HomeMy WebLinkAbout05 - Supporting Restoring Local Authority in the Regulation of Group Residential Uses - CorrespondenceReceived after Agenda Printed
September 27, 2022
Item No. 5
From: City Clerk"s Office
To: Mulvey, Jennifer; Rieff, Kim
Subject: FW: Comments re. City Council Agenda Item 5 - Council Session Sept. 27 2022
Date: September 26, 2022 2:29:42 PM
From: Denys Oberman <dho@obermanassociates.com>
Sent: Monday, September 26, 2022 2:29:30 PM (UTC-08:00) Pacific Time (US & Canada)
To: Dept - City Council<CityCouncil@newportbeachca.gov>; City Clerk's Office
<CityClerk@newportbeachca.gov>; Leung, Grace <gleung@newportbeachca.gov>
Cc: Laura Curran <lauracurran@me.com>; william lyon <ablyon@sbcglobal.net>; Lynette Luis
<lynette_luis@dell.com>; Erica Keane <ericaakeane@gmail.com>; Steve Fusswinkel
<sfusswinkell@gmail.com>; dho@obermanassociates.com <dho@obermanassociates.com>
Subject: FW: Comments re. City Council Agenda Item 5 - Council Session Sept. 27 2022
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
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To City Council and City Clerk:
I am hereby Recalling my prior correspondence, and replacing it with the Comments below, which
include a minor edit.
Please confirm receipt.
Thank you,
Denys Oberman
Regards,
Denys H. Oberman, CEO
110BERMAN
Sftcdogr and FVKmc" hd+«sors
OBERMAN Strategy and Financial Advisors
19200 Von Karman Avenue, 6th Floor
Irvine, CA 92612
Tel (949) 476-0790
Cell (949) 230-5868
Fax (949) 752-8935
Email: dho e_obermanassociates.com
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From: Denys Oberman <dho(@obermanassociates.com>
Sent: Monday, September 26, 2022 2:23 PM
To: Denys Oberman <dho(@obermanassociates.com>
Subject: RE: Comments re. City Council Agenda Item 5 - Council Session Sept. 27 2022
Regards,
Denys H. Oberman, CEO
flOBERMAN
SIV00W pry FVXVVc,ai dviunr
OBERMAN Strategy and Financial Advisors
19200 Von Karman Avenue, 6th Floor
Irvine, CA 92612
Tel (949) 476-0790
Cell (949) 230-5868
Fax (949) 752-8935
Email: dhoQobermanassociates.com
CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the
sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are
not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance
on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error, please notify us
immediately at 949/476-0790 or the electronic address above, to arrange for the return of the document(s) to us.
From: Denys Oberman <dhoCcDobermanassociates.com>
Sent: Monday, September 26, 2022 2:17 PM
To: CityCouncilCcDnewportbeachca.gov; cityclerk(@newportbeachca.gov;
gleung(@newportbeachca.gov
Cc: Laura Curran <lauracurran(@me.com>; Lynette Luis <Ivnette_luisccDdell.com>,- Erica Keane
<ericaakeane(@gmail.com>; william lyon <ablyonPsbcglobal.net>; Steve Fusswinkel
<sfusswinkeI1(@gmail.com>; dhoCcDobermanassociates.com; Fred Levine
<fredric.mark.levine��mail.com>
Subject: Comments re. City Council Agenda Item 5 - Council Session Sept. 27 2022
PLEASE DISTRIBUTE TO THE CITY COUNCIL MEMBERS AND THE PUBLIC, AND ENTER INTO THE
PUBLIC RECORD.
Mayor and Members of the City Council:
I am submitting this comment in connection with the proposed Resolution No. 2022-84 Supporting
Restoring Local Authority in the Regulation of Group Residential Uses,
before the City Council on Sept. 27,2022, Session Agenda Item #5.
Our comments are below:
1. We appreciate that the City Council expresses commitment to,, call on the State of California
to Increase its Oversight and Enforcement of Residential Care facilities.
2. We take exception and object to the proposed position that, the City can do nothing to
regulate state licensed and unlicensed residential care businesses of any size that are ,
Integral Facilities/Integral Uses.
The City has Ordinances on the books which provide definitions for, and ability to
regulate Integral Facilities /integral Uses. These ordinances are applicable to state
licensed and unlicensed facilities that are operating in an Integral manner.
There are no published Court orders which preclude the application and enforcement of
Integral facilities to the City of Newport Beach . City staff and representatives persist in
erroneously referred to "Judge Selna's 2008 order " as reason that the City cannot
enforce its Ordinances pertaining to Integral Facilities. We object to these statements as
inaccurate and misleading, based on the following:
In 2008, the residential care and sober living facility business operator„ Sober Living by
the Sea ( SLBTS) filed a lawsuit against the City of Newport Beach. During the course of
this proceeding,in 2008 the presiding Judge Selna issued a temporary order of injunction
staying the City's ability to actively enforce the provision of its 2008 05 Ordinances
pertaining to,lntegral facilities.
In late 2008/early 2009, Sober Living by the Sea and the City of Newport Beach
negotiated settlement of this lawsuit. As part of the Settlement, SLBTS agreed to
"dismiss the Action in its entirety without prejudice", and to "dismiss or abandon
without prejudice the appeal taken from the order partially granting and partially
denying Sober Living's motion for a preliminary injunction,and... affirmatively request
that HUD and the U.S. Dept of Justice take no further action based upon the HUD
Complaint. ( excerpt taken from Settlement and Release , List of Agreements and
Related Document of April 2009 )
It was agreed that the Dismissal of the case would be completed and effective at such
time as the City passed ordinance including, Zoning Implementation and Public Benefit5
Agreement memorializing specific terms of the Settlement including provisions for
SLBTS' continued business operation in the City. This Ordinance was passed by the City
In April, 2009, and action was taken to dismiss the case SLBTS v. City of Newport Beach.
Stipulations were filed with the Court to dismiss the case in its entirety on October 23,
2009. Orders confirming dismissal and termination of the case in its entirety were filed
by the Court and entered on October 29,2009.
( ref, Court docs. #89. 8.08-cv-0200 JVS-RNB).
The case was dismissed and terminated in its entirety. There is no Court action any
longer which prevents the City from enforcing its Ordinances re. group residential uses,
which include provisions regarding Integral facilities/integral uses.
The Agreements pertaining to the above- reference settlement and dismissal of lawsuits
and Court actions are all matters of public record. Documents are readily available in
the public domain and through the Court.
The City CAN regulate its residential care and sober living business uses. It CAN regulate
the Integral facilities provisions as defined in its current Ordinances.
The City has CHOSEN NOT TO REGULATE THESE USES.
It would appear, with the proposed Resolution, and the statement of City Atty in City
meeting of August 23, 2022 that the City "can, but chooses not to, enforce its
ordinances"( Ref. meeting video).
It would appear that the City is defaulting its duty to protect the health and safety of
those seeking recovery assistance from business operators, as well as other residents in
the community ---- is the City punting to the State, and wrongfully disclaiming
responsibility and ability to act pursuant to its Ordinances... at adverse impact to the
health and safety of addicts in facilities seeking recovery assistance, and the residents
and community at large.
We request that the City Council direct staff to :
1. Modify the proposed Resolution to reflect its action towards the State regarding its
regulatory and enforcement responsibilities; and,
2. immediately, recognize and actively enforce its current Ordinances on the book,
including provisions applicable to Integral facilities/integral uses, and including
Operators not complying with local or state law.
Thank you.
Denys Oberman, Resident of Newport Beach
Cc: members of Newport Beach ad hoc committee, members of Concerned Citizens of Newport
Beach , various other stakeholders at interest
(Note: please disregard the parties and notices, below as those are not relevant to this matter).
Regards,
Denys H. Oberman, CEO
flOBERMAN
Slvcdogy prod VXVnc"i Advkuns
OBERMAN Strategy and Financial Advisors
19200 Von Karman Avenue, 6th Floor
Irvine, CA 92612
Tel (949) 476-0790
Cell (949) 230-5868
Fax (949) 752-8935
Email: dhoe-obermanassociates.com
CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the
sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are
not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance
on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error, please notify us
immediately at 949/476-0790 or the electronic address above, to arrange for the return of the document(s) to us.
Received after Agenda Printed
September 27, 2022
Mulvey, Jennifer
Item No. 5
Subject: FW: For Council meeting - Drug and alcohol group homes
From: Laura Curran <lauracurran@me.com>
Sent: September 26, 2022 11:16 PM
To: Dept - City Council <CityCouncil@newportbeachca.gov>
Cc: Brown, Leilani <LBrown@newportbeachca.gov>
Subject: For Council meeting - Drug and alcohol group homes
City Council
Thank you for putting forward a resolution to express support to state legislators for cities Iln their efforts to enforce
existing regulations related to Drug and Alcohol group homes and address the impacts on cities and neighborhoods.
Efforts to address the issues are always welcome.
However the resolution as stated is superficial and misses the real challenges that we have faced in Newport Beach over
the last 16 years.
We need the city to enforce the existing laws, and vigorously assert with the state Agencies, State Auditor, and the State
Attorney General regarding existing violations of Drug and alcohol group home legislation legislation.
1. Aaron Harp, City Attorney has refused to enforce existing regulations currently in place related to group homes. For
example in the August 23, 2022 study session he stated that if an drug home operator is operating without a license he
will not cite them or close them down, because "they'll probably get a license in 30 days anyway. "
2. City attorney has refused to enforce regulations at the city level, or file actions with the state, Departnent of Health
Care Services, when drug rehab operators violate the existing Regulations which prohibit integral facilities operating in
R2 zones, in violation of the city's regulations.
As a result operators which operated in violation of the Integral facilities Regulation II have been able to continue to
operate. In several cases, facilities have later been cited for overcrowding, failure to supervise, and treating people who
are not patients.
3. City staff and council have refused to pursue any assertive action with state or County agencies, telling residents "
Department of Health Care Services doesn't respond."
4. Commitments to hire advisory firms with extensive experience and a strong track record, are still "in the works "after
almost a year. Meanwhile Costa Mesa has successfully passed legislation related to group homes which has been
affirmed by the Ninth Circuit Court of Appeals.
The city shows tremendous skill in addressing issues such as the oil spill, regulations for Short term lodging, dredging,
housing element, homelessness, and other issues.
It is frustrating and confounding that on this issue the city staff and Council throw up their hands and say they are
powerless.
Thank you
Laura Curran
Received after Agenda Printed
September 27, 2022
Item No. 5
From: City Clerk"s Office
To: Mulvey, Jennifer; Rieff, Kim
Subject: FW: City ordinance and enforcement of Integral facilities
Date: September 27, 2022 9:21:47 AM
Attachments: City of Costa Mesa SL1805.pdf
City of Costa Mesa Letter 1897 orange Unit A.pdf
From: Luis, Lynette <Lynette. Luis@dell.com >
Sent: Tuesday, September 27, 2022 9:21:24 AM (UTC-08:00) Pacific Time (US & Canada)
To: Dept - City Council<CityCouncil@newportbeachca.gov>; City Clerk's Office
<CityClerk@newportbeachca.gov>; Leung, Grace <gleung@newportbeachca.gov>
Cc: Laura Curran <lauracurran@me.com>; william lyon <ablyon@sbcglobal.net>; Erica Keane
<ericaakeane@gmail.com>; Steve Fusswinkel <sfusswinkell@gmail.com>; Denys Oberman
<dho@obermanassociates.com>
Subject: City ordinance and enforcement of Integral facilities
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
content is safe.
FOR THE PUBLIC RECORD: ENFORCEMENT OF ORDINANCES RE INTEGRAL FACILITIES
Mayor and Council Members:
Thank you for recognizing that City enforcement of its Ordinances, including sections pertaining to
Integral Facilities is very important ---
Both to those individuals seeking treatment, and for maintaining the safety and integrity of our
residential neighborhoods.
It is within the control of the City to require that residential care business operators comply with all
applicable local, county, and state regulations.
The City seems reluctant to exercise its rights and protect the community.
Please see the attached documents which reflect the City of Costa Mesa's ordinances, in particular
as regard to Integral Facilities. Also, please see the City of Costa Mesa integral facility definition
below.
Reminder that the City of Costa Mesa's ordinances were upheld by the CA ninth circuit, and that the
case associated with Judge Selna's temporary stay of Newport Beach's 2008 Ordinances was settled
and dismissed by the Court in 2009.
There is no reason why the City cannot enforce its Ordinances pertaining to state licensed and non -
licensed businesses.
Thank you.
Lynette Luis
Cc: all
City of Costa Mesa definition of integral facilities:
Integral facilities. Any combination of two or more group homes which may or may not be located
on the same or contiguous parcels of land, that are under the control and management of the same
owner, operator, management company or licensee or any affiliate of any of them, and are
integrated components of one operation shall be referred to as Integral Facilities and shall be
considered one facility for purposes of applying federal, state and local laws to its operation.
Examples of such Integral Facilities include, but are not limited to, the provision of housing in one
facility and recovery programming, treatment, meals, or any other service or services to program
participants in another facility or facilities or by assigning staff or a consultant or consultants to
provide services to the same program participants in more than one licensed or unlicensed facility.
Integral uses. Any two or more residential care programs commonly administered by the same
owner, operator, management company or licensee, or any affiliate of any of them, in a manner in
which participants in two or more care programs participate simultaneously in any care or recovery
activity or activities so commonly administered. Any such integral use shall be considered one use
for purposes of applying federal, state and local laws to its operation.
Internal Use - Confidential
CITY
OF
COSTA
MESA
P.O. BOX 1200
- 77
FAIR DRIVE - CALIFORNIA 92$28-
DEVELOPMENT SERVICES DEPARTMENT
January 10, 2019
SENT VIA UNITED STATES POSTAL SERVICE AND ELECTRONIC MAIL
Brandon Stump
The Ohio House, LLC
234 E. 17th Street
Costa Mesa, CA 92627
RE: SPECIAL USE PERMIT NUMBER SL-18-05
2175 TUSTIN AVENUE, UNIT A, COSTA MESA
NOTICE OF DENIAL
Dear Mr. Stump:
Thank you for submitting your application for the City of Costa Mesas Sober Living Home
Special Use Permit (SUP) to operate a sober living home with six or fewer beds at 2175
Tustin, Unit A. The Development Services Department has thoroughly reviewed your
application and related information found in the City's records.
As you are aware from the letter from staff dated September 21, 2018, the facilities at 2175
Tustin, Unit A and 2175 Tustin, Unit B are considered integral facilities. This determination
is made based upon the information on file for applications # SL-18-05 and # SL-18-06. The
applications for the two units located on the same parcel show that Ohio House, LLC is the
facility owner for each unit, both of which include the same set of house rules and the same
house manager.
Costa Mesa Municipal Code (CMMC) section 13-6 defines integral facilities and uses as:
Integral facilities. Any combination of two (2) or more group homes which may or
may not be located on the same or contiguous parcels of land, that are under the
control and management of the same owner, operator, management company or
licensee or any affiliate of any of them, and are integrated components of one (1)
operation shall be referred to as integral facilities and shall be considered one (1)
facility for purposes of applying federal, state and local laws to its operation.
Examples of such integral facilities include, but are not limited to, the provision of
housing in one (1) facility and recovery programming, treatment, meals, or any
other service or services to program participants in another facility or facilities or
by assigning staff or a consultant or consultants to provide services to the same
program participants in more than one (1) licensed or unlicensed facility.
Integral uses. Any two (2) or more residential care programs commonly
administered by the same owner, operator, management company or licensee,
or any affiliate of any of them, in a manner in which participants in two (2) or
more care programs participate simultaneously in any care or recovery activity
or activities so commonly administered. Any such integral use shall be
considered one (1) use for purposes of applying federal, state and local laws
to its operation.
Integral group home facilities are not permitted per CMMC 13-311(a)(7). Further, because
integral uses are considered one use under the CMMC, this use would require one CUP,
not individual SUPs. Therefore, pursuant to CMMC 13-311(b), your application is
DENIED based on a determination that it is for an integral facility and/or use which is not
permitted pursuant to the City's requirements for group homes with six or fewer beds in an
R2-MD Zone.
This DENIAL can be appealed to the Planning Commission by filing an application for
appeal with the City Clerk. Any appeal must be filed within seven (7) days of this date of
denial, which is January 17, 2019, by 5:00 p.m., pursuant to CMMC Sections 2-305(2) and 2-
307. A fee of $3,825.00 must accompany the application. In your request for an appeal, please
summarize the reasons for the appeal. If the application for appeal is not submitted by the
deadline, your time to appeal will have expired.
Should you have any questions, please do not hesitate to call Katie Angel at 714.754.5618
between the hours of 8:00 a.m. and 5:00 p.m.
Bart' Burts, AICP
Economic and Development Services Director
cc: Jennifer Le, Assistant Development Services Director
Fidel Gamboa, Community Improvement Manager
Willa Bouwens-Killeen, AICP, Zoning Administrator
Katie Angel, Management Analyst
CITY
OF
COSTA
MESA
P.O. BOX 1200
- 77
FAIR DRIVE - CALIFORNIA 92628'
DEVELOPMENT SERVICES DEPARTMENT
January 24, 2019
SENT VIA UNITED STATES POSTAL SERVICE AND ELECTRONIC MAIL
Kathryn Nurmberg
LEAD Recovery Transitional Living Center, LLC
3151 Airway Avenue, F107
Costa Mesa, CA 92626
RE: SPECIAL USE PERMIT NUMBER SL-16-10
1897 ORANGE AVENUE, UNIT A, COSTA MESA
NOTICE OF DENIAL
Dear Ms. Nurmberg:
Thank you for submitting your application for the City of Costa Mesa's Sober Living Home Special
Use Permit (SUP) to operate a sober living home with six or fewer beds at 1897 Orange Avenue,
Unit A under LEAD Recovery Transitional Living Center, LLC. The Development Services
Department has thoroughly reviewed your application and related information found in the City's
records. Your application is denied pursuant to City of Costa Mesa Municipal Code (CMMC)
requirements for group homes with six or fewer beds in a R2-HD Zone. CMMC section 13-
311(b)(6) provides in relevant part that a special use permit for a sober living home shall also be
denied upon a determination by the director under the following circumstance:
iii_ The sober living home, as measured by the closest property lines, is located within six
hundred fifty (650) feet of any other sober living home or state licensed alcoholism or drug
abuse recovery or treatment facility. If a state licensed alcoholism or drug abuse recovery
or treatment facility moves within six hundred fifty (650) feet of an existing sober living home
this shall not cause the revocation of the sober living home's permit or be grounds for
denying a transfer of such permit.
Staff found that LEAD Recovery Transition Living Center, LLC is also currently operating a state
licensed residential detoxification facility at 1897 Orange Avenue, Unit B located on the same
parcel and within 650 feet of the subject sober living home listed in SUP application # SL-16-10.
Although the application is denied due to the separation conflict between the two facilities, it also
appears as though the facilities may be operating as integral facilities.
Costa Mesa Municipal Code (CMMC) section 13-6 defines integral facilities and uses as:
Integral facilities. Any combination of two (2) or more group homes which may or may not
be located on the same or contiguous parcels of land, that are under the control and
management of the same owner, operator, management company or licensee or any
affiliate of any of them, and are integrated components of one (1) operation shall be
referred to as integral facilities and shall be considered one (1) facility for purposes of
applying federal, state and local laws to its operation. Examples of such integral facilities
include, but are not limited to, the provision of housing in one (1) facility and recovery
programming, treatment, meals, or any other service or services to program participants
in another facility or facilities or by assigning staff or a consultant or consultants to provide
services to the same program participants in more than one (1) licensed or unlicensed
facility.
Integral uses. Any two (2) or more residential care programs commonly administered
by the same owner, operator, management company or licensee, or any affiliate of
any of them, in a manner in which participants in two (2) or more care programs
participate simultaneously in any care or recovery activity or activities so commonly
administered. Any such integral use shall be considered one (1) use for purposes of
applying federal, state and local laws to its operation.
Integral group home facilities are not permitted per CMMC 13-311(a)(7). Because integral
uses are considered one use under the CMMC, a Conditional Use Permit would be required to
operate a facility with seven or more residents.
This DENIAL can be appealed to the Planning Commission by filing an application for appeal
with the City Clerk. Any appeal must be filed within seven (7) days of this date of denial, which is
January 31, 2019, by 5:00 p.m., pursuant to CMMC Sections 2-305(2) and 2-307. A fee of $3,825.00
must accompany the application. In your request for an appeal, please summarize the reasons for
the appeal. If the application for appeal is not submitted by the deadline, your time to appeal will have
expired.
Should you have any questions, please do not hesitate to call Katie Angel at 714.754.5618 between
the hours of 8:00 a.m. and 5:00 o.m.
CID
Economic and Development Services Director
cc: Jennifer Le, Assistant Development Services Director
Fidel Gamboa, Community Improvement Manager
Willa Bouwens-Killeen, AICP, Zoning Administrator
Katie Angel, Management Analyst