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HomeMy WebLinkAbout02/24/2014 - Hearing OfficerNEWPORT BEACH HEARING OFFICER MINUTES NEWPORT BEACH HEARING OFFICER MINUTES 100 Civic Center Drive, Newport Beach Corona del Mar Conference Room (Bay E -1st Floor) Monday, February 24, 2014 REGULAR HEARING 9:00 a.m. CALL TO ORDER — The meeting was called to order at 9:05 a.m. Present: Judge John C. Woolley, Hearing Officer Staff Present: Kimberly Brandt, Community Development Director Melinda Whelan, Assistant Planner Jason Guyser, Assistant City Attorney Brittany Ramirez, Department Assistant PUBLIC HEARING ITEMS 02/24/2014 ITEM NO. 1 Ohio House - Reasonable Accommodation Permit No. RA2013 -001 (PA2013 -198) 610 36th Street, upstairs and downstairs unit Council District 1 Summary: A reasonable accommodation application requesting relief from the requirements of Section 20.18.020 (Residential Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code. The applicant requests that the City allow the continued operation of an existing unlicensed residential care facility for up to 10 persons in recovery from alcohol and /or drug addiction and one resident supervisor in an existing duplex at 610 36th Street. The facility is located in the R -2 District, where such uses are not permitted. The property is located in the R -2 (Two - Family Residential) District. Recommended Action: 1) Conduct public hearing; 2) Find this project is not subject to the California Environmental Quality Act (CEQA) pursuant to Section 15270 CEQA Guidelines; and 3) Adopt Resolution No. denying Reasonable Accommodation No. RA2013 -001. CEQA Compliance: The project is categorically exempt under Section 15301 of the State CEQA (California Environmental Quality Act) Guidelines - Class 1 (Existing Facilities). This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (Section 15061.b.3 of the CEQA Guidelines). It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and it is not subject to CEQA. Community Development Director Kimberly Brandt introduced the matter and deferred to staff for a report. Assistant Planner Melinda Whelan provided details of the report including a description of the request, location, existing tenant, and the establishment of the facility; she also reviewed the required findings. Regarding the latter, she reported that staff believed that the findings could not be made due to the noted violation of local laws and the applicant's failure to demonstrate the necessity of this size of facility within the Balboa Peninsula neighborhood. She added that existing and prospective clients have the opportunity to live a sober lifestyle in one of the existing facilities presently authorized by the City within the same residential neighborhood. Ms. Whelan concluded with the staff recommendation that the Hearing Officer deny the request for reasonable accommodation. Based upon his background and experience, Hearing Officer Judge Woolley addressed the matter of reasonable accommodation. He reported that reasonable accommodation applies to the people who have Page 1 of 7 NEWPORT BEACH HEARING OFFICER MINUTES 02/24/2014 signed up for admission into the facility. In addition, as stated in the Ohio House literature, the facility is for the people who are seeking a clean and sober environment in which to reside. Those people have executed an admission agreement with Ohio House and are people who are eligible for reasonable accommodation. Hearing Officer Judge Woolley addressed the order in which the issues will be addressed noting that those who live near the subject property will be allowed to speak first. He stated that the time limit in which to speak is three (3) minutes per person. Subsequently, Ohio House representatives will be allowed to speak. He added that this is not a court hearing so that he will not take evidence or swear anyone in. Hearing Officer Judge Woolley opened the Public Hearing to neighborhood residents. Kevin Gluntz (clarified that there will be no cross - conversations and Hearing Officer Judge Woolley verified that speakers will direct themselves to him. He added that he will not allow one side to cross - examine the other and that speaking times cannot be assigned to others. Additionally, he noted that after receiving all comments, the goal is to make a decision on the matter but that it will not be done today, and that he will not be rushed into making a decision. Brian Gaa, 608 36th Street, reported that the distance between his house and the subject facility is three (3) feet and listed issues of concern including conflicting hours of curfew, inappropriate language, second -hand smoke, noise and litter. He expressed concerns with parking and children's safety issues as well as speeding cars. He stated that he and his neighbors feel strongly that the Ohio House is creating a negative impact on the neighborhood. Mr. Gaa presented a packet of information noting that it included a neighborhood petition. Richard Flory, nearby resident, reported that he has spoken with the House Manager on different occasions, one in which he asked him to slow down, as he was speeding in his vehicle, and another when he was cleaning cigarette butts from the area, and the House Manager told him that residents have the right to smoke wherever they want. Mr. Flory added that facility representatives are not responsive to the neighborhood. Judge Lynne Riddle, 615 36th Street, Retired Federal Judge, stated that she would characterize the information submitted by the applicant as aspirational and not factual. She referenced the facility's mission and noted that it is not what is presented to the neighborhood. She agreed with Mr. Gaa's comments regarding child safety as well as pet safety noting that the neighborhood streets are very narrow and that residents of the facility tend to drive fast in the area. She added that the property backs up to an alley, which is vital to the safety and security of the neighborhood and that often, residents of the facility block the alley with their cars. She complained of litter from cigarette butts and commented on the character of the neighborhood and felt that the facility needs more space. David Kalish, 611 36th Street, complained of second -hand smoke and increased noise from the facility. He reported that sober homes are popping up everywhere and that the area is becoming known as the "sober clinic" kind of neighborhood. He complained of litter from cigarette butts and reported that the facility is inconveniencing everyone in the neighborhood. Hearing Officer Judge Woolley reported spending an hour in the subject neighborhood, yesterday. Kirsten Gaa, 608 36th Street, reported that it appears that the facility's residents have been on their best behavior for the last couple of weeks noting that they have not been congregating on the porch to smoke but rather walk up and down the street. She expressed concerns that once a permit has been issued, they will revert back to their typical behavior. Additionally, she expressed concerns regarding the health and safety of her children and reported she has seen residents vomiting in the area where her children play. Peter Wells, 616 Club House Avenue, reported that he respects the work of the Ohio House adding that his brother is a recovering alcoholic, and he has friends who struggle with substance abuse so that he is not opposed to such groups and the work that they do. However, he reported there have been issues in the neighborhood that have affected everyone and expressed concerns that the group began operating knowing that they did not have the required permits or the correct permissions from the City. He added that when they were interviewed by Code Enforcement, they claimed using one (1) of the units but were actually using both. Page 2 of 7 NEWPORT BEACH HEARING OFFICER MINUTES 02/24/2014 He referenced the factors of consideration and believed that none of them are met. He commented on increased traffic and insufficient parking and stated that he believes the request undermines the City's General Plan. Additionally, he indicated that by granting a permit allowing this use in the neighborhood changes the makeup of the neighborhood from a General Plan and Zoning standpoint. He commented on the number of people living in the facility and expressed concerns with fire /life safety. Thomas (Buzz) Tupman, 609 36th Street, reported that his property can accommodate several cars and that often when the facility has guests, they park on his apron. He complained of increased litter from cigarette butts and reported that cars cannot be pulled up in the driveway because of furniture in the garage. He added that on one occasion someone from the facility came over and asked to borrow a wrench, which he did lend, but stayed with it since the tool is expensive. He reported entering the garage and stated it was a mess and that upon cleaning the drain what came out of it seemed to be a foul -odor chemical. Mark Geller, 602 36th Street, Senior Deputy District Attorney in Orange County, stated he does not know specifically about Ohio House but expressed concerns that if a permit is granted, there may be court- mandated individuals living at this facility, including health and safety violators. He believed that if the facility obtains the permit they are seeking, it could open a slippery slope and it may be difficult to curb any criminal behavior, down the road. Hearing Officer Judge Woolley indicated understanding Mr. Geller's concerns as it relates to the ability of Superior Court Judges who preside over criminal cases sending a violator to a rehabilitation facility such as the subject facility. Lori Morris, resident of 39th Street, expressed her appreciation to Hearing Officer Judge Woolley for allowing a hearing on this matter and noted that the facility is in violation of City Codes and State law and that in no way, should they be in an R2 zone. She expressed concern that when they were established, they knew they were in violation and stated that is typical behavior in that such facilities tend to "test the fences." She added that the operator and owner of the property should be aware that residents cannot continue perpetuating the lie and commented on the affordability of the facility. Hearing Officer Judge Woolley noted that this is not an issue regarding affordable housing and asked how Ms. Morris is impacted as she does not live on 36th Street. He reiterated that no discussions will be had regarding the law. Ms. Morris indicated that she is impacted by the over - concentration of the homes that have been established and abated and expressed support for the neighbors impacted by the facility. Ms. Denys Oberman, 12th and Ocean Front, noted she is a proponent of legitimate recovery programs and reported there is an operator that has a facility in proximity (3206 West Balboa Boulevard) to the subject facility and it operates within the required regulations. She added that there are alternatives to individuals seeking sober living situations. Hearing Officer Judge Woolley presented a summary of comments and concerns from each of the previous speakers who live in the neighborhood. Hearing Officer Judge Woolley allowed Ms. Oberman to clarify her comments. Ms. Oberman pointed out that one similar well- operated compliant facility is located at 3206 West Balboa Boulevard and is operated by Mr. Cullen. Hearing Officer Judge Woolley opened the Public Hearing to the applicant. Kevin Gluntz, representing Ohio House, requested to ask questions of Brian Stump, Owner and Operator of Ohio House. Hearing Officer Judge Woolley stated that he may ask questions of his client but not of the public. Page 3 of 7 NEWPORT BEACH HEARING OFFICER MINUTES 02/24/2014 In response to Mr. Gluntz's question, Mr. Stump discussed the screening process for applicants of Ohio House. He reported that the process includes a telephone or in- person interview, and he listed some of the questions asked. He added that background information and referrals, including from out of the State of California, are verified. Hearing Officer Judge Woolley referenced a document entitled, "Ohio House Admission Agreement" and asked Mr. Stump if he is familiar with the document. Mr. Stump responded affirmatively. Hearing Officer Judge Woolley asked Mr. Stump to identify where in the document the screening questions are located. Mr. Stump reported they are not included in the document and that he does not have anything in writing to support same. Hearing Officer Judge Woolley asked regarding references from areas outside the State, and Mr. Stump reported that he relocated from the State of Ohio to Newport Beach. Hearing Officer Judge Woolley stated he knows of no restrictions from anyone living outside the State of California that is an alcoholic or drug user that prevents that person from moving to a rehabilitation facility in California. However, based upon the way Mr. Stump presented the information, he asked if there is currently anyone that fits that description living in the house that he manages. Mr. Stump responded affirmatively noting that there are seven (7) residents from outside the State of California. Additionally, he reported that a total of nine (9) residents currently live in the facility. In reply to Hearing Officer Judge Woolley's inquiry, he clarified that seven (7) residents came from outside the State but were not referred by out -of -state agencies. Hearing Officer Judge Woolley noted that it is the burden of the operator of this facility to define the handicap for which a reasonable accommodation should be made. In response to Mr. Gluntz's question, Mr. Stump stated that individuals are referred from other treatment centers and that the treatment centers which referred the individuals currently residing in the facility are within the State of California. He reported that the referring facilities are in- patient treatment facilities treating alcohol and drug addiction. Referral sources refer to the Ohio House people that they feel are appropriate for the level of care offered at Ohio House. He added that they are addicts that the referral source has determined could achieve long -term sobriety. Mr. Gluntz asked if the individuals referred to Ohio House are recovering addicts, and Mr. Stump responded affirmatively and added that they are sent to Ohio House for the purpose of continuing their recovery. Mr. Gluntz asked how Ohio House addresses recovery issues, and Mr. Stump stated it does so by the structure in place at the facility. Mr. Gluntz asked Mr. Stump to specify what the structure is. In response to Hearing Officer Judge Woolley's question, Mr. Stump reported that he is the owner of Ohio House. Mr. Gluntz clarified that drug and alcohol addicts go first to an intensive in- patient treatment facility. Hearing Officer Judge Woolley noted he understands, as his father was an alcoholic. He noted that the topic at hand is the complaints of the citizens that there is no control exhibited by the management of the occupants. Page 4 of 7 NEWPORT BEACH HEARING OFFICER MINUTES 02/24/2014 Additionally, he reiterated that he is trying to identify who is entitled to the reasonable accommodation protection, adding that it is not Ohio House or residents in the area but rather the people who have a sufficient handicap that prevents them from living in the neighborhood. He added that he will accept his offer or that of his client, Mr. Stump, but that he must get right to the point of the question. Mr. Gluntz referenced Page 11 of the staff report relative to the applicant not having provided adequate evidence or information regarding the size and type of facility requested as being necessary for the financial viability of the facility. Mr. Gluntz distributed supplemental information for the record. Hearing Officer Judge Woolley noted that Mr. Gluntz presented a list of the rents paid by residents of the facility and ordered it marked as Exhibit A. Mr. Gluntz asked Mr. Stump to provide a general description of the materials submitted. Mr. Stump reported that it is a list of revenue received from the current residents of the facility. He clarified that there are eight (8) paying guests living in the house and noted that the document includes revenue as well as expenses. He added that there are three (3) open beds and that currently the facility is operating at a $1,630 loss. He stated that twelve (12) beds are needed in order to operate the Ohio House at a profit. In terms of the benefits of having more individuals at the house as opposed to less, Mr. Stump stated that an increased number of residents provide added unity and support. He noted that it is best to have a roommate while going through recovery. In response to Hearing Officer Judge Woolley's inquiry, Mr. Stump explained that having more residents in the house is preferable as it unites the household with people going through similar experiences of recovery, and they are able to hold each other accountable. Mr. Gluntz noted he handed Mr. Stump a copy of Attachment F (handwritten Page 89) of the staff report which is a list of City- authorized recover facilities in Newport Beach. Hearing Officer Judge Woolley noted the document is titled, "City- authorized recovery facilities, Newport Beach, as of February 2014" and consists of four (4) pages. Mr. Gluntz referenced Page 10 of the document and noted there are several other facilities in the City which provide sober living environments for six (6) or fewer persons in the R2 zoning district, as alternatives to sober - house living and reported that Edie Johnson) who provides ancillary services to a number of the sober - living facilities is present. He reported he would like her to address what some of the institutions do contending that most of the facilities listed are treatment facilities as opposed to sober - living houses. Mr. Gluntz noted he will question Edie Johnson, operator of Orange County Recover Services. Regarding Sober Living by the Sea, Mr. Gluntz asked if she understands it to be a sober - living facility. Ms. Johnson stated that it is her understanding that Sober Living by the Sea is an in- patient treatment center. She added that Pacific Shores Recovery is a treatment center but noted that a lot of treatment centers also offer sober living in nearby facilities. Ms. Johnson listed Ocean Recovery and Balboa Horizon as treatment centers. She stated that she does not know whether those remaining on the list are treatment centers or sober - living facilities. Mr. Gluntz asked Mr. Stump whether he is aware of others that are treatment centers, which are included in the list. Mr. Stump stated that is all. Hearing Officer Judge Woolley stated that public speakers had forty (40) minutes of time, noted the current time and instructed Mr. Gluntz to proceed expeditiously. In response to Mr. Gluntz's question regarding the length of time that residents would stay in his facility, Mr. Stump reported all of his guests moved in during August and November 2013, except for one (1) who moved into the facility in October, 2013, and another who moved into the facility in February 2014. Page 5 of 7 NEWPORT BEACH HEARING OFFICER MINUTES 02/24/2014 Mr. Gluntz reported there was a written statement made that guests were transient and moved in and out on a monthly basis. He stated that he is able to offer redacted agreements showing how long each guest has lived in the facility. Mr. Gluntz referenced Pages 101 and 102 wherein statements are made that residents change every two (2) weeks and that renting space to twelve (12) individuals occurs within certain periods of time. Mr. Gluntz noted that the terms of residence are for six (6) months, if not longer. Hearing Officer Judge Woolley noted wanting to address the handicap and the reasonable accommodations to allow the handicapped person to live in the neighborhood. Mr. Gluntz reported that Ms. Johnson provides drug- testing to individuals who live in Ohio House and asked her if she provides testing to some or all of the individuals. Ms. Johnson responded that she provides drug- testing to all individuals living in Ohio House. She added that drug- testing is done randomly, twice weekly. She reported starting drug- testing services as soon as each individual moved into Ohio House and that she has never received a test indicating that they have used alcohol or drugs, adding that they have been consistently sober. Mr. Gluntz reported that neighbors' concerns are valid and referenced a previous comment that the residents have been at their best behavior recently. He asked Mr. Stump to address "goings on" at the house. Ryan Stump, Director of the Ohio House, reported that he brings an empathic approach to recovery, as a whole. He stated he has lost many friends to the disease of addiction and has seen many family members and friends struggle with the disease. He stated that he helps residents' loved ones understand that residents need the support provided at Ohio House. Mr. Gluntz asked what efforts have been recently undertaken at the Ohio House to address specific concerns regarding parking, smoking, and noise. Mr. Ryan Stump reported that they have moved the smoking area from the patio into the garages and have moved tables and chairs from the garage to where there are only electronic cigarettes being used. He added this occurred in January. He stated that he understood that the City viewed that as the smoke not drifting towards the surrounding neighbors. He clarified that moving tables and chairs from the garage freed up one (1) parking spot so that cars are now only being parked inside the garage. He reported there are two (2) cars connected with the facility and that they park inside the garage. He added that Ohio House purchases electronic cigarettes for all of its residents and that a requirement was made for residents to cease smoking cigarettes in the house or within the property lines in January, 2014. Mr. Stump reported receiving no complaints from the City regarding speeding cars. Now that he is knowledgeable of that fact, he stated he would rectify the matter. Mr. Gluntz noted that in discussions, Mr. Stump stated that he increased the monitoring of the house by requiring seven (7) or eight (8) individuals not associated directly with the house to come check it during the day. This continues to be done on an on -going basis. There were no others wishing to speak on behalf of the Ohio House. Community Development Director Brandt clarified that the application is for a ten (10) client facility, not a twelve (12) client facility. She provided clarification to Exhibit F contained within the staff report, beginning on handwritten Page 89, noting that it is a listing of all of the City- approved residential care facilities within the City of Newport Beach and includes a column specifying whether a facility is licensed by the State of California through their alcohol and drug program which is indicated by a 'Y'- this type of facility may or may not include medical treatment — or the facility is unlicensed as indicated by an "N" and is therefore operating as a sober - living or group home facility where no medical treatment is allowed. She added that Sober Living by the Sea has both licensed and unlicensed facilities permitted by the City of Newport Beach. Page 6 of 7 NEWPORT BEACH HEARING OFFICER MINUTES 02/24/2014 Hearing Officer Judge Woolley stated it is his understanding that the facility in question at this time (Ohio House) never made an application to the State of California. Ms. Brandt confirmed so. She added that some of the operators approved by the City have both licensed and unlicensed facilities. Mr. Gluntz referenced Page 54 of the staff report clarified that currently there are six (6) beds in one half of the house and five (5) in the other. Both parties submitted the matter to the Hearing Officer for ruling and Hearing Officer Judge Woolley reported that he will have a ruling by Friday, February 28, 2014. Hearing Officer Judge Woolley thanked everyone who attended and concluded the hearing. III. PUBLIC COMMENTS ON NON - AGENDA ITEMS - None IV. ADJOURNMENT The hearing was adjourned at 11:00 a.m. The agenda for the Hearing Officer meeting was posted on February 13, 2014, at 4:20 p.m. in the Chambers binder located inside the vestibule of the Council Chambers at 100 Civic Center Drive and on the City's website on February 13, 2014, at 4:45 p.m. Director MIR Kimbe rly .MAM Page 7 of 7