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HomeMy WebLinkAbout01 - Supplemental ItemsSTEVEN G. POLIN, ESQ. Attorney At Law "RECEIVED AFTER AGENDA PRINTED:" I I SENT VIA ELECTRONIC MEAN David Hunt, Esquire City Attorney City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Mr. Hunt, I -11-amb November 27, 2009 3034 TENNnoN ST. N.W. WASHINGTON, D.C. 20015 TEL (202) 331 -5848 FAx (202) 537 -2986 SPOLIN2@E maiKK.NEr Re: Appeal of Yellowstone Women's First Step House, Inc. RA 09- 004 -007 On November 25, 2009 (the night before Thanksgiving), counsel for Yellowstone Women's First Step House, Inc.(hereinafter "Yellowstone ") was served with the City of Newport Beach's staff report to the City Council in reference to the appeal mentioned above. Catherine Wolcott of your staff emailed me at approximately 7:46 p.m. (e.s.t.) to advise me that the reports and attachments were available for downloading at the City of Newport Beach's website. Please be advised that Yellowstone is hereby amending its request for a reasonable accommodation as follows: 0 Yellowstone is requesting areasonable accommodation that will allow it to maintain a maximum occupancy of 12 residents at 1561 Indus Street, 1621 Indus Street; 1571 Pegasus Street; 20172 Redlands Drive, plus a live in manager for 1621 Indus Street and 20172 Redlands Drive. 1561 Indus and 1571 Pegasus are chartered as Oxford Houses and in accordance with the Oxford House model, the house is democratically run, financially self - supported, and immediately expels any resident that relapse. The democratic aspect of an Oxford House prohibits the use of a house manager as the residents make all the decisions relating to the household, including the filling of vacancies. • Yellowstone is requesting as a reasonable accommodation that the City will treat each of houses of its as a "single housekeeping unit" by waiving the requirement that all of the residents be on a single lease as required in the definition of that term in NBMC §20.03.030. • Yellowstone is requesting that the City apply all building, zoning, fire and life safety codes to each of houses (other than those codes that are applicable to state licensed six and under residential treatment facilities) in the same mannerthose code provisions are applied to either "single David Hunt, Esquire Page 2 November 27, 2009 housekeeping units" or "single family uses." In addition, Yellowstone is requesting that the City grandfather in the fire clearances Yellowstone received from Orange County for its houses prior to the City's annexation of the Santa Ana heights in January, 2008. • Yellowstone requests waiver ofthe occupancy limitation oftwo persons per bedroom plus one staff member to determination maximum occupancy per house.' Yellowstone offers its residents fellowship and the existence of a structured setting where zero tolerance of alcohol and drug use is enforced. Moreover, residence at Yellowstone offers the residents the sense of community with similarly situated persons in recovery and the opportunity to reside in a stable alcohol and drug free environment. In addition, Yellowstone offers its residents a self -paced recovery option and which gives each resident sufficient time for personal psychological growth while avoiding the use of alcohol and other mood altering substances. Yellowstone differ from other recovery programs because it allows each resident to gain stability in their lives, and sufficient time for change and personal growth at their pace as long as they follow the rules of residency. Residency in at Yellowstone gives the recovering alcoholic and drug addict an opportunity to become a responsible, productive member of society, which is a goal the City should embrace. Those not stricken with the disease of alcoholism or drug addiction often do not understand the need to be around others who are striving for the same thing, learning to live on life's terms without the need to use alcohol or drugs. "Little things" most members of society take for granted are often new or relearned behavior for persons in recovery. These "little things" often include learning that getting up every morning and going to work on time every day will result in getting a pay check at the end of the week. This new or relearned behavior is embraced as a cornerstone of the residents' recovery. Without a housing program such as that offered by Yellowstone it is highly doubtful that its residents could live independently without relapsing into active alcoholism and drug addiction. Oxford House, Inc. assists in the establishment of housing for recovering addicts and alcoholics that is financially self-supported, democratically run, and immediately expels anyone who uses drugs or alcohol, inside or outside the house. There is no paid staff, counseling, therapy, or house manager involved in the operation of the house. In an Oxford House the group behaves like any family and makes group decision based on democratic procedures. Oxford House is nothing more than a single family residence. Oxford House residents are encouraged to rent single family dwellings located in good neighborhoods. This means Oxford Houses are usually located in areas zoned for single family dwellings. 'Such a limitation is a violation of the Fair Housing Act since this occupancy requirement is not applied to related persons. City of Edmonds v.Oxford House, Inc. 514 U.S. 725(1995) David Hunt, Esquire Page 3 November 27, 2009 Oxford Houses are not substance abuse centers, halfway houses, shelters nor community care facilities. There is not treatment, counseling, therapy, or any type of health care service provided. Oxford Houses are not licensed by the State of California nor are they required to be licensed. In an Oxford House, as opposed to a halfway house, residents live there by choice. There is no house manager, paid staff or other type of institutional personnel involved in the supervision or management of the house. All decisions relating to the functioning of an Oxford House are made democratically. An Oxford House manages its own finances and has its own bank account. There is no testing for alcohol or drug use, nor are there any rules relating to curfews. Oxford Houses are not halfway houses, nor are they a substitute for halfway houses. Oxford Houses are neither rooming nor boarding houses. The residents of Oxford House - Keystone Manor (1561 Indus) and Oxford House - Pegasus (1571 Pegasus) rent the entire premises . rather than a single room. They have access to the entire house and all of the household facilities, and live in the house as any other group of unrelated persons functioning as a single housekeeping unit. The residents of the hous share all household responsibilities, including financial responsibility for the rent and utilities, which they pay out of a single household checking account. They also share in the cooking, shopping, cleaning and general care of the premises. The residents live together purposefully to create a "family" atmosphere, where all aspects of domestic life are shared by the residents. There are no special locks on the doors of the bedrooms. There is not staff, paid or otherwise, living in the house or overseeing the house, and no treatment or professional services provided at the premises. Physically, the house is no different from any other single family house in the neighborhood. It is simply a single family dwelling that is being rented by a group of individuals. The lease is between the landlord and the residents of Oxford House. Oxford House - Keystone Manor and Oxford House - Pegasus is in effect, an unincorporated association composed of the residents who reside each Oxford House. Thus, there is a direct landlord- tenant relationship between the actual residents of the premises and the landlord. More important, there is no third party making any decision regarding the way these houses operate, who resides in the house or how the houses are to be run. On the contrary, it is the residents themselves who are making all of these decisions. Moreover, is there not an owner or operator at the premises who makes decision regarding who lives in premises and how the premises would function. Further, all of the household expenses, including rent, utilities and basic household supplies, are paid for by only the residents. The payments are all equal, regardless of the size of the room, since each resident is leasing the entire house, not just a room. The landlord is paid one monthly check for rent, which reflects the rent for the entire house. Finally, if there is a vacancy, the residents decide if they wish to fill it, and if so, the identity of the new occupant. As should be obvious, not only is there no "operator" making decision regarding the running of the premises but rather the owner has absolutely nothing to do with the identity of the new individuals residing at the house, or how long the individuals stay at the house (other than simply David Hunt, Esquire Page 4 November 27, 2009 establishing the lease for the entire property). All of these decisions are made exclusively by the tenants who are renting the premises. In sum, for the same reasons asserted, we submit that the use of Oxford House - Keystone Manor and Oxford House - Pegasus, (which is based on the same model of self -run, self- supported shared living as an intentional "family ") is likewise not a community care center, rooming or boarding house, group home or halfway -house under any applicable definition. See Oxford House - Evergreen v. City of Plainfield, 769 F. Supp. 1329 (D. N.J. 1991)(Oxford House is not a halfway house. Residents share more than "household responsibilities" and meals. The residents make all house decisions in a democratic fashion. But even more important, the support they lend each other is therapeutic, in the same manner as that of a well - functioning family. The relationship is not analogous to that between residents of a boarding house).' Oxford House, Inc. has a charter which certifies that the house is conducting itself according to these principles. Oxford House residents are considered to be the "functional equivalent' of a family for several reasons. First, all the residents have access to the entire house. Second, all the residents participate equally in the housekeeping functions of the house, i.e.. house chores, house finances. Each resident, however, is responsible for his own food and cooking. Third is the quality of the relationship among the residents. The emotional and mutual support and bonding given each Oxford House resident in support of his/her recovery from drug addiction and alcoholism is the equivalent of the type of love and support received in a traditional family. Finally, the living arrangement is not based upon a profit motive. It is necessary that each of the Oxford Houses to be able to have a 'Also, See Oxford House, Inc., et al. v. Township of Cherry Hill, 799 F. Supp. 450, 452 (D.N.J. 1992), wherein the Court stated: Oxford Houses are not health care facilities, rehabilitation centers, or supervised halfway houses. They are simply residential dwellings rented by a group of individuals who are recovering from alcoholism and drug addiction ... No professional treatment, therapy, or paid staff is provided. Unlike a boarding house, where a proprietor is responsible to run and operate the premises, at Oxford House, the residents are responsible for their own food and care as well as for running the home. Because the house must be self - supporting, each of the residents needs a source of income to pay his or her fair share of the expenses. See, United States v. Borough ofAudubon, 797 F. Supp 353, aff'd 968 F.2d 14 (3d Cir. 1992)(Oxford Houses are not health care facilities, rehabilitation centers, or supervised halfway houses. Unlike those facilities, no professional treatment or paid staff are provided. Instead, such houses are simply residential dwellings that are rented by a group of individuals who are recovering from alcoholism or drug addiction.). The Court also held that Oxford House residents are handicapped under the Federal Fair Housing Act, and that the residents drug and/or alcohol addictions did substantially impair one or more of their major life activities. David Hunt, Esquire Page 5 November 27, 2949 maximum of twelve residents in order for the residents to ameliorate the effects of the diseases of alcoholism and drug addiction. In addition, residents live in an Oxford House by choice. The choice is usually motivated by the individual's desire not to relapse into drug and/or alcohol use again after that individual has bottomed out, i&. lost jobs, home or family. It is also motivated by the desire that one must change their lifestyle, the manner in which the conduct their affairs, and the need to become a responsible, productive member of society. The final factor in determining that Oxford House residents are the "functional equivalent" of a family is the fact that there are no limits as to how long a resident can stay in Oxford House. Conceivably, an individual can stay in Oxford House a lifetime ifhe/she does not relapse into drug and/or alcohol use, pay his/her rent on time, and does not engage in disruptive behavior. The requested accommodations are necessary so that this particular, group of recovering alcoholics and drug addicts may have an equal opportunity to use and enjoy the dwelling of their choice. As the court in Smith & Lee Associates, Inc. v. City of Taylor pointed out, equal opportunity under the FHA in the zoning context is defined "as giving handicapped individuals the right to choose to live in single - family neighborhoods." 142 F.3d 781, 794-95 (6th Cir.1996). Here, there is substantial evidence that the requested accommodation is necessary to achieve an opportunity for the disabled residents of the Orange Avenue properties to live in a residential area of the City of Newport Beach. Absent the sober house setting, the individual residents of Yellowstone would not be able to live in a supportive environment in a residential area, let alone a single - family residential area. See also Oconomowoc Residential Prog., 300 F.3d at 784 ("When a zoning authority refitses to reasonably accommodate these small group living facilities, it denies disabled persons an equal opportunity to live in the community of their choice. "); Shanpvisions, Inc. v. Borough ofPlmn, 475 F. Supp. 2d 514, 526 (W.D. Pa. 2007) (holding that request for accommodation to definition of "family" was necessary for a resident "to enjoy the housing of his or her choice"). Yellowstone' requested accommodations, to allow 12 residents plus a live in manager at the two non Oxford Houses and 12 at the Oxford Houses, is necessary to afford the disabled residents of the Yellowstone houses the equal opportunity to use and enjoy a dwelling. It has been found that individuals who decide to live in sober housing programs, such as that offered by Yellowstone, are allowed to engage in the process ofre overy from alcoholism and substance abuse, at their own pace that the effects of the disease of alcoholism and drug addiction are alleviated. By living with other persons who are in recovery, the residents do not have to face an alcoholic's or addict's deadliest enemy: loneliness.' The requested accommodations are necessary since it will enhance the residents' 'Congress has also endorsed group homes as a tool in the fight against addiction. Specifically, the federal government gives the states block grants to fight substance abuse. The statute regulating states' use of this federal money expressly allows them to use their grants to "establish and maintain the ongoing operation of a revolving fiord ... to support group homes for recovering substance abusers[.]" 42 U.S.C. § 300x- 25(a).(loans for sober housing based on the David Hunt, Esquire Page 6 November 27, 2009 recovery from alcoholism and drug addiction. See Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737,749 (7th Cir. 2006) (en bane) ( "[T]he statute requires only accommodations necessary to ameliorate the effect of the plaintiffs disability so that she may compete equally with the non - disabled in the housing market. ");Lapid - Laurel, L.L.C. v. Zoning Bd. ofAdjustmentofTwp. of Scotch Plains, 284 F.3d 442, 460 (3d Cir. 2002) ( "[I]f the proposed accommodation provides no direct amelioration of a disability's effect, it cannot be said to be necessary. ") (quotation marks omitted); Forest City Daly Hous., Inc. v. Town off. Hempstead, 175 F.3d 144,152 (2d Cir. 1999) (explaining that the relevant inquiry is whether "the non - complying features of the proposed residence are necessary' inlightofthedisabi litiesofproposedresidents "); Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. Wis. 2002)(An accommodation is "necessary" if it will "affirmatively enhance a disabled plaintiffs quality of life by ameliorating the effects of the disability. ") See also, Developmental Servs. ofNeb. v. City of Lincoln, 504 F. Supp. 2d 714, 723 (D. Neb. 2007) and New Hope Fellowship, Inc. v. City of Omaha, 2005 U.S. Dist. LEXIS 39174 (D. Neb. 2005). Without the required accommodation residents of Yellowstone will be denied the equal opportunity to live in a residential neighborhood." Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d at 784 (citations omitted). In addition, a minimum oftwelve residents per address is necessary so that Yellowstone may be economically viable. Yellowstone is required to make mortgage payments, pay property taxes, insurance, utilities as well as expenses related to maintenance and upkeep on the properties. The cost ofthe Yellowstoneprogram also includes providing "scholarships" for some residents who need a safe and sober residence but can not afford the rent, absorbing the costs of bad checks or failures to pay rent. Any household is entitled to bring in sufficient income to cover its living expenses. In addition, Yellowstone as a provider of housing and services to recovering substance abusers is also entitled to generate enough income to pay its business expenses. Even if there is a "commercial nature" to the operation of the Yellowstone houses, this is not a basis for denying its request for a reasonable accommodation. (The nature of group home living for the handicapped often requires alternative living arrangements to effectuate the purpose of the FHA. The disabled are not able to live safely and independently without organized, and sometimes commercial group homes. Groome Resources Ltd V. Parish ofJe, fJerson °, 234 F.3d 192, 206 (5th Cir. 2000). The fact that the Glendora Oxford House concept). "The purpose of the fund is to make loans for the costs of establishing programs for the provision of housing in which individuals recovering from alcohol or drug abuse may reside in groups of not less than 6 individuals," and these group homes must operate under rules similar to the rules each resident agrees as a condition of living at Yellowstone Id. § 300x- 25(a)(1). Schwarz v. City of Treasure Island, 544 F.3d 1201, 1227 n. 16 (1 ith Cir. Fla. 2008) °The Groome Court also held: "In addition to the commercial aspect of purchasing the home, it must be noted that the granting of reasonable accommodations to Alzheimer's group homes and other homes for disabled individuals also affects the commercial viability of care organizations like Groome Resources. The district court found that the zoning ordinance, with its David Hunt, Esquire Page 7 November 27, 2009 home is a business should not be the basis for denying an accommodation when reasonable and necessary. Avalon Residential Care Homes, Inc. v. City of Dallas, 130 F. Supp. 2d 833, 841 (N.D. Tex. 2000))5. Yellowstone' requests for a reasonable accommodation is reasonable and necessary based on its need to pay normal household expenses as well as its business and operational expenses. For the reasons stated above, it is requested that the City Council find that there does not exist substantial evidence to support the findings of the hearing officer. It is further requested that the City Council approve Yellowstone's modified requests for a reasonable accommodation. cc: Christopher Brancart Yellowstone Properties, LLC Patrick Bobko Dana Mulhauser Paul E. Smith limitation on four unrelated persons, "will make it economically unfeasible for plaintiff to operate the proposed home." The court recognized that the economic viability of this care facility was impeded by the refusal to grant an accommodation" Groome Resources, Ltd v. Parish of Jefferson, 234 F.3d 192, 206 (5th Cir. La. 2000) 'Other circuits have also recognized that commercial group homes may be the only way for disabled individuals to live in a residential community. See Hovsons, Inc. v. Township of Brick, 89 F.3d l 096, 1105 (3d Cir. 1996); Smith & Lee Assocs., Inc. v City of Taylor, Mich., 13 F.3d 920, 931 (6th Cir. 1993). "RECEIVY AFTER AGENDA ?R :.SE11:" CITY OF NEWPORT BEACH MEMORANDUM TO: Mayor and Members of the City Council . FROM: Catherine Wolcott, Deputy City Attom y Kit Bobko, Special Counsel DATE: December 2, 2009 RE: Yellowstone Women's First Step House, Inc. Appeal — November 27, 2009 Amendments to Reasonable Accommodation Requests 1561 Indus Street: RA No. 2009 -004 (PA2008 -105) 1621 Indus Street: RA No. 2009 -005 (PA2008 -106) 1571 Pegasus Street: RA No. 2009 -006 (PA2008 -107) 20172 Redlands Drive: RA No. 2009 -007 (PA2008 -108) Preliminary Staff Analysis of Amended and New Requests and Related Procedural Matters This memorandum is prepared in response to a letter sent to the Office of the City Attorney on November 27, 2009 ( "the November 27 letter") by counsel for Yellowstone Women's First Step House, Inc. ( "Yellowstone "). On February 20, 2009 and March 12, 2009, the Hearing Officer considered the following requests and applications made by Yellowstone: • Use Permits — Yellowstone applied for use permits to continue operation at their current locations at their current capacities — 12 residents at 1561 Indus, 18 residents at 1621 Indus, 18 residents at 1571 Pegasus and 17 residents at 20172 Redlands (65 residents total). The Hearing Officer denied Yellowstone's use permit applications. • Reasonable Accommodation No. 1 — Yellowstone requested that each of its facilities be treated as a single housekeeping unit. In January 2009 correspondence and at March 12, 2009 public hearing, Yellowstone argued that they also operated as a single housekeeping unit. • Reasonable Accommodation No. 2 - Yellowstone asked for a waiver of the use permit occupancy limits of two residents per bedroom plus one additional resident. • Reasonable Accommodation No. 3 — Yellowstone asked for a waiver of use permit fees due to financial hardship. City Hall • 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768 Yellowstone Women's First Step House, Inc. - Amended RA Requests December 2, 2009 Page 2 The November 27 letter states that it amends Yellowstone's reasonable accommodation requests as follows: • Yellowstone requests reasonable accommodation to continue to house 12 residents at each of its four facilities (48 residents total.) (This request is generally related to Yellowstone's overall goal of continuing operation at its four facilities in some configuration, and is substantially similar to Yellowstone's requests for the granting of use permits. Staff does not consider this to be a new request.) • Yellowstone requests as a reasonable accommodation that the City treat each of its houses as a single housekeeping unit, by waiving the requirement that all of the residents be on a single written lease as required in the definition of single housekeeping unit in Newport Beach Municipal Code ( "NBMC") section 20.03.030. (Staff considers this a restatement of a previous request.) Yellowstone requests the City grandfather the fire clearances it claims to have received from the Orange County Fire Authority prior to the City's annexation of Santa Ana Heights in January 2008. (This is a new request, but will not be further analyzed in this memorandum. Staff has previously informed Yellowstone it will accept any fire clearances granted by the Orange County Fire Authority prior to January 1, 2008, but Yellowstone must provide evidence that such fire clearances were, in fact, granted. To date, Yellowstone has provided evidence of only one completed fire clearance.) Yellowstone requests that the City apply all building, zoning, fire and life safety codes to each of its houses in the same manner as those code provisions are applied to single housekeeping units or single family uses. (The request to apply zoning code provisions as if the Yellowstone facilities were a single housekeeping unit is a restatement of Yellowstone's previous request to be treated as a single housekeeping unit. The remainder of the request is a new request, which was not raised before the Hearing Officer.) • Yellowstone requests waiver of the occupancy limitation of two per bedroom plus one staff member to determine maximum occupancy per house.' (Staff considers this a restatement of a previous request.) As noted above, some of the requests listed in the November 27 letter are new requests rather than amendments. Some are restatements of previous requests. Staff believes the issue of Yellowstone's fire clearances from the Orange County Fire Authority is properly characterized as a factual dispute rather than an accommodation request. The first request (to be granted an accommodation to remain in operation with 12 residents per facility), however, could arguably be considered an amendment of a previous request because it reflects Yellowstone's general intent to request an accommodation that would allow it to continue operation at its current locations. 'The NBMC operational standards for use permits set forth in Section 20.81A.050 require a maximum of two residents per bedroom plus one additional resident. Staff is not considered under the NBMC. Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 Page 3 ISSUES: On appeal of a decision of a Hearing Officer, can the City Council hear and consider new or amended requests when the specific request was not submitted to the Hearing Officer, but evidence was presented at the evidentiary hearing that (1) raises the issue addressed in the request, and (2) would allow the City Council to determine whether findings could have been made to grant or deny the request? • On appeal of a decision of a Hearing Officer, should the City Council hear and consider new or amended requests when the specific request was not submitted to the Hearing Officer, and there was no evidence presented at the evidentiary hearing that raised the issue addressed in the request? RECOMMENDATIONS: The NBMC states that on appeal from a reasonable accommodation request or use permit, the City Council "shall determine whether the findings made by the Hearing Officer are supported by substantial evidence presented during the evidentiary hearing," and may °sustain, reverse or modify the decision of the Hearing Officer," or remand the matter to the Hearing Officer for further consideration, which remand shall include specific Issues to be considered or direction for a de novo hearing. See NBMC §§ 20.98.025A and 20.91A.040. Staff recommends the City Council: Review the administrative record, including material submitted by the applicant and the public, analysis in the staff reports for the public hearings, the Hearing Officer's resolutions, and the transcripts of the hearings in light of the new and amended requests; and 2. Consider whether substantial evidence presented during the evidentiary hearing before the Hearing Officer supports a determination that findings required to grant a reasonable accommodation for any or all of the Yellowstone facilities to continue operation at their current locations can be made; 3. Consider whether substantial evidence presented during the evidentiary hearing before the Hearing Officer supports a determination that findings required to grant a reasonable accommodation applying all building, zoning, fire and life safety codes in the same manner as the City would apply those codes to single housekeeping units can be made; 4. For restated prior requests on which the Hearing Officer has already made a determination, including the appellant's restated requests to treat Yellowstone facilities as single housekeeping units and to waive the use permit operational condition limiting residential care facilities to two residents per bedroom plus one additional resident, deny the appeals filed by Yellowstone, and uphold and affirm the Hearing Officer's decisions to deny Reasonable Accommodation No.'s 2009 -004, 2009 -005, 2009 -006 and 2009- 007. DISCUSSION: Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 Page 4 1. The City Council May Consider All Evidence Presented During the Evidentiary Hearing and Sustain, Reverse, or Modify the Hearing Officer's Decision. The City Council does not have jurisdiction over the Hearing Officer's decision until he has rendered a final decision on either a use permit or reasonable accommodation request. In the context of an administrative hearing, a "final decision" is one that completely disposes of all issues between the parties, and the Hearing Officer contemplates no further action on the subject matter of his ruling. (See e.g., Griset v. FPPC (2001) 25 CalAth 688, 700 (when court's ruling disposed of all causes of action framed by the pleadings, there remained no further substantive issues for future determination).) On appeal, the City Council's review of the Hearing Officer's final decision is limited to evidence (i.e., facts) contained in the administrative record. The NBMC does not allow for the admission of extra - record evidence on appeal, nor may the City Council undertake a de novo review of the facts presented at that hearing. (See NBMC §§ 20.98.025A and 20.91A.040.) As a practical matter, if the evidence does not appear In the administrative record, it does not exist for purposes of the appeal. (See e.g., Eureka Citizens for Responsible Gov't v. City of Eureka, (2007) 147 Cal.AppAth 357, 367 (finding extra -record evidence allowed only if unavailable at trial or improperly excluded).) Moreover, the Council may only "sustain, reverse or modify" the Hearing Officer's decisions; the Municipal Code does not permit the Council to decide issues for the first time on appeal. The Council may neither substitute its views for those of the Hearing Officer, nor reweigh conflicting evidence presented to him. The, Hearing Officer's decisions are given substantial deference on appeal. (See Sierra Club v. County of Napa (2004) 121 Cal.AppAth 1490, 1497.) Accordingly, to the extent the November 27 letter addresses claims or theories raised below that are based on evidence presented at the evidentiary hearing, the City Council may "sustain, reverse or modify' the Hearing Officer's decision regarding those claims or theories. (See e.g., Hoffman -Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15 (noting on appeal a party may change the legal theory he relied upon at trial, so long as the new theory presents a question of law to be applied to undisputed facts in the record).) Alternatively, to the extent the November 27 letter raises novel claims or theories based on facts not presented at the evidentiary hearing, the Municipal Code gives the Council no authority to admit the new facts, or to decide new claims. This follows the general rule that a party on appeal must stick with the case it tried. (See e.g., Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 CalAth 1334, 1350 n.8 ( "The rule is well settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.") (Internal citations omitted). It is however, within the Council's discretion to remand the matter to the Hearing Officer for further consideration or to obtain additional evidence on an issue. (See NBMC §§ 20.98.025A and 20.91A.040.) Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 Page 5 There is Substantial Evidence in the Administrative Record that Supports the Hearing Officer's Decision to Deny the Reasonable Accomodation Request to Treat Yellowstone's Clients as a "Single Housekeeping Unit" Under the substantial evidence test, the Council shall determine whether the Hearing Officer's findings are supported by substantial evidence, and may "sustain, reverse or modify" that decision? The Council may also remand the matter for further consideration, which remand shall include specific issues to be considered or a direction for a de novo hearing. See NBMC §§20.98.025(A) and 20.91A.040. The party seeking review (in this case, Yellowstone) bears the burden of showing that the Hearing Officer's decisions are not supported by substantial evidence in the record and the City Council "must resolve reasonable doubts in favor of the administrative findings and determination .0 (See Siena Club v. County of Napa (2004) 121 Cal.AppAth 1490, 1497.) Yellowstone contends the findings required for granting the requested accommodations could have been made. The November 27 letter notes that two of the Yellowstone facilities hold Oxford House charters, and argues extensively about how Oxford Houses in general function as single housekeeping units. The issue of whether Yellowstone residents actually resided as a single housekeeping unit was discussed in the February 20 and March 12 staff reports, and at the March 12, 2009 public hearing. Some of the arguments contained in the November 27 letter cite facts inconsistent with evidence in the administrative record, including Yellowstone's own written and verbal statements to staff. The Hearing Offices had an opportunity to review the applicant's sometimes- conflicting submissions and testimony, weigh the evidence, and make a determination of whether Yellowstone's residents actually resided as a single housekeeping unit. The evidence before the Hearing Officer included evidence that two of the Yellowstone facilities held Oxford House charters at the time of the hearing. (HR, YS 00170, 00666, 00715Y The Hearing Officer also had an opportunity to review the evidence in the record and submitted upon direct testimony, and determine whether treating Yellowstone's residents as a single housekeeping unit was reasonable and necessary. As shown in the Resolutions of Denial of Yellowstone's Request No. 1, the Hearing Officer determined that it was not. Ill. Substantial Evidence in the Administrative Record Supports a Determination to Deny a Reasonable Accommodation Granting an Exemption from the Use Permit Occupancy Limits of Two Residents per Bedroom Plus One Additional Resident The Hearing Officer did not make a determination on this issue, because the occupancy limit was a use permit requirement. As Yellowstone's use permit applications were denied, the occupancy limit was considered a moot issue at the reasonable accommodation public hearing 2 "Substantial evidence" means evidence of a "ponderable legal significance ... reasonable in nature, credible, of solid value, and relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Young v. Gannon (2002) 97 Cal.App.4th 209, 221. 3 Each page of the Hearing Record is numbered consecutively, beginning with HR. YS 00001.. This means "Hearing Record, Yellowstone, Bates No. 00001.0 Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 page 6 on March 12, 2009, and the Hearing Officer did not made a determination or resolution in relation to it. In relation to Yellowstone's November 271h request for an accommodation that allows it to continue operating its four facilities with 12 residents in each home, and an accommodation waiving application of the NBMC's use permit occupancy limit of two residents per bedroom plus one additional resident, a waiver of the use permit occupancy limit is not necessary for three of the facilities to operate at the population level requested. The November 27 letter requests a population of 12 residents at each facility. With the exception of the five- bedroom 1561 Indus, all Yellowstone facilities have six bedrooms. (HR, YS 00022, 00290, 00561, 00838) This allows three of the facilities to house more than the requested number of residents without exceeding the occupancy limits required for use permits issued under NBMC Section 20.91A.050. IV. The Hearing Officer Effectively Considered the Issue of Whether Yellowstone Required a Reasonable Accommodation to Continue Operations at Its Current Facilities Although Yellowstone did not specifically request a reasonable accommodation that allowed it to remain in operation at its current locations, it did request use permits to continue its current operations. Within the context of the evidentiary hearing on Yellowstone's use permit applications, the Hearing Officer considered evidence relevant to this request. Staff recommends the City Council review staffs February 20 recommendations and findings in the four February 20, 2009 use permit staff reports. In the February 20, 2009 use permit staff reports, prepared prior to the City's discovery that the Yellowstone facilities were not legally established, staff stated findings could be made to grant use permits to two of Yellowstone's facilities, with a reduced population at each facility and operating conditions placed on each to mitigate negative secondary impacts on neighboring properties. In the February 20, 2009 staff report, staff recommended the use permits be granted to 1621 Indus and 20172 Redlands because those two facilities were the farthest apart of the four facilities, and therefore created the greatest dispersal. IV. Yellowstone Raised the Fire Code and Life - safety Issues at the Evidentiary Hearing, but There Is No Evidence in the Record to Support a Finding That an Accommodation Can be Granted Allowing Its Facilities to be Treated as Single Housekeeping Units for Building Code purposes During the application process and at public hearings, Yellowstone addressed Building Code, fire, and life safety issues only in the context of asserting that they held valid fire clearances from the Orange County Fire Authority. At no time did Yellowstone assert in the administrative record that fire clearances should be waived, or that California Building Code requirements for single - family uses should be applied to its residential care uses. Therefore, Yellowstone did raise issues regarding Building Code, and fire and fife- safety at the evidentiary hearing, but failed to adduce sufficient evidence to support the new reasonable accommodation request. Regarding fire clearances, Yellowstone was unable to produce valid documentation. from the Orange County Fire Authority for any of its facilities other than 1571 Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 Page 7 Pegasus. There is no evidence in the record that the City should apply Building Code requirements to Yellowstone as if its residents were a single housekeeping unit. CONCLUSIONS: Staff concludes that the City Council may properly review the evidence in the record and "sustain, reverse or modify" the Hearing Officer's decision regarding the question of whether a reasonable accommodation is both necessary and reasonable to allow all or any of the Yellowstone facilities to continue operation at their current location, with 12 resident clients per facility. Staff concludes Yellowstone failed to adduce sufficient facts at the evidentiary hearing to support its claim on appeal that the City should grant a reasonable accommodation applying the California Building Code requirements for single - family occupancies to its facilities. Staff submits this issue was raised below, but there are no facts in the record that would support the Council's action to "sustain, reverse or modify' the Hearing Officer's decision on appeal. Staff recommends that, as to the restated requests to treat Yellowstone facilities as single housekeeping units and to waive the use permit occupancy limit, the City Council deny the appeals submitted by Yellowstone, sustaining and affirming the Hearing Officer's decisions, and direct staff to prepare resolutions for adoption at the next City Council meeting. If the City Council identifies evidence in the administrative record that allows it to make a finding in favor of an accommodation that permits Yellowstone to remain in operation at all or any of Its facilities, staff recommends that the City Council direct staff to prepare resolutions reflecting its findings for adoption at the next City Council meeting.