatment programs. It also prohibits adopting or enforcing regulations which have a discriminatory affect on handicapped opportunities for the housing unless the City can show that the practice furthers a legitimate governmental interest and that governmental interest can't be served in any other less restrictive way. Finally, the FHAA also says that you have to provide what is called reasonable accommodation to persons who are handicapped in the area of housing when some rule or regulation that is being enforced by the City interferes with or restricts their ability to obtain housing in the city. The City has to provide that reasonable accommodation in the form of waiving the requirement that is restricting or prohibiting the housing unless it can demonstrate that the reasonable accommodation would in essence undermine the City's zoning scheme. He noted that it also important to understand the basic regulatory scheme that the City has established for housing in the residential zones. He clarified that in his memo he did not mean to suggest that the City's housing scheme or regulations as they are adopted are in any way grossly invalid. He said his point is that he believes that through certain changes to definitions and the way the matrix is put together, the scheme will be much more defensible because it will more clearly show the City's legitimate interest in the way it regulates residential housing through the various residential zones. He noted that the City refers to its residential zones and defines them with reference to two very different criteria. One criterion is the number of residential dwelling units that can be located on any particular property. It also defines housing in the housing zones with reference to the number of families that can live in each dwelling unit on the property. In the R- 1 zone it appears that the zoning scheme is designed so that you have one Volume 56 - Page 657 INDEX (100/2004) City of Newport Beach Study Session Minutes February 10, 2004 � a► dwelling unit on the property and one family living in that dwelling unit. In the R -2 zone you have two dwelling units on the property with one family living in each dwelling unit. The multi - family zone has multiple dwelling units on the property with one family living in each residential unit. Family is defined not by reference to blood or relationship, but rather by reference to the way people live together within the family units. Family is defined as people who live together as a single housekeeping unit, which cases have defined as being sort of the generic character of a quality — it's not a transient living group — it's a living group that has it's roots together and it lives, breathes, works, sleeps, and eats together in what we would typically consider to be a family. The State has also taken some liberties in defining family. One of the things the State has done in the Health & Safety Code is said that with regard to licensed residential alcohol and drug treatment programs the individuals in that residential program, if there are six or fewer, have to be deemed to be living together as a single housekeeping unit and thus have to be deemed to be a "family" as most zoning codes and the City uses the term "family ". Whenever you have a licensed recovery facility operating in the City that serves six or fewer that would be considered a single family use and would be allowed in the R -1, R -2 & R -3 zones as any other family would be. He noted that the essence of the regulations, which is what is currently established in the City code, is that you can't discriminate against living groups because they are living groups comprised of people who are handicapped, which includes people who are in recovery. If the City code discriminates in terms of the zones against group housing for non- handicapped persons (you don't allow sororities, fraternities, boarding houses, etc.), then the same rules can be applied to other forms of group housing, including group housing for the handicapped, except insofar as it relates to groups that have six or fewer. Groups of six or fewer are operating as a family under state law. Mr. Goldfarb explained that the recommendations he has proposed in the staff report are an effort to clarify the definitions contained in the City's code to clearly express that the City has a significant interest in preserving the residential character of the most restrictive residential neighborhoods in the City. He noted that in the City's code certain words are defined in a couple of different ways which does create some ambiguity. If the City does ever get into court and there is a challenge based on a regulation which would prohibit group homes of the generic variety but also prohibit a group home for someone that is handicapped, the City would have a much better chance of surviving such a challenge. In conclusion, he noted that the City's zoning scheme as a whole is relatively sound, but needs "tuning up" to clarify the City's interests and demonstrate that the City does have a strong interest in its residential zones. Mr. Goldfarb noted that the City of Irvine defines "sober living facilities" and allows sober living facilities in every one of its residential zones as a permitted use, which includes everything from low- density residential to multi -use zones. Costa Mesa allows both residential service facilities, which are unlicensed facilities, and residential care facilities, which are licensed facilities, in all of its zones if they serve six or fewer and if they serve seven or more they are prohibited in the R -1 zones and conditionally permitted in the R -2 and R -3 zones. Mayor Ridgeway indicated that he would like to approach this from the side of Volume 56 - Page 658 City of Newport Beach Study Session Minutes February 10, 2004 INDEX forwarding a substantial City interest. In the case Association for Advancement of the Mentally Handicapped vs. the City of Elizabeth the court affirmed that protecting the residential character of a surrounding neighborhood was a legitimate government interest. He noted that Costa Mesa has an ordinance that says that in an R -1 zone as long as you treat everyone the same, that they can prohibit group or handicapped homes from operating or licensing in that zone. Mr. Goldfarb indicated that to the extent that they serve seven or more people, he would agree, however he clarified that Costa Mesa prohibits handicapped housing whether they are providing services or not providing services when they serve seven or more. If they don't serve seven or more they are permitted uses and the reason they are permitted is because of the scheme that distinguishes whether groups are living together as a single housekeeping unit (a family) or whether they're not living together as a family. Mayor Ridgeway asked if the federal government pre -empts the ability for the City to ask for a conditional use permit if they are a permitted use (six or less). Mr. Goldfarb replied that it does and explained that if the City does not ask that any other group that is living together as a single housekeeping unit obtain a conditional use permit before they set up residency than the City would be discriminating against the handicapped household by requiring that they get a conditional use permit to set up residency since under state law they are defined as a "single housekeeping unit ". In addition, the City references the R -1 zone as being housing for single families. To the extent that a group would be living together as a single housekeeping unit, then regardless it would be permitted, however under state law to the extent that they are defined as a single housekeeping unit then it would be discriminatory to discriminate against them. Mr. Goldfarb clarified that the regulatory scheme changes for more than six and a conditional use permit can be required with the caveat that conditional use permits are required for other groups that are not living together as single housekeeping unit or you prohibit other groups that are not living together as a single housekeeping unit. For example, if you prohibit fraternities from the R -2 zone then requiring a conditional use permit for a group home serving seven or more would not be discriminatory. Mayor Ridgeway reported that the majority of the homes are on the peninsula, in his district, and he has a keen interest in creating a regulatory scheme that provides for the health, safety and welfare of the community on the peninsula and maintains the residential family life that exists. He said there is a certain incompatibility with these homes in the R -1 zone. In response to Council Member Bromberg's question regarding case law that would allow the City, if it chose to, to prohibit a group home because of significant problems with police or illegal activities, Mr. Goldfarb stated that the FHAA provides that when individuals are in fact a demonstrable risk to the health or safety of their neighbors then the mere fact that they are handicapped does not require the City to allow them to endanger the lives of the people around them. The FHAA has said that if there is really a significant problem than the City would be in a position to take action. He further explained that there are some cases that speak about this but don't speak about it in terms of prospective regulation — it is only spoken about in terms of individuals who actually have brought claims against their landlords and in most cases deals with people who are violent and in some cases with people who are actively engaged in the use and sale of drugs. In those situations the court has said that Volume 56 - Page 659 City of Newport Beach Study Session Minutes February 10, 2004 INDEX under the FHAA it is not discrimination against the handicapped — it is a reaction to the fact that the individual is dangerous and it doesn't have to be tolerated. Regarding the nuisance issue, Mr. Goldfarb noted that the City has the ability to enforce nuisance regulations however he has not seen a case where it has been done prospectively to indicate that this category of land uses is a nuisance when it is housing for the handicapped. As far as penalties, if the City decided to exclude group homes there would be an injunction issued against the City, as well as damages and attorney fees. In response to a hypothetical question raised by Mayor Ridgeway about the activities of residents of a group home in an R -1 zone, Mr. Goldfarb indicated that you could potentially get an injunction against the specific activities that constitute the nuisance. In response to Council Member Rosansky's questions about requiring business licenses, limiting the number of occupants based upon bedrooms, and other types of regulatory schemes other than conditional use permits to regulate the facilities, Mr. Goldfarb stated that generally he doesn't believe they would stand up. He explained that the regulations would have to be applied across the board to other similarly situated groups that are not living together as a single housekeeping unit in order for it not to be considered intentional discrimination. Whether the City would have to waive those rules as a reasonable accommodation would depend on whether those rules impacted the ability of the handicapped residents to live in the unit or for the unit to serve the needs of the handicapped residents. In reference to the licensing issues raised by Council Member Nichols, Mr. Goldfarb explained that a state licensed recovery facility is considered a family and to the extent it is considered a family they can't be treated any differently than any other family that wants to live in the City. He further clarified that they get their family status by being state licensed. If they are not state licensed and they are not considered a family, they have no justification for six or under group living. Council Member Nichols asked whether a group home that is rented as an occupancy can qualify as a group home without being licensed by the state, and if there are seven or more can they automatically be gotten rid of. He noted that in the present laws even with handicapped people, who are treated special, there cannot be more than six or more in a residential unit. Mr. Goldfarb noted that the current City code considers handicapped groups of six or fewer to be considered a family. He further explained that the City standard says that six handicapped people living together in essence are a family for purposes of the City's zoning ordinances. State law says that six people in recovery in a state licensed alcohol facility are also considered a family. City Attorney Burnham stated that his understanding of the law is that there is a provision in the Health and Safety Code that prevents the City from applying land use regulations to a group home housing six or fewer people and they use the term alcoholism or drug abuse recovery or treatment facility and he doesn't believe that state law requires a state license for a group home serving six or fewer to be exempt from any regulation that is distinct from those applicable to any other single family uses. You do not have to have a state license to be considered a group home as long as you're serving six or fewer and if you are considered the same as a single family use. He further clamed for Council Member Nichols that state law specifically prevents the City from requiring a business license for a group home serving six or fewer individuals. I£ the Council were to consider a regulatory business license scheme in order to Volume 56 - Page 660 City of Newport Beach Study Session Minutes February 10, 2004 INDEX require a business license for a facility serving seven or more it would require a very significant change to the way the City does business. The current business license structure is revenue raising and it is not regulatory, so an ordinance would have to be adopted that changes the business license scheme. With more than six, the City could require a business license as long as other types of living groups are treated the same. Council Member Webb questioned whether the counselors, etc. that do not live in the facility but come in during the day would affect the number (six or fewer) or would it put them in a different category. Mr. Goldfarb indicated that day service workers would not eliminate them from the category of being a single housekeeping unit. As far as how the supervisors are counted, Mr. Goldfarb indicated that the law (Health & Safety Code) refers to the facility serving six or fewer persons and does not specifically reference service people who also live in the facility. Mr. Burnham noted that the report focuses on federal law as it relates to group homes and it may be appropriate to have another study session to evaluate the state regulatory system before final recommendations are made to the Council. Mr. Goldfarb reported that there are significant differences between the federal and state regulatory schemes and there are some provisions that state law would allow the City to take advantage of that would violate the FHAA. He noted that one of the problems with these types of homes is that there hasn't been close coordination between the state and federal regulations. Mr. Goldfarb reported that Irvine's and Newport's zoning codes are similar in so far as both Irvine and Newport Beach allow group homes serving six or fewer to be considered a family and reside in any residential zone in the City. They are dissimilar in so far that Irvine allows group homes serving more, depending on the type of people they serve to live in other residential zones, as a matter of right or to live in residential zones with a conditional use permit. He indicated that based upon his conversations with the Chief of Police in Irvine he is aware that there are some drug and rehabilitation homes in Irvine. In response to Council Member Nichols, Mr. Goldfarb reported that when he did the memo his charge wasn't to evaluate any specific group home in the City, so as a result he can't address his questions. With Council Member Nichols objecting, the speaker time limit was set at three minutes. Mayor Ridgeway indicated that based on what he has heard it appears there will be another study session to look at the state regulations before it's brought back for formal action at a regular meeting. Michael Backus referenced page 9 of the report which states "because abstinent drug or alcohol addicted persons are "handicapped" persons under the FHAA... ", and then read the definition of handicapped in the FHAA, which does not include current illegal use of or addiction to a controlled substance. If it doesn't include addiction to a controlled substance, then addicts of illegal substances are not handicapped. Mayor Ridgeway pointed out that the case law is really the definitive answer on this issue. He noted that the FHAA goes on to draw some distinction between alcoholism and illegal substance abusers and it's pretty clear that alcoholism is defined by the FHAA as handicapped, however they allow quite a bit of leeway in the type of questions that property owners and managers can ask of their perspective tenants about the use of illegal drugs. For clarification he noted that the recovery center that initiated this issue is in an MFR zoned area and have expanded into an R -2 facility. He said that maybe Volume 56 - Page 661 City of Newport Beach Study Session Minutes February 10, 2004 INDEX there is some business density parking scheme that could be brought out with respect to the business licensing. Rev. George Crisp, Pastor, Christ Church by the Sea, spoke to the character of the residents he has encountered which relates to the discussion about who these people are who are living in the facilities. He said his experience goes back about 2 -1/2 years with some of the residents when they began to come to worship at his parish. He indicated that he has visited with residents from a facility on West Oceanfront when they requested a pastoral call. He said this group home reminded him of the living circumstances that he's seen with the young adults that are part of the Campus Crusade for Christ program that is hosted at his church every summer and also find residential facilities in Newport Beach. He noted that they spoke freely about the personal benefits received from being part of the program and for the first time the students were taking responsibility for their lives and beginning to see relationships with family and friends in a healthier light, as well as discovering that life has a spiritual dimension. He noted that some of the residents participate in their church activities. He said the key is to understand how important spiritual development is in the recovery process and he said he believes that a spiritually based life is a thirteenth step. He said he's been impressed with the commitment to drug abuse education and the support they've received from law enforcement agencies, as well as the recognition they've received from various communities in southern California and the success rate speaks for itself. Catherine Wolcott, attorney for owners of 1824 W. Oceanfront and member of the family that owns the property, asked for clarification from Mr. Goldfarb that programs with seven or more residents per unit should be confined to the multi- family zone. She indicated that she read the report, however disagreed with some of the conclusions and analysis and noted that there are some factual errors as to the character of the neighborhood in the multi - family zone. She noted that they would be concerned if the recommendations were adopted as submitted by staff. She noted that Mr. Goldfarb is correct and the law holds residential care facilities as a protected group and they cannot be discriminated against and it also holds that such facilities are subject to the controls of legitimate government interests. It has held that character, neighborhood issues, nuisance, health and safety, are all legitimate government issues and you can control through that, which supports the requirement of a conditional use permit. She noted that the law says you can't exhibit discriminatory intent towards the handicapped, you cannot have discriminatory impact on handicapped housing and you must provide reasonable accommodations for handicapped. She said the City's existing laws are absolutely compliant with these requirements and the handicapped can live anywhere they want in groups of six or fewer. If they want to exceed six per unit they can apply for a conditional use permit. She noted that a conditional use permit is granted subject to health, safety and character of the neighborhood issues and the City can protect residents, meet the needs of the handicapped residents as well and not run afoul of the FHAA, by enforcing its existing laws. She noted that Narcanon can apply for a conditional use permit and if it is denied they can chose to place six or less residents in each of their existing units, or rent more units. She said that for large residences the conditional use permit is an essential tool to maintain city control and to insure that the living conditions of its handicapped residents are adequate. Volume 56 - Page 662 City of Newport Beach Study Session Minutes February 10, 2004 INDEX Phil Allen, Palomar Foundation, stated that in order to have a six or less treatment facility, you are required to have a license from the state of California to provide any treatment services whatsoever. Licensed facilities answer to the state and are required to have a good neighbor policy, keep up the facilities, etc. He said he believes the problems come from unstructured unlicensed facilities since they don't have a higher authority to answer to. He noted that they have to work within the City and State guidelines and to provide services legally within the state, the facilities must have a state license and a state certification, which separate an "alcohol and other drug" program from the typical group home. Carol Martin noted that on page 9 of the report Mr. Goldfarb suggests that the City is probably not enforcing the requirement that occupants of each dwelling unit in the multi - family zone live together as a single housekeeping unit. Mr. Goldfarb describes a multi - family zone as more likely a multiple dwelling unit zone where groups of roommates such as young adults, college students, etc. live together as roommates rather than single housekeeping units. For this reason she said they recommend changing the name of the zone from multi- family residential to multi -unit residential. She distributed copies of statistics of a multi - family zone in the 1800 block of West Oceanfront. She noted that there are 14 lots, 9 parcels are owner- occupied or if all of the lots are counted 11 are owner - occupied because of the nature of the construction on one of the lots. In the whole block described by Mr. Goldfarb there are only 3 lots that are not owner- occupied. Referring to comments made by Mr. Goldfarb on page 12 that deal with an assumption that young adults typically live in multi - family zones, excluding 1810 W. Oceanfront, of the 14 properties surveyed the group occupying the property are best described by age. The median age is over 65 and the mean age is 56. She noted that three lots are utilized together as a single family residence, one lot is a single lot and is a single family residence, seven lots have two units per lot, two lots have three units and one lot has two non - rental condos. Statistically almost all of them do have an owner occupying the property and the majority are older people. The length of ownership is significant because of the issue of the transient nature of the neighborhood. Excluding the condo, which was not included because there's no public record of the ownership date, the median ownership is 22 years. She pointed out that Mr. Goldfarb's memo does not refer to any specific area of multi - family residential, therefore all the areas are painted with a broad brush that this is where the fraternity boys live. She distributed pictures of the Westcliff area. John Miller noted that there is a large elementary school and a couple of church daycare centers in the area and because of the cost of the use of the school bus a lot of kids either walk or bike to school and pass by the rehab centers. Based on the police blotter printed in the local paper, he stated that burglaries and drug arrests are up in these areas. According to the statistics he reads the permanent cure rate for these addicts is less than 10 %. He said these facilities cause their property values to go down and suggested that the drug rehab centers should be near the hospitals for better and easier access. He said he thinks these "criminal- type" people should be moved out of their area. David Hooker, Newport -Mesa Christian Center, stated that it has been their privilege to host several of the residents from the home in question for the past Volume 56 - Page 663 City of Newport Beach Study Session Minutes February 10, 2004 INDEX couple of years as participants in their congregation. He noted that they are people who want to improve their lives and are making substantial efforts to apply the disciplines that are required to recover from substance abuse. He said he's familiar with the road they are on and noted that it requires people surrounding you that are supportive and helpful. Referencing a proclamation from a couple of years ago in support of "National Alcohol Health and Drug Recovery Month", he noted that in the past there has been support from the City. He noted that in the materials he received from Narcanon they speak of a 70% success rate after one year and southern California has a 76% success rate. Dr. Jack Atkinson stated that they live near the Warner Springs Narcanon facility and noted that the facility has demonstrated an attitude of helpfulness and responsibility. He noted that their clients attend neighboring churches and are an asset to the community. He stated that he and his wife are both licensed professional counselors and university professors, and in their experience they have noted that professional people come to rehab centers for help. He noted that the clients are not criminals and one was the wife of a former U.S. President, Betty Ford. He pointed out that Narcanon has the lowest recidivism rate in the U.S. Pat Botnick said she can't provide any direction to all the explanations and rules and regulations that have to be sorted through, however relayed her experience in living on the peninsula for the last 1 -1/2 years. She spoke to the demonstrative risk to the health and safety of the neighborhood and private enjoyment of one's home. She explained the situation when twice she was approached on her porch by a "falling -down drunk ". She stated that she would not have her 9 year old girl walk to school past these recovery houses because of the smoking and other issues. Carl Mosen stated that Dennis Rodman does not have a recovery home, however he disrupts the neighborhood and the police have been there over 200 times. He said the biggest problem they've had living here is the people that rent to the college kids that party. He noted that this has cleaned up over the last 16 -17 years and stated that the homes he's been involved with have 11:00 p.m. curfews. He stated that thirty of their residents are in college being tutored and they are friendly with the Fire and Police Departments. He noted that this is a rental area. Jim Brierly, Orange County Sober Living Coalition, stated that they have 63 houses that are certified in the County of Orange, including one in Newport Beach. He spoke about a Sheriffs certification program to certify sober living homes that was presented to the Board of Supervisors in January of 2001 and has been adopted by 17 cities in the County. Newport Beach did not adopt the program. The program has very strict regulations and guidelines as far as square footage and the types of persons who are prohibited from living there because of certain criminal offenses. The County Counsel issued an opinion and it was followed by these cities because it could only be a voluntary certification process. He noted that the opinion was that a state or local government entity may not regulate sober living homes through dispersal or distance requirements, conditional use permits, business licenses or zoning restrictions which would prohibit locating these homes in the area zoned for residential use unless the regulations benefit that protected class or responds to legitimate Volume 56 - Page 664 City of Newport Beach Study Session Minutes February 10, 2004 INDEX safety concerns raised by the individuals affected rather than being based on stereotype. He said he inspected 200 homes in 2002 and 2003 and has provided technical assistance to over ten members that are here today. He stated that they are quality homes, the residents are in bed at 11:00 as testified to by Mr. Mosen, they possess no drugs, they are not drunk, they don't possess weapons, and are not breaking any laws. Regarding the one property, none of the 27 permitted residents under state licensure has an automobile, so there can be no effect on the property in that area. He strongly urged the Council to look at County Counsel's opinion regarding regulation of sober living facilities and also noted that the State of California is the sole authority to regulate licensed drug and alcohol treatment programs in the state. Dr. Robbie Atkinson provided her educational background and certifications, and noted that sometimes it was difficult to assess her students and get them the help they needed. She said she had a list of the places that were good and sometimes there were problems getting people into good facilities because of space limitations. She recommended that this facility be accepted and said she is unaware of any problems with the Narcanon group in Warner Springs. She stated that these programs help people re- evaluate and recover to become good citizens. Honey Thames, 305 Columbia, professor of literature and language at Goldenwest College, director of Yellowstone, a member of the National Drug Council, and an alcoholic, stated that in 1984 because Newport Beach embraced and supported recovery she had a chance to get sober and clean and is not a "falling down drunk' today. She thanked the Council for that and noted that she currently lives by people she doesn't like and has to accept the fact that if she's going to live in that community she will have to live with people she didn't chose. On the other hand, at Yellowstone she is aware that the neighbors expect them to behave better than any other neighbors and they do. She urged the Council to support recovery in the community. She pointed out that there are major leaders of recovery in the room and that it is that recovery that improves the quality of all of our lives. Mayor Ridgeway closed the public comments and asked for direction from Council. Mayor Bromberg said he feels there has been a pretty balanced group of speakers therefore he's not sure that continuing this will add anything. He spoke in favor of moving on to something that can be voted on since people can speak at that time as well. In response to Mayor Ridgeway's question about the state regulatory scheme, City Attorney Burnham said that additional and more specific information will be brought back on what constitutes a state licensed facility, and what rules, if any, the City could apply to a state licensed facility. He said staff can bring back a resolution of intention to initiate amendments, which would be the next step in the process, and from that resolution the Council can pick and chose the amendments to initiate. There would be a number of options available to the Council. Council Member Nichols said he would like to see that done as a Study Session item so that when it is brought back for a hearing the Council would have a pretty widespread knowledge of what it's talking about. He said he does not Volume 56 - Page 665 City of Newport Beach Study Session Minutes February 10, 2004 fully understand the problem. Mr. Burnham said that another option would be to have a Study Session that would go beyond what was discussed today and would deal with the state licensing issues, more specific land use issues and a more specific analysis of the City's code, as well as a review of what other communities are doing. At the evening session the Council could have a resolution on the agenda that would allow them to select whatever option is appropriate, as well as allow additional opportunities for public comment. Mayor Ridgeway spoke in support of that approach and said that the Council needs to know the state regulation scheme and needs to understand the City's zoning code. Council Member Bromberg spoke in support of hearing both on the same evening. City Manager Bludau confirmed that it would be on February 24th. PUBLIC COMMENTS - None. ADJOURNMENT - at 6:06 p.m. The agenda for the Study Session was posted on February 4, 2004, at 3:10 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. c&—h0g City Clerk Recording Secretary Mayor Volume 56 - Page 666 INDEX City of Newport Beach Study Session Minutes February 10, 2004 INDEX THIS PAGE LEFT BLANK INTENTIONALLY Volume 56 - Page 667