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HomeMy WebLinkAbout20 - Code Enforcement & Intense Residential OccupanciesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. go July 10, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Homer Bludau, City Manager 949/644 -3000 or hbludau @city.newport - beach.ca.us SUBJECT: Code Enforcement and Intense Residential Occupancies (IROs) ISSUE: Should the City's approach to Code Enforcement change given greater intensities of residential occupancies in our communities, including boarding houses masquerading as sober living homes and some group homes that may need licensing but do not have it? RECOMMENDATION: 1. Offer direction to the City Manager regarding his suggested approach to Code Enforcement and intense residential occupancies (IROs); and 2. Approve proposed amendments to Council Policy K -9 (Code Enforcement) reflecting changes in Code Enforcement's approach to neighborhood nuisances and Building and Zoning Code violations. DISCUSSION: Parts of Newport Beach have long been characterized by homes, including duplexes, in close proximity to each other. Setbacks are small, sometimes only 3', and properties are long and narrow. West Newport is especially known for these types of residences. These same neighborhoods have tended to attract a more transient population — renters who are college students, recently out of college, and /or who desire a less serene living environment. At the same time, many families share the neighborhood, both because of its relative affordability and its proximity to the beach. Many long -time residents "put up with" the random loud party or late night noise because they enjoy the vibrancy of the area. Further, even long -time residents may move out of their homes in the summer and rent them out for weekly accommodations. These "short -term occupancies" are governed by the City's short -term lodging permits. In recent years, three new uses have found their way to West Newport, the Balboa Peninsula, and other areas of the community. These are: 1. Residential Treatment Facilities licensed by the California Department of Alcohol and Drug Programs (DADP), where one of five different types of drug or alcohol rehabilitation is being offered on -site. These five rehabilitation services are: Code Enforcement and Intense Residential Occupancies July 10, 2007 Page 2 (a) Detoxification; (b) 1 -on -1 Counseling; (c) Group Counseling; (d) Treatment Planning; and (e) Educational Sessions. DADP records (as of April 10, 2007) show that there are 24 DADP - licensed facilities in Newport Beach, including 7 with more than 7 residents, 15 with six or fewer residents, and two with no residents (the latter are outpatient medical offices). 2. Sober Living Homes, where individuals agree to live together in a sober environment, sometimes under some supervision by a home manager, but where none of the five rehab services are offered (if one or more of the 5 services are offered, then the home needs a DADP license). We do not know how many unlicensed (unlicensed by DADP) sober living homes are in Newport Beach - they are not required to register with us. 3. Boarding Houses, where individuals live together — not necessarily in a sober environment — and individually pay rent to a landlord. Our code defines Boarding or Rooming Homes as a residence or dwelling unit, or part thereof, wherein two or more rooms are rented under two or more separate written or oral rental agreements, leases or subleases or combination thereof, whether or not the owner, agent or rental manager resides within the residence (NBMC §20.05.030). Boarding or Rooming Houses are prohibited in all of Newport Beach's residential land use districts (NBMC §20.20.020). Each of these three uses, separate from the traditional party house or short-term occupancy use, brings about some code enforcement challenges. These include: • Determining if a sober living home is actually providing rehabilitative services, thereby needing a DADP license. • Determining if a boarding house is masquerading as a sober living home or residential treatment facility, therefore attempting to remain in a residential district illegally. In addition to these potential code violations, we see the following code enforcement issues in many IROs: • Illegal construction (construction without permits, especially interior walls, doors, windows, kitchens, bathrooms); • Illegal dwelling units (creating a habitable 2ntl, 3'', or 4`" dwelling unit where one is not allowed under the property's zoning); • Operation of a home -based business without a residential business license or permit; • Trash — left in alleys, overflowing cans, cans without lids, infrequent pickup that does not meet the demand of the number of residents in the household; commercial service in a residential neighborhood, cigarette butts left in curbs, gutters, sidewalks, planters; • Crowded side setbacks, limiting or prohibiting the ability of emergency personnel to access a back bedroom in the event of an emergency; • Parking —for facility staff, residents (though many residents of some facilities have lost their drivers licenses and instead use bicycles), house managers; • Garages — because they are being used for storage, garages are often unable to accommodate the parking required under the Code; • Secondhand smoke — neighbors have complained about excessive secondhand smoke from IRO residents. No NBMC provision gives adjacent residents any recourse in this Code Enforcement and Intense Residential Occupancies July 10, 2007 Page 3 matter, except to shut windows and doors or to attempt to work with IRO residents to limit smoking; Profanity — neighbors have complained about excessive swearing or lewd speech by IRO residents; Noise — while party houses may be noisy on Friday and Saturday nights, neighbors adjacent to IROs say that all hours of the day and night may be noisy at an IRO — with loud music, loud profane speech, and more; Transportation and Deliveries. Some IROs centralized transit by picking up and dropping off IRO residents frequently. IROs can also have deliveries throughout the day that a typical business would have — delivering medicines, meals, and laundry. These problems can be compounded by the transitory nature of IRO residents — some residents stay less than a week. Few stay more than 2 -3 months. New residents are constantly being rotated in and out of facilities. Unless house rules are enforced regularly — assuming an IRO has house rules — then neighbors adjacent to IROs have to keep contacting house managers to complain about IRO residents' behavior. Another change we can see coming involves short-term lodgings. As the Council is aware, we will soon bring forward a code amendment on short-term lodging regulations. The amendment will include additional operational conditions on these lodgings, including occupancy limits. Code Enforcement will be obligated to address these when they are adopted. Newport Beach's Code Enforcement Philosophy & History. Our Code Enforcement philosophy is summarized within Council Policy K -9 (Code Enforcement) — generally: • We don't initiate actions based solely on an anonymous complaint. • Inspections on private property (other than what can be seen from the public right -of- way) are not made unless there is sufficient evidence to support the issuance of an inspection warrant. • Complaints must be in writing, identify the reporting party, and state relevant facts. • Complaints are considered to be confidential, with limited or no disclosure of the reporting party's name. • All Code Enforcement actions are done "such that the civil rights of the individual or individuals who are the subject of the investigation are fully protected." Generally, we only respond to private property code issues after a written complaint. There are a few exceptions to that rule, however — illegal signs and banners, illegal vending, encroachments into rights -of -way, observed water quality violations, and more. But an entire neighborhood will not get a review of hedge opacity when a dispute arises with two properties. Another aspect of our philosophy — not written in Council Policy K -9 — has been (generally) to be more compassionate than aggressive in the case of individual homeowners or businesses that seem to have put forth a good faith effort to resolve an issue. This manifests itself in, for instance, a 30 -day grace period for correction of a violation instead of a 7 -day period. And sometimes in an extension to that 30 -day period if the person is genuinely trying to remedy the problem. Or in the issuance of a "Notice of Violation" (with no fine attached) for a first -time offender. Or with a "Knock and Talk" for a business owner who may not have known to tell her awning washers to use a recovery system for their wash water to protect the Bay. As to staffing, as recently as 2002 -03, the City had two code enforcement officers. They reported to the Planning Director. But when regional water quality regulations changed in advance of Fiscal Year 2003 -04, the City increased its level of water quality education, Cade Enforcement and Intense Residential Occupancies July 10, 2007 Page 4 inspection, and enforcement. At the start of FY 03 -04, we created a new Code and Water Quality Enforcement Division (reporting to the two Assistant City Managers) — the Division is responsible for activities like: • Enforcement of the City's Municipal Code, including planning, zoning, business license, signage, refuse, noise, and water quality regulations; • Defending violations before hearing officers and/or the courts; • Compliance with the National Pollutant Discharge Elimination System's (NPDES) reporting requirements, legal responsibilities, and meeting mandates, including field inspections of City facilities, residential, commercial, and industrial properties, and public works projects to ensure protection of water quality; and • Administration of the City's urban runoff reduction plans, including water conservation. The Code and Water Quality Enforcement Team today consists of: • Code and Water Quality Enforcement Division Manager John Kappeler • Code and Water Quality Enforcement Officer Cass Spence • Code and Water Quality Enforcement Officer Shane Burckle • Code and Water Quality Enforcement Officer Matt Cosylion • Code and Water Quality Enforcement Officer Shannon Swafford • Water Conservation Coordinator (vacant) Going Forward. As noted in this staff report, IROs have brought a new dynamic to Newport Beach. The City Manager believes that it's time, too, that Code Enforcement change its philosophy to address the problems that can come with IROs. It is important to note that no Code Enforcement action can be applied in a discriminatory manner. Therefore, to assure the same fairness that Council Policy K -9 provides, this philosophy needs to apply to all IROs and citywide. The new recommended philosophy is as follows: • Severely limiting grace periods, and further limiting extensions; • Requiring an appointment for an inspection set for the day the grace period ends; • Issuing citations daily and on each violation, if appropriate, to ensure faster compliance; • Increasing the monetary fines for illegal construction and illegal dwelling units; • Use of civil court processes for illegal construction and illegal dwelling units; • Having the option to act on an anonymous complaint; • A more active use of Nuisance provisions in NBMC §10.50.020 (see attachments); In addition to the above, the City Manager proposes that the City designate resources and staff to the IRO issue in a more comprehensive, coordinated way. This would be done under the specific direction of his office to assure organization -wide impact to our effort. At least initially, Assistant City Manager Dave Kiff will be assigned a lead position to be assisted by contract Code Enforcement staff, contract Special Counsel, and existing City staff. The IRO Team would do the following: 1. Fairly and proactively implement the new regulations for all IROs via a comprehensive, code enforcement -based investigative approach using the philosophy noted above. 2. Review and enforce all conditions of approval for IROs on any CUP or similar permit. 3. Serve as a liaison for affected residents, including being the focal point for all residents' inquiries. Gather needed information to respond to inquiries on a timely basis in as factual and candid a manner as possible. 4. Convene and direct the City's inter - departmental effort to coordinate IRO actions. Code Enforcement and Intense Residential Occupancies July 10, 2007 Page 5 5. Serve as liaison to other entities, including DADP, IRO operators or managers, County probation, and more. 6. Exchange best practices ideas with other jurisdictions impacted by IROs. 7. Consult with special counsel on implementation actions. 8. Brief the City Council as requested on actions /challenges. 9. Other duties as needed. Organizationally, the division of duties between traditional code and water quality enforcement and special attention given to IROs would look like this: Assistant City Manager Kiff Contract Code Enforcement +help as needed from C &WOE ------ Contract Special Counsei I Liaison Groups Fire, PD, Building, Impacted residents, Planning, C &WQE, IRO managers, City Attorney Reaulat m(DADP) Assistant City Manager Wood Code & WOE Division Mgr Kappeler 4 C &WO Enforcement Officers To accomplish this effectively, Mr. Kiff will have to shed or defer doing many of the things he does today. Where possible, his tasks will be re- assigned to others on a short -term basis. Hopefully, after time, this process will become more effectively managed and the problems associated with our IROs will lessen. At that time, I will consider re- assigning Mr. Kiff back to other efforts. He believes he can be successful and accomplish the community's goals here, and I trust that he has the commitment, knowledge, and background to do that. Environmental Review: Council's approval of this item does not require environmental review. Public Notice: This agenda item has been noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Funding Availability: Council approved $100,000 in start -up funds ($50,000 for contract code enforcement and $50,000 for special legal counsel) for this effort within the FY 2007 -08 budget. Submitted by: Prepared by: L4'Wl�� Z]fw�!� L [t Homer Bludau Dav ff City Manager Assistant City Manager Attachments: Council Policy K -9 (as proposed to be amended) & NBMC on Nuisances Code Enforcement and Intense Residential Occupancies July 10, 2007 Page 6 COUNCIL POLICY K -9 CODE ENFORCEMENT PURPOSE The City of Newport Beach devotes substantial resources to the enforcement of 961Iding, MURiGipal and Z^n 4 ;9its - Ordinances. R �ldi g and Zon:ng -The City's Ordinances are intended to protect and preserve public health and safety, the charm of our residential neighborhoods, and the overall quality of life enjoyed by Newport Beach residents. The City Council understands the importance of enforcing our Ordinances and is committed to doing so. However, enforcement of these Ordinances affects the rights of these citizens who are the subject of complaints or enforcement actions. Accordingly, the City Council directs that all code enforcement activity shall be conducted in accordance with the following: A. The City shai]- netmay initiate anj-a formal code enforcement action based °^,fin anonymous GOFnplai4t on any of the following: • An enforcement officer's observation • A written complaint: • A complaint from an individual that an enforcement officer deems reliable. B. Requests for inspections of private property not open to the general public or not visible from adjoining public or private property shall not be made unless there is sufficient evidence to support the issuance of an inspection warrant for the property that is the subject of the request. C. Written cGode enforcement complaints shall be made .^ ,.,:, ^^ and identify the complainant, specific facts, acts, or events and occurrences which establish the violation and describe any documentation which would establish a violation or is otherwise required bylaw; D. The City considers wxit48R code enforcement complaints to be confidential. The City will use its best efforts to preserve the confidentiality of any complaint with the understanding that the City will be required to disclose the identity of the complainant to the extent necessary- #e obtain required by law; E. All code enforcement activities, including investigative property inspections, requests for consent to inspect, and related activities shall be conducted such that the civil rights of the individual or individuals who are the subject of the investigation are fully protected; and F. The City Council believes that nuisance -type violations (such as noise, trash violations, fire Officers are encouraged to pursue violations aggressively with limited grace periods for compliance, limited use of authorization of additional time after a grace period closes, and criminal penalty authorizations: and ;=G. The provisions of this Policy do not apply to inspections of property requested by the owner or to inspections conducted by the Building Department personnel pursuant to construction being conducted, which is authorized, pursuant to an active permit issued by the Building Department. Adopted - June 26, 1995 Amended - October 10, 2006 Code Enforcement and Intense Residential Occupancies July 10, 2007 Page 7 NBMC §10.50.020 Nuisances It is unlawful and a public nuisance for any person owning, leasing, occupying or having charge or possession of any property in the City, to maintain, permit, cause or allow to exist on such premises, any of the following conditions: A. A fire hazard including but not limited to, any cut or uncut shrub, tree, grass, weeds, vines or other vegetation; combustible refuse or waste; or other flammable material which by reason of its size, manner of growth or location, constitutes a fire hazard to any structure, improvement or landscaping; B. Any swimming pool, spa, pond, fountain or other body of water which is allowed to become stagnant, unsanitary or unsafe or does not comply with the provisions of Chapter 15.09 of Newport Beach Municipal Code; C. The accumulation or storage of automobile parts, rubbish, trash, debris, rubble, broken -up asphalt, lumber, concrete, plaster, tile, rocks, bricks, building materials, crates, cartons, containers, boxes, scrap metal, trimmings from plants and trees, cans, bottles and barrels, D. Vegetation, including but not limited to, trees, shrubbery, grass and plants which is overgrown, dead, decayed or diseased such that it may: 1. Impede or present a danger to pedestrian or vehicular traffic, 2. Interfere with visibility on, or free use of, or access to, any portion of any public sidewalk, street, alley or right -of -way, or 3. Harbor rats, vermin, insects and other situations likely to cause a hazard to the public safety; E. Unsafe, unsightly, or poorly maintained property including but not limited to: 1. Storage or accumulation of household items, except furniture designed for outdoor use, barbecues and plants, on patios, roofs, balconies, and in yards in such a manner as to be visible from a public street, alley, sidewalk or other public right -of -way, 2. Private driveways or walkways maintained in an unsafe condition which create a hazard to pedestrians, 3. Outside storage of any whitegoods, whether operable or not, in any area accessible to children who are not under the care and supervision of the owner or person in charge of the property, 4. Broken windows, or doors, 5. The failure to secure and maintain from public access all doorways, or other openings into vacant or abandoned buildings or structures, 6. Buildings or structures which are partially destroyed, partially repaired, abandoned or which remain in the state of partial construction or disrepair for more than three months, unless the construction and repairs are being accomplished pursuant to an active, open building permit. 7. Buildings, walls, fences or structures upon which the condition of the paint or exterior finish has become so deteriorated as to permit decay, excessive cracking, peeling, chalking, dry rot, warping or termite infestation, 8. Any front yard or landscaped setback area which, due to the lack of turf, other planted material, decorative rock, bark or planted groundcover or covering causes excessive dust or allows the accumulation of debris, 9. Landscaping, grounds, walls, fences, driveways, parking lots, irrigation systems, or sidewalks which are maintained in such a condition so as to become defective, unsightly or unsafe, 10. Deteriorated parking lots, including those containing potholes, cracks, ponds or ridges, 11. Accumulations of grease, oil or other hazardous material on paved or unpaved surfaces, driveways, buildings, walls, or fences, or from which any such material flows or seeps onto any public street, sidewalk, alleyway, or other public or private right -of -way, and 12. The use of materials other than glass (or other rigid transparent or semitransparent material designed for permanent installation in a structure) as a replacement or covering of window panes; Code Enforcement and Intense Residential Occupancies July 10, 2007 Page 8 F. The existence of any unlawful encroachment including signs, play equipment, trash or vegetation, which obstructs or interferes with the free passage or use by the public, of any public sidewalk, street, alley, beach, or other public right -of -way, or which may impede emergency access; G. The use of any machinery or equipment which because of noise, odor, vibration, fumes or discharge constitutes a health or safety hazard; H. A violation of any of the terms or conditions of a use permit granted by the City of Newport Beach I. A violation of any provision of the Newport Beach Municipal Code, J. The parking or storage of any vehicle in the required front yard setback on private property other than in a garage, carport or paved driveway leading to the garage or carport, K. Repetitive, boisterous or unruly conduct by the owner or occupants of the property that occurs on the property when that conduct: (1) is offensive to a person of ordinary sensibility; (2) continues after a written or oral request to terminate the conduct; (3) is offensive to a considerable number of people; and (4) in the opinion of the Enforcement Officer, results in any of the impacts described in Section 10.50.010 of this chapter. BANNAN, GREEN, FBANH & TERZIAN LLP RFCIFIVED 555 SOUTH FLOWER YSTREET. A SUITE 2700 LOS ANGELES, CALIFORNIA 90071 �'RECEiV D A ER AGENDA 2107 JUL 10 PH 1- 40 TELEPHONE (213) 362 -1177 y O FACSIMILE (213) 362 -1ISS PRINTED!' - w .bgftlawxom July 10, 2007 HAND DELIVERY Honorable City Council City Hall 3300 Newport Blvd. Newport Beach, CA 92663 Re: Meetine of July 10, 2007; Agenda Item 20 Honorable Mayor and Members of the Council: This firm represents Sober Living By The Sea ( "SLBTS ") which is a long -term community based operator of facilities in Newport Beach for treatment and recovery of persons suffering from alcohol and drug abuse. The purpose of this letter is to comment on Item 20 on the July 10, 2007 Agenda relating to code enforcement for intense residential occupancies ( "IROs "). We have reviewed the staff report and recommendation on this item and generally applaud the concept of resolving any issues raised by IROs through code enforcement. My client has previously recommended this solution as a means of resolving complaints against operations in such facilities for some time, most recently in the submission by C. Edward Dilkes, Esq. to the Council on May 30, 2007. However, we are troubled by several aspects of the recommendation. Although there is a general reference to other types of facilities, the staff report appears to focus on facilities licensed by the State Department of Alcohol and Drug Programs ( "ADP ") and sober living facilities which need not be so licensed. It appears to us that most of the problems described in the report, primarily related to loud noises and parties, apply to other types of uses arising out of short term residential rentals to persons who are not in any type of treatment or recovery. Every one of the complaints of the types of activities described in the report can apply equally to non -IROs. Yet it appears that the intention of the proposed program is to seek discovery of violations by ADP- licensed facilities and unlicensed sober living homes. We believe that such an approach would not only be discriminatory, and thus in violation of state and federal fair housing laws, we further believe that it would be specifically violative of Health and Safety Code Section 11834.23 with respect to ADP - licensed facilities which require that they be treated the same as single - family residences. Honorable Mayor and City Council July 10, 2007 Page 2 It would be appropriate if similar efforts were to be aimed at resolving similar complaints arising from the residents of single - family homes. But it appears that this is not the case and that all this added effort will be focused on a single group of residences, which by law must be treated as single - family residences, for the apparent purpose of making it as difficult and expensive as possible to operate. We are also concerned with what appears to be a proposed intrusion by city code enforcement personnel on the nature and extent of treatment provided at ADP - licensed facilities. Those facilities are to provide treatment in accordance with state law and ADP regulations subject to ADP - licensure conditions. Only the ADP may enforce this state law and license conditions. It would appear from this report and recommendation that the resources of the City are being mobilized and deployed in the guise of enforcing municipal ordinances but with the underlying intent of applying those efforts in a discriminatory fashion for the purpose of discouraging the operation of facilities serving the disabled and driving them from the community. We hope and trust that this is not the case and that the Council will make clear to the staff that City ordinances are to be enforced in a non - discriminatory and even -handed manner without any underlying intent to achieve a goal otherwise prohibited by law. Sincerely, RICHARD R. TERZIA I'