HomeMy WebLinkAbout01 - Yellowstone Women's First Step House, IncCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
COUNCIL AGENDA
NO. I
1-11-10
Agenda Item No. 1
December 2, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Office of the City Attorney
David R. Hunt, City Attorney
94916443131 or dhunt(cbnewportbeachca.gov
SUBJECT: Appeal of Hearing Officer's Denial of Use Permits and Reasonable
Accommodations — 1561 Indus, 1621 Indus, 1571 Pegasus, 20172 Redlands
(Yellowstone Women's First Step House, Inc.)
• 1561 Indus Street: Use Permit No. 2008 -034
(PA2008 -105) Reasonable Accommodation No. 2009 -004
• 1621 Indus Street: Use Permit No. 2008 -035
(PA2008 -106) Reasonable Accommodation No. 2009 -005
1571 Pegasus Street: Use Permit No. 2008.036
(PA2008 -107) Reasonable Accommodation No. 2009 -006
• 20172 Redland Drive: Use Permit No. 2008 -037
(PA2008 -108) Reasonable Accommodation No. 2009 -007
ISSUE:
Did substantial evidence support the Hearing Officer's denial of Yellowstone Women's First Step
House, Inc.'s ( "Yellowstone ") application for use permits and for reasonable accommodations for
each of its four Newport Beach facilities? If not, what action should the City Council take pursuant
to Newport Beach Municipal Code ( "NBMC ") section 20.91A.040 and 20.98.025?
RECOMMENDATION:
Staff recommends the City Council determine whether substantial evidence in the record supports
the Hearing Officer's decision to deny Yellowstone's applications for the use permits and
reasonable accommodations.
If the City Council determines that substantial evidence supports the denials, the Council should
sustain the decisions of the Hearing Officer.
If the City Council determines that substantial evidence in the record does not support any of the
denials, the Council must then choose between one of three possible actions:
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1. Reverse the Hearing Officer's decision and authorize the issuance of the requested use
permits) or one or more of the requested reasonable accommodations to Yellowstone,
under conditions the Council determines are appropriate based upon the evidence in the
hearing record; or
2. Modify the Hearing Officer's decision denying the use permit and /or reasonable
accommodation to Yellowstone based upon the evidence in the hearing record; or
3. Remand the matter to the Hearing Officer for further consideration, which remand shall
include direction either to consider specific issues, or to conduct a de novo hearing on
whether to grant, conditionally grant, or deny a use permit and/or reasonable
accommodation to Yellowstone.
If the City Council determines the Hearing Officer's findings are not supported by substantial
evidence and directs action be taken based upon choosing one of the three options above, we
recommend that a resolution be prepared setting out the determination of the Council and the
findings supporting that determination, and that the resolution be brought back to the Council for
approval and adoption as the Council's final decision on the matter.
BACKGROUND:
Yellowstone operates unlicensed residential care facilities providing a sober living environment at
four locations in the West Santa Ana Heights area of Newport Beach. The facilities are located in
four single - family homes in the Santa Ana Heights Specific Plan, in a residential district zoned
RSF (Residential — Single Family). Yellowstone applied for four separate use permits that would
allow them to continue to house 12 female residents at 1561 Indus Street, 17 female residents at
1621 Indus Street, 18 female residents at 1571 Pegasus Street, and 18 male residents at 20172
Redlands Drive, for a total of 65 resident clients. All four properties are located within
approximately 320 feet or less of each other.
West Santa Ana Heights was an unincorporated area under the jurisdiction of the County of
Orange at the time the four facilities were established. The City of Newport Beach ( "City")
completed the annexation of West Santa Ana Heights on January 1, 2008, prior to the adoption of
Ordinance 2008 -05. These uses were in operation at the time the City enacted Ordinance No.
2008 -05, and on the Ordinance's effective date of February 22, 2008.
NBMC Section 20.91A.020 requires nonconforming uses in residential districts that were
rendered nonconforming by the adoption of Ordinance No. 2008 -05 to apply for and receive a use
permit to continue operation at their current locations. Yellowstone's facilities are classified as a
"Residential Care Facility, General- Unlicensed" use, and are located in a RSF (Residential - Single
Family) district where, under Ordinance No. 2008 -05, such uses are not permitted or conditionally
permitted. On May 20, 2008, Yellowstone applied for a use permit for each of its four Newport
Beach facilities within the time period required by Ordinance No. 2008 -05.
In addition, Yellowstone applied for a general reasonable accommodation on May 20, 2008, but
did not initially request an exemption from any specific City rule, policy or practice. On August 22,
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2008, the applicant submitted an application for reasonable accommodation that requested an
exemption "from single family to multi - family residence," and also discussed the need for an
accommodation from the required use permit fee due to financial hardship.
In January 29, 2009, Yellowstone amended its reasonable accommodation request to request
three specific accommodations. The requests were:
1. That the residents of each Yellowstone facility be treated as a single housekeeping unit,
as the term is defined in NBMC Section 20.03.030;
2. An exemption from the occupancy restrictions of NBMC Section 20.91A.050, which
requires that use permits granted to residential care facilities restrict facility occupancy to
no more than two residents per bedroom plus one additional resident;
3. An exemption from the City's requirement that all use permit applicants pay a use permit
application fee. (NBMC Chapter 3.36 and NBMC Section 20.90.030)
A. USE PERMIT HEARINGS AND HEARING OFFICER'S DECISION:
A noticed public hearing was conducted by the Hearing Officer on February 20, 2009, at which
the Hearing Officer heard testimony from City staff and its counsel, the applicant and members of
the public. At the conclusion of the hearing, the Hearing Officer concurred with staffs
recommendation to deny Use Permit No. 2008 -034 for the facility located at 1561 Indus Street
and, Use Permit No 2008 -036 for the facility located at 1571 Pegasus Street, and directed staff to
prepare resolutions for denial. The Hearing Officer also concurred with staffs recommendation to
approve Use Permit No. 2008 -035 for the facility located at 1621 Indus Street and Use Permit No.
2008 -037 for the facility located at 20172 Redlands Drive, for a maximum of 15 residents each.
The hearing was continued to March 12, 2009, to adopt the resolutions and take action on the
application for requests for reasonable accommodation.'
However, at the March 12, 2009, public hearing, staff recommended that the Hearing Officer
reopen the public hearing on the use permit applications, and to take further testimony from the
applicant, the staff and the City's legal counsel, and the public.
Staff made the request to reopen the public hearing because of testimony provided by the
applicant's legal counsel during the February 20, 2009 hearing. (HR, Y 01475, 01498)
Applicant's counsel presented extensive information on the history of California courts' treatment
of legal nonconforming uses, cited a number of California cases for the proposition that zoning
restrictions should not be applied retroactively, and appeared to assert that Yellowstone had
'The full record of the proceedings at the Hearing Officer level is submitted to the City Council as the
"Hearing Record" and is attached hereto as Attachment 2. Each page of the Hearing Record is numbered
consecutively, beginning with HR, Y 00001. References to the Hearing Record are denoted at "HR ", with
the Bates stamp page number.
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rights as a nonconforming use that should excuse it from the use permit requirement, or would
render Ordinance No. 2008 -05 unconstitutional. (HR, Y 01153 - 65)
Between the February 20 and March 12, 2009 hearings, staff conducted further investigation into
the circumstances and laws applicable at the time the facilities were established under the
jurisdiction of the County of Orange. (HR, Y 01475 — 76) In response to City inquiries, County
staff provided information in emails to City staff that indicated large group homes would have
been considered either a congregate care facility, or large community care facility, and that the
County would have required use permits issued by the County Planning Commission for either
use. (HR, Y 01629 — 32) Staff reported that based on information provided to staff by the County,
it had reached the conclusion that under County jurisdiction and the Santa Ana Heights Specific
Plan, each Yellowstone facility would have been considered either a congregate care facility, or a
community care facility serving seven to 12 residents. (HR, Y 01476)
The Santa Ana Heights Specific Plan allowed community care facilities with seven to 12 residents
in the RSF zone only with a use permit issued by the County Planning Commission. (HR, Y
01477, 01404 - 08, 01412) County records indicated that, with the exception of a temporary use
permit for up to 40 meetings at 1621 Indus, no use permits had ever been issued by the County
Planning Commission for any of the Yellowstone uses. (HR, Y 1477, 01629) Staff asserted this
meant none of the Yellowstone facilities had ever been legally established under County
jurisdiction. Because of this, staff determined it could no longer make required use permit
findings that relied in part on a finding that the applicant had not operated other similar facilities in
violation of state or local law. In addition, staff questioned whether Yellowstone, as an illegal use,
had been qualified to apply for and receive a use permit. (HR, Y 01478 — 79)
The Hearing Officer agreed to reopen the public hearing on the issue of Yellowstone's use permit
applications at the March 12, 2009 continued hearing. (HR, Y 01481) At the conclusion of the
March 12, 2009 hearing, after consideration of the testimony submitted by the applicant, staff and
the public, the Hearing Officer determined the Yellowstone facilities were not lawfully established
when they were established within the County of Orange incorporated territory known as West
Santa Ana Heights, and were therefore not qualified to seek a use permit to continue the use in
their current locations. (HR, Y 01511 — 12) He directed staff to prepare Resolutions of Denial for
all four use permits, and adopted the Resolutions on April 14, 2009.
B. REASONABLE ACCOMMODATION HEARINGS AND HEARING OFFICER'S
DECISION:
A noticed public hearing on Yellowstone's use permit and reasonable accommodation
applications was conducted by the Hearing Officer on February 20, 2009, taking testimony from
staff, the applicant and members of the public. The February 20 hearing, which primarily dealt
with use permit considerations, was continued to March 12, 2009, to adopt resolutions on the use
permit applications and to hear and take action on the application for requests for Reasonable
Accommodation No. 2009 -06. (HR, Y 01240)
At the March 12, 2009, public hearing, the Hearing Officer heard testimony from City staff, its
counsel, the applicant and members of the public regarding reasonable accommodation Requests
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No. 1 and 3 2 Therefore, the Hearing Officer was asked to consider only Request No. 1
(treatment as a single housekeeping unit) and Request No. 3 (waiver of the use permit fees) (HR,
Y 01518).
At the conclusion of the March 12, 2009 hearing, and after consideration of information in the staff
reports and testimony provided by the applicant, staff and its legal counsel, and the public, the
Hearing Officer determined that he could not make required findings for Yellowstone's Request
No. 1 (that residents of its facilities be treated as a single housekeeping unit.) (HR, Y 01556) He
therefore directed staff to prepare Resolutions of Denial for Requests No. 1 and 2.
The Hearing Officer did not take action on Request No. 3. Staff had recommended denial of
Request No. 3, based the limited, non - verified information submitted by Yellowstone on
operational costs and fees charged, and had asserted that fees quoted on Yellowstone's website
indicated that Yellowstone could afford to pay the use permit fees. However, staff also indicated it
remained willing to consider additional financial information in support of the request, if the
applicant was willing to provide it, and that Yellowstone could produce the information for in
camera review by the Hearing Officer, rather than in a public setting. (HR, Y 01523 — 24, 01542,
01557) The applicant stated that fees quoted on its website did not necessarily reflect fees
actually charged, and that it was willing to provide staff with additional financial information. (HR,
Y01551)
The Hearing Officer directed Yellowstone to submit any financial information it chose to staff
within one week of the hearing. He further directed staff to forward the information to him. The
Hearing Officer would then review the information and issue his ruling without further need for
public hearings. (HR, Y -1558) However, despite staffs subsequent inquiries, Yellowstone did
not submit further information. To date, Yellowstone has paid no use permit application fees, and
no determination has been made on this issue.
On April 14, 2009, the Hearing Officer adopted Resolutions of Denial for reasonable
accommodation Request No. 1.
C. APPEAL:
On April 27, 2009, Yellowstone filed timely appeals of the Hearing Officer's actions to the City
Council with the City Clerk, attached hereto as Attachment 3.
• For each Yellowstone address, the applicant filed an appeal of the Hearing Officer's denial
of the use permit application. In each use permit denial appeal, the stated grounds for
appeal are "The home operates in such a manner that the required findings to grant a
'Staff had determined that without a use permit, Request No. 2 was not required, and the Hearing Officer
did not disagree. (HR, Y 01518)
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Conditional Use Permit can be made. Therefore, the City of Newport Beach improperly
denied the request with prejudice"
• For each Yellowstone address, Yellowstone filed an appeal of the Hearing Officer's
decision to deny the use permit, and therefore its related application for reasonable
accommodation to receive an exemption from the occupancy restrictions of Section
20.91A.060 of the NBMC that restricts occupancy to two residents per bedroom plus one
additional resident. The basis for the appeal is, "The City of Newport Beach denied the
applicant's Conditional Use Permit application, therefore, the City's decision regarding the
occupancy exemption was rendered moot. Although the City never specifically ruled on
this particular reasonable accommodation request, Yellowstone hereby appeals because
the ... home operates such that the required findings to grant the requested reasonable
accommodation can made."
• For each Yellowstone address, Yellowstone filed an appeal of the Hearing Officer's
decision to deny the request that the facility be treated as a single housekeeping unit, as
defined in the NBMC. The basis for the appeal is, "The home operates such that the
required findings to grant the requested reasonable accommodation can be made.
Therefore, the City of Newport Beach improperly denied the request, with prejudice."
In an attempt to accommodate conflicts with Yellowstone's counsel's schedule, the appeal
hearing was scheduled before the City Council on September 22, 2009. The appeal was then
continued to November 24 while staff and Yellowstone continued to attempt to reach an
agreement on a mutually acceptable abatement agreement.
DISCUSSION:
Appeals of Hearing Officer's decisions on reasonable accommodation requests, as well as
appeals on use permits in residential districts, are heard by the City Council. (NBMC sections
20.91A.040 and 20.98.025.) Appeals from a Hearing Officer's decisions on use permits in
residential districts and reasonable accommodation applications are subject to the "substantial
evidence" standard under the Municipal Code. On appeal, the Council reviews the administrative
record from the proceedings below, and determines whether the Hearing Officer's decision was
supported by substantial evidence in the record. If the Hearing Officer's decision is supported by
substantial evidence, it must be sustained by the Council. If the Hearing Officer's decision is not
supported by substantial evidence, the Council may reverse, modify and/or remand the matter to
the Hearing Officer.3
1. Standard of Review— Use permits in districts zoned for non - residential uses.
3 Staff from the City's Planning Department and Deputy City Attorney Wolcott, who represented the City at
the Administrative Hearing, have submitted memoranda highlighting some of the relevant evidence in the
hearing record that they contend supports the Hearing Officer's decisions to deny use permits and
reasonable accommodation applications. These memoranda are attached hereto as Attachment 1.
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City Council review of land use decisions is typically conducted under the standard established by
NBMC Chapter 20.95. The City Council is accustomed to reviewing decisions made by the
Planning Commission, under the provisions of NBMC section 20.91.060. Section 20.91.060
provides that decisions made by the Planning Commission are reviewed by the City Council on
appeal, and that the procedures for such appeals are codified in NBMC Chapter 20.95. Chapter
20.95 states:
The public hearing on an appeal shall be conducted "de novo" in that the decision that has
been appealed has no force or effect as of the date on which the appeal was filed. The
appellate body is not bound by the decision that has been appealed or limited to the
issues raised on appeal. The appellate body shall hear testimony of the appellant, the
applicant, and any other interested party.
(NBMC section 20.95.060(C).)
Therefore, the City Council has acted as both the appellate body and the finder of fact at hearings
on appeals from decisions on use permits in areas zoned for commercial or industrial use. Public
testimony and evidence not presented at the Planning Commission hearings has been properly
presented to and considered by the City Council in these de novo hearings.
2.
NBMC Chapters 20.91A and 20.98 establish different procedures for approval, conditional
approval or disapproval of use permits in residential districts and requests for reasonable
accommodation. These chapters of the Municipal Code do not give the City Council authority to
address the issues "de novo."
When considering reasonable accommodations, and permits for uses conditionally permitted in
residential districts such as this one, NBMC Chapters 20.98 and 20.91A establishes a different
decision - making body and a distinctly different standard of appellate review by the City Council.
Applications for reasonable accommodations and use permits in residential districts are reviewed
and approved, conditionally approved or disapproved by a Hearing Officer rather than the
Planning Commission, in accordance with the procedures set forth in Chapters 20.98 and 20.91 A.
Decisions of the Hearing Officers are appealed directly to the City Council. Unlike appeals for use
permits approved, conditionally approved or disapproved by the Planning Commission, NBMC
section 20.91A.040 states:
Decisions of the Hearing Officer may be appealed to the City Council.
Notwithstanding Section 20.95.060, the standard of review shall not be de novo
and the City Council shall determine whether the findings made by the Hearing
Officer are supported by substantial evidence presented during the evidentiary
hearing. The City Council acting as the appellate body may sustain, reverse or
modify the decision of the Hearing Officer or remand the matter for further
consideration, which remand shall include either specific issues to be considered
or a direction for a de novo hearing.
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(NBMC section 20.91A.040 [Italics added].)
Similarly, NBMC section 20.98.025(A) provides in part:
... notwithstanding Section 20.95.060, the standard of review on appeal shall not be de
novo and the City Council shall determine whether the findings made by the Hearing
Officer are supported by substantial evidence presented during the evidentiary hearing.
The City Council, as the appellate body, may sustain, reverse or modify the decision of the
Hearing Officer or remand the matter for further consideration, which remand shall include
specific issues to be considered or a direction for a de novo hearing.
(NBMC section 20.98.025(A) [Italics added].)
a. The "substantial evidence" test and abuse of discretion.
When reviewing the decisions of a Hearing Officer on use permits and reasonable
accommodation applications, the City Council is therefore required by NBMC sections 20.91A.040
and 20.98.025 to apply the "substantial evidence test." As discussed above, this means that the
Council shall uphold the decision of the Hearing Officer if there is substantial evidence in the
hearing record as a whole to support the decision the Hearing Officer made. Thus, the inquiry for
the City Council is whether the Hearing Officer abused his discretion when he denied the
applications for the use permit and the accommodations.
The concept of "abuse of discretion" is well defined in the law. In finding abuse of discretion, the
City Council shall consider whether the Hearing Officer's action was arbitrary, capricious, in
excess of his jurisdiction, entirely lacking in evidentiary support, or without reasonable or rational
basis as a matter of law. A prejudicial abuse of discretion is established if the Hearing Officer did
not proceed in a manner required by law, or if his findings are not supported by substantial
evidence in the record. (Sierra Club v. County of Napa (2004) 121 Cal.App.4'" 1490, 1497.)
City staff, the applicant and members of the public may make comments regarding this issue at
the City Council's hearing on the appeal. However, in making its determination the City Council is
limited to a review of the hearing record from the proceedings below. It may neither substitute its
views for those of the Hearing Officer, nor reweigh conflicting evidence presented to him. The
decisions of the Hearing Officer are given substantial deference and are presumed correct. (121
Cal.App.0 at 1497.) The party seeking review (in this case, the applicant) 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." (/d.)
"Substantial evidence" means "enough relevant information and reasonable inferences from this
information that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached" (121 Cal.App.e at 1498.) Although facts in the hearing
record might lead the City Council to a conclusion different from the Hearing Officer's, the City
Council may not overturn the Hearing Officer's decision on the grounds that an alternate
conclusion based on the same set of facts would have been equally reasonable or more
reasonable. It also may not weigh conflicting evidence and determine which side has the better
argument. Instead, it must resolve all reasonable doubts in favor of the administrative finding and
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decision below. (Berkeley Keep Jets Over the Bay Committee v. Board of Commissioners of the
Port of Oakland (2001) 91 Cal.App.e 1344, 1356.)
b. What sort of evidence constitutes "substantial evidence ?"
In general, substantial evidence has been defined as "evidence of ponderable legal significance .
..reasonable in nature, credible and of solid value." (TG Oceanside, LP v. City of Oceanside
(2007) 156 Cal.App.e 1355, 1371.) It has also been defined as "relevant evidence that a
reasonable mind might accept as adequate to support a conclusion." (156 Cal.App.0 at 1371.)
(citations and internal quotation marks omitted.) "If the word 'substantial' means anything at all, it
clearly implies that such evidence must be of ponderable legal significance. Obviously, the word
cannot be deemed synonymous with 'any' evidence. It must be reasonable in nature, credible
and of solid value; it must actually be 'substantial' proof of the essentials which the law requires in
a particular case." (DeMartino v. City of Orinda (2000) 30 Cal.App.4 h 329, 336) (internal
quotation marks omitted.)
Substantial evidence may include facts, and expert opinions supported by facts, but not
argument, speculation, unsubstantiated opinion, or clearly erroneous evidence. (Sierra Club v.
County of !Napa, 121 Cal.App.&h at 1498.) The testimony of a single witness can constitute
substantial evidence. (Phelps v. State Water Resources Control Board (2007) 157 Cal.App.0
89, 99.)
When reviewing an administrative decision under the substantial evidence test, the reviewing
body considers all relevant evidence in the administrative record, beginning with the presumption
that the record contains evidence to sustain the hearing officer's findings of fact. (156 Cal.App.4'"
at 1371.)
In summary, the City Council may overturn the Hearing Officer's decision only if it finds that there
are insufficient facts, or expert opinions supported by facts, in the hearing record to support the
Hearing Officer's decision.
c. Was the Hearing Officer's decision supported by substantial evidence?
Staff recommends that the City Council review the administrative record, including the analysis in
staff reports, the transcripts of the hearings, documents submitted by the public and the appellant,
and the resolutions adopted by the Hearing Officer. After review, the City Council should
determine whether the Hearing Officer's decisions that certain required findings could not be
made were supported by substantial evidence.
Appropriate Relief:
Per NBMC sections 20.91A.040 and 20.98.025, the City Council may sustain, reverse or modify
the decision of the Hearing Officer if it concludes that decision is not supported by substantial
evidence. It may also remand the matter to the Hearing Officer for further consideration. If the
City Council remands the matter to the Hearing Officer, NBMC sections 20.91A.040 and
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20.98.025 requires that the Council either identify specific issues to be considered or direct that
the Hearing Officer conduct a de novo hearing on the matter.
Environmental Review:
This application has been determined to be categorically exempt under the requirements of the
California Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). This class of
projects has been determined not to have a significant effect on the environment and is exempt
from the provisions of CEQA. The City Council's consideration of this agenda item does not
require environmental review.
Public Notice:
This agenda item has been properly noticed as an appeal of a denial of an application for
reasonable accommodation (published in the Daily Pilot and mailed to property owners and
occupants within 300 feet of the subject property 10 days in advance of the hearing date) and in
accordance with the Ralph M. Brown Act (72 hours in advance of the public meeting at which the
City Council considers the item).
CONCLUSION:
Please determine whether the decisions of the Hearing Officer should be sustained or reversed,
modified, or reversed with conditions, or remanded for further consideration. If the City Council
reverses or modes a Hearing Officer decision, staff recommends that a resolution be prepared
setting out and memorializing the City Council's findings and conclusions, and will bring that
resolution back for City Council review, comment, and adoption at the first available meeting.
Submitted by:
OFFICE OF THE CITY ATTORNEY
T\ A
David R. Hunt, City Attorney
Attachment 1: Staff memoranda for December 2, 2009 Yellowstone Women's First Step House,
Inc., appeal to City Council.
Attachment 2: Hearing Record: Proceedings regarding Yellowstone Women's First Step House,
Inc., and related documents.
Attachment 3: Applications to Appeal Decision of the Hearing Officer
[A0"0441] CC staff Report for 12.2.09 Agenda
ATTACHMENT 1
Staff Memoranda for December 2,
2009 Appeal
Staff Report: Yellowstone - Appeal of Hearing Officer's Denial
of Use Permits and Reasonable Accommodation
CITY OF NEWPORT BEACH
MEMORANDUM
TO: tgayor and Members of the City Council
FROM: atherine Wolcott, Deputy City Attorney
Janet Brown, Associate Planner
DATE: December 2, 2009
RE: Yellowstone Women's First Step House, Inc. Appeal — Reasonable
Accommodation
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)
Staff Analysis and Recommendation Regarding Hearing Officer's Decision
This memorandum is prepared to accompany the staff report submitted by the Office of the City
Attorney for the appeal to City Council of a Hearing Officer's decision denying a requested
reasonable accommodation to Yellowstone Women's First Step House, Inc. ( "Yellowstone'.)
The staff report submitted by the Office of the City Attorney for this appeal sets forth the
background of the application process, the public hearings, the Hearing Officer's actions, the
filing of this appeal, and the applicant's stated grounds for appeal. The City Attorney's staff
report also discusses the "substantial evidence" standard of review that Newport Beach
Municipal Code (NBMC) Section 20.98.025 establishes for appeals of Hearing Officer actions
granting or denying reasonable accommodation. Information on the procedural background of
the appeal will not be repeated in this memorandum. However, some of the information on the
substantial evidence standard is summarized below to refresh recollections prior to reviewing
the highlighted evidence.
A separate staff memorandum discusses the evidence in the administrative record that supports
the Hearing Officer's decision to deny the four use permits. This memorandum focuses on a
discussion of evidence in the reasonable accommodation hearings' administrative record that
supports the Hearing Officer's decision to deny Reasonable Accommodation Request No. 1
and, to the extent the City Council decides to consider it, Request No. 2.' Staff concludes that
there is substantial evidence in the record to support the Hearing Officer's decision.
, As Request No. 2 (request to exceed the occupancy limits of two persons per bedroom plus one
additional person) could be granted only in conjunction with a use permit or reasonable accommodation
that allowed Yellowstone to remain in operation in these locations, and all use permit applications were
denied, the Hearing Officer did not make a ruling on this request, and did not adopt any resolution
City Hall • 3300 Newport Boulevard • Post Office Box 1768 . Newport Beach, California 92659 -1768
ISSUE:
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 2
Did substantial evidence support the Hearing Officer's denial of Yellowstone's
applications for reasonable accommodation to be treated as a single housekeeping
unit?
Had the Hearing Officer denied the second request for accommodation, to allow
Yellowstone to exceed the occupancy limitations of NBMC Section 20.91A.050, was
there substantial evidence in the administrative record to support that decision?
RECOMMENDATION:
Staff recommends the City Council:
Review the administrative record, including the analysis in the staff reports for the public
hearings, and the transcripts of the hearings; and
2. Deny the appeals filed by Yellowstone, and uphold and affirm the Hearing Officers
decisions to deny Reasonable Accommodation No.'s 2009 -004, 2009 -005, 2009 -006
and 2009 -007; and
3. Direct staff to prepare resolutions denying the appeals, sustaining and affirming the
Hearing Officer's decisions, and adopt the resolutions at the next City Council meeting.
DISCUSSION:
SUBSTANTIAL EVIDENCE TEST GIVES DEFERENCE TO HEARING OFFICER'S
FINDINGS
On February 20, 2009, and March 12, 2009, the City held public hearings before Hearing Officer
Thomas W. Allen to consider Appellant Yellowstone Women's First Step House, Inc.'s
("Yellowstone") application for four use permits and three reasonable accommodations. On
April 14, 2009, Hearing Officer Allen adopted Resolutions of Denial for the four use permits and
one of the reasonable accommodation requests. The question for the City Council today is
whether there is sufficient evidence in the administrative record to support the decisions the
Hearing Officer made.
Under the substantial evidence test, the Council must uphold the decision of the Hearing Officer
if there is substantial evidence in the record to support the decision that the Hearing Officer
made. If the City Council does not find substantial evidence in the record to support the Hearing
Officer's decision, the City Council may reverse or modify the decision, or remand the matter for
further consideration, which remand shall include specific issues to be considered or a direction
for a de novo hearing. (NBMC §20.98.025(A))
denying the request. However, Yellowstone has appealed the denial of the use permit, and If the City
Council reverses, modifies or remands the Hearing Officer's decision to deny the use permit(s), the
applicant intends to preserve its ability to have Request No. 2 reversed, modified or remanded as well.
Therefore, staff will also highlight evidence in the administrative record that would have supported a
denial of Request No. 2, had a use permit been granted.
Yellowstone Women's First Step house, Inc. — Appeal to City Council
December Z, 2009
Page 3
The City Council is limited on appeal to a review of the record from the proceedings below. It
may neither substitute its views for those of the Hearing Officer, nor reweigh conflicting
evidence presented to him. The decisions of the Hearing Officer are given substantial
deference and are presumed correct. (Sierra Club v. County of Napa (2004) 121 Cal.App.4"
1490, 1497.)
"Substantial evidence" means "enough relevant information and reasonable inferences from this
information that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached." (121 Cal.App.4'" at 1498.)
The party seeking review (in this case, the applicant) 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." (121 Cal.App.4'" at 1497.))
Substantial evidence may include facts, and expert opinions supported by facts, but not
argument, speculation, unsubstantiated opinion, or clearly erroneous evidence. (121
Cal.App.0 at 1498.) The testimony of a single witness can constitute substantial evidence.
(Phelps v. State Water Resources Control Board (2007) 157 Cal.App.&' 89, 99)
This memorandum highlights some of the evidence in the record that is consistent with the
standards of substantial evidence established in the court's decisions quoted above. Some of
the evidence was provided through the written or verbal testimony of members of the public who
had personal experience with Yellowstone as a neighbor. The staff reports for the public hearing
presented evidence as well as arguments to the Hearing Officer, and staff report excerpts
containing relevant evidence may be included here as well.
it. SUBSTANTIAL EVIDENCE IN THE ADMINISTRATIVE RECORD SUPPORTS THE
HEARING OFFICER'S DECISIONS
As the basis of its appeal, Yellowstone contends that the findings required for granting the
requested accommodations could have been made. Therefore, Yellowstone states, the City
improperly denied Yellowstone's request that each of its facilities be treated as a single
housekeeping unit. (Attachment 3, Yellowstone Appeal Applications)
Even if there was evidence in the record that could be interpreted as supporting findings
required to grant the request to be treated as a single housekeeping unit, the question before
the City Council is not whether the evidence, interpreted differently, might lead a decisionmaker
to an opposite or alternate conclusion. Although facts in the record might lead the City Council
to a conclusion different from the Hearing Officer's, the City Council may not overturn the
Hearing Officer's decision on the grounds that an alternative conclusion based on the same set
of facts might have been equally reasonable. It may not weigh conflicting evidence and
determine which side has the better argument. Instead, the City Council must resolve all
reasonable doubts in favor of the administrative finding and decision reached by the Hearing
Officer. (Berkeley Keep Jets Over the Bay Committee v. Board of Commissioners of the Port of
Oakland(2001)91 Cal.App.4h 1344, 1356.)
In order for the Hearing Officer to approve or conditionally approve an application for reasonable
accommodation, he or she must be able to make each of the five required findings following a
Yellowstone Women's First Step House, fnc. — Appeal to City Council
December 2, 2009
Page 4
noticed public hearing. If even one of the five required findings identified in NBMC Section
20.98.025(B) cannot be made, the Hearing Officer must deny the request.
As shown in the Resolutions of Denial of Yellowstone's Request No. 1, the Hearing Officer
determined that only three of the five findings required by NBMC Section 29.98.025(B) could be
made. This memorandum discusses some of the evidence in the record that supports the
Hearing Officer's decision that the other two required findings could not be made.
The examples of evidence below are in no way an exhaustive list of the substantial evidence in
the record; they are intended solely as an illustration for the City Council of the type of evidence
in the extensive administrative record that support the decisions of the Hearing Officer.
Yellowstone requested an exemption that would allow each of its facilities to be regulated under
the same rules as a single housekeeping unit. However, at some point in the application
process, Yellowstone also asserted that their residents actually reside as a single housekeeping
unit.
When individuals reside together in a manner that complies with the NBMC definition of a single
housekeeping unit, the City will treat that household as a single housekeeping unit, regardless
of whether the residents are related or unrelated, disabled or non - disabled. No reasonable
accommodation is required for a group of disabled individuals living as a single housekeeping
unit to reside anywhere in Newport Beach. Therefore, as a threshold matter, the Hearing
Officer had to consider whether residents of Yellowstone facilities actually reside as single
housekeeping units.
NBMC Section 20.03.030 defines a Single Housekeeping Unit as:
The functional equivalent of a traditional family, whose members are an interactive group of
persons jointly occupying a single dwelling unit, including the joint use of and responsibility
for common areas, and sharing household activities and responsibilities such as meals,
chores, household maintenance, expenses, and where, if the unit is rented, all adult
residents have chosen to jointly occupy the entire premises of the dwelling unit, under a
single written lease with joint use and responsibility for the premises, and the makeup of the
household occupying the unit is determined by the residents of the unit rather than the
landlord or property manager.
NBMC § 20.03.030 (Italics added.)
Over the course of the application process, Yellowstone's characterizations of the use of its
facilities changed. Initially, Yellowstone did not characterize its residents as living as a single
housekeeping unit. In its May 20, 2008 Application for Reasonable Accommodation for each
facility, Yellowstone stated, "The residents at the property reside separately at the property and
interact within the property. There is individual use of common areas. The residents are
responsible for their own meals, expenses and chores. Each individual resides at the property
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 5
subject to a separate contractual arrangement with the applicant." (HR, YS 00071.) (Italics
added.y3
This description is not consistent with that of a group residing as a single housekeeping unit
under the NBMC definition. While there may be interaction between Yellowstone residents,
Yellowstone admitted that resident responsibility for meals, expenses and chores is individual
rather than joint. Rather than residents choosing the makeup of the household together, each
individual enters a separate contract with Yellowstone management to reside in the facility.
In a follow -up conversation with Planning staff, Yellowstone CEO, Dr. Anna Thames stated that
the facility has no written leases with any of the residents, and that rental agreements with
residents are verbal. (HR, YS 00041.) Besides supporting a finding that residents of
Yellowstone do not determine the household makeup, this admission also shows that residents
of Yellowstone do not occupy the dwelling units under a single written lease, or any written
leases.
On January 29, 2009, in response to a request for clarification of inconsistencies by City staff,
Yellowstone again stated that residents of Yellowstone "reside separately at the property.
There is a common area however each resident is responsible for their own meals, expenses,
and chores." (HY, YS 00180.)
In the same January 29, 2009 document, Yellowstone said that their request to be treated as a
single housekeeping unit was necessary,
... because the Property is not transient or institutional in nature such that it fits the
definition of a non - licensed residential care facility. Instead the Property more accurately fits
the definition of a Single Housekeeping Unit as the term is defined in Section 20.03.030.
Residents are the functional equivalent of a traditional family, whose members are an
interactive group of persons jointly occupying a single dwelling unit. Like a Single
Housekeeping Unit, there is a common area and each resident is responsible for their own
meals, expenses and chores ... Also,, the makeup of the Property is determined by the
residents of the unit rather than the property manager. (HR, YS 00181)(Italics added.)
In analyzing the request for reasonable accommodation, staff noted the conflicting information
submitted by the applicant on who determined the household makeup, and conveyed its
concern to Yellowstone. In response, Yellowstone stated on February 13, 2009 that,
... the materials submitted to the City in May 2008 reflect some inaccurate information .. .
Yellowstone does not have a contractual relationship with the residents of its properties.
With respect to the residents of the four Yellowstone homes in Santa Ana Heights,
Yellowstone's position is correctly stated in a letter to the City dated January 29, 2009: "the
makeup of the Property is determined by the residents of the unit rather than the property
manager." More specifically, Yellowstone's Board of Directors does not determine who
Z All references to the administrative record are designated "HR, YS" followed by the page numbers. The
designation means Hearing Record, Yellowstone.
3 Yellowstone submitted separate but substantially similar applications for each facility. Where
information submitted for each facility is identical or substantially similar, this memo will cite to only one
location of the information in the administrative record.
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 6
resides in each of the four homes. New residents are introduced and approved by the
current residents during house meetings or they are not accepted. (HR, YS 00185 86)
(Italics added.)
The February 20, 2009 staff reports stated:
Staff is troubled by the contradictory information submitted regarding whether the facility
operator or the residents determine the household makeup. Given that both the May 20,
2008 reasonable accommodation application and the applicant's CEO stated that the
applicant determines the household makeup, applicant's counsel's assertion in the January
29, 2009 letter that "the makeup of the Property is determined by the residents of the unit
rather than the property manager" is difficult to accept. (HR, YS 00041 — 42)
At the March 12, 2009 public hearing, Yellowstone's counsel argued that Yellowstone would
accurately be described as a single housekeeping unit. He read the NBMCs definition of a
single housekeeping unit into the hearing record. He stated that the residents are the functional
equivalent of a traditional family, and they were an interactive group. He noted there was a
common area, and stated that each resident is responsible for their own meals, expenses and
chores. However, Yellowstone's counsel did not assert at the hearing that Yellowstone was not
in a direct contractual relationship with its residents, or that the residents occupied the dwelling
units under a single written lease, or that Yellowstone management did not determine the
household makeup. (HR, YS 01525 — 01528)
Near the end of the March 12 hearing the Hearing Officer stated that he was persuaded by
staffs analysis with respect to the single housekeeping unit issue. (HR, YS 01556) The
Hearing Officer's Resolution of Denial states, "Applicant's resident clients may be an interactive
group of persons jointly occupying a single dwelling unit who share common areas, but the
applicant's own submittals indicate there is no joint responsibility for meals or expenses, no
single written lease (or any written lease at all), and the makeup of the household is determined
by the applicant rather than the residents." (HR, YS 01636)
With this threshold issue resolved, the Hearing Officer determined that two of the five findings
required by NBMC Section 29.98.025(B) could not be made. Some of the evidence in the
administrative record that supports the Hearing Officer's decision is listed below:
A. NBMC §20.98.025(B)(2) - Finding No. 2: The requested accommodation is
necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling. HEARING OFFICER'S DETERMINATION:
This finding cannot be made.
Discussion:
The Hearing Officer's Resolution of Denial of Request for Reasonable Accommodation No. 1
stated that the finding of necessity could not be made. (HY, YS 01635) The Hearing Officer
appears to have based his decision on facts presented in the February 20, 2009 staff report's
analysis, and from staffs testimony at the March 12, 2009 public hearing that the request to be
treated as a single housekeeping unit was a request that was broader than necessary to afford
disabled residents an equal opportunity to use and enjoy a dwelling. (HR, YS 01556)
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 7
Examples of evidence in the record that support the Hearing Officer's decision:
Request to be treated as a single housekeeping unit is a broader request than necessary to
afford disabled individuals an equal opportunity to use and enjoy a dwelling.
Staff report for February 20, 2009 use permit and reasonable accommodation hearing —
"jA] request to be considered a Single Housekeeping Unit is essentially a request to be
exempted from all of the provisions of Ordinance No. 2008 -05 which place any sort of
reasonable regulation on the operations of residential care facilities. This is not
necessary, because there are many more narrowly tailored accommodations that could
enable facility residents to enjoy the housing of their choice without depriving the
surrounding neighborhood of reasonable conditions that mitigate the adverse secondary
impacts that emanate from this facility." (HR, YS 00040)
Staff testimony at March 12, 2009 hearing (Wolcott) — "Would disabled individuals be
unable to live in a dwelling without this specific accommodation? . . . This is an
unnecessarily broad exemption, and we can find other ways to accommodate that don't
so severely undermine our Zoning Code. Alternative requests (that are more
reasonable) can be formulated that could get to that result."(HR, YS 01522)
B. NBMC §20.98.025(B)(4) - Finding No. 4: The requested accommodation will not
result in a fundamental alteration in the nature of the City's zoning program, as
"fundamental alteration is defined in Fair Housing Laws and interpretive case law.
HEARING OFFICER'S DETERMINATION: This finding cannot be made.
Discussion:
When a reasonable accommodation request is made, the City must grant the request if it is both
necessary to afford a disabled individual an equal opportunity to use and enjoy a dwelling, and
reasonable. A request may be considered unreasonable if granting the requested
accommodation would result in an undue financial or administrative burden on the City, or a
fundamental alteration in the nature of a City program. "Fundamental alteration" has also been
described as "undermining the basic purpose the requirement was put in place to achieve."
the fundamental nature of the City's zoning program (including evidence of secondary impacts
that use permit or reasonable accommodation conditions would attempt to mitigate, as single
housekeeping units are not subject to such conditions.):
• Staff report for February 20, 2009 hearing —
The purpose of the NBMC's definition of Single Housekeeping Unit is to allow
staff to determine whether groups of related or unrelated individuals are living
together in a dwelling as a single housekeeping unit. This definition is necessary
because of the persistent attempts by landlords to establish illegal boarding
houses in dwellings within the City.
Groups living as a single housekeeping unit can live together in any residential
zone in Newport Beach. Groups not living as a single housekeeping unit are
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 8
prohibited from establishing residences in any of the City's residential zones.
There is, however, and important exception to the total prohibition of groups not
living as a single housekeeping unit — groups not living as a single housekeeping
unit in residential care facilities of any size.
Essentially, all residential care facilities have already received a reasonable
accommodation from the NBMC's restrictions on groups not living as a single
housekeeping unit. The NBMC provides many opportunities for new facilities to
establish ...
Although the residents of the residential care facilities receive preferential
treatment because of their disabled status, the NBMC's Zoning Code also
applies regulations ... to ensure that the fundamental purposes of the Zoning
Code can be achieved, and so that adverse secondary impacts higher density
residential care facilities have on the surrounding neighborhood can be mitigated.
If the facility is treated as a Single Housekeeping Unit, it is entirely exempt from
any of the reasonable controls the City might place on it. The City would be
unable to make any reasonable effort to reduce the adverse secondary impacts
such as noise, overcrowding, and unruly behavior by residents of applicant's
facility to the detriment of neighbors, in addition to finding solutions to the
applicant's disproportionate consumption of available on- street parking, and the
overconcentration of facilities within a single block ...
(HR, YS 00014)
• Staff report for February 20, 2009 hearing — "... neighbors of the facilities ... report
increasing negative secondary impacts on the neighborhood as more of the applicant's
facilities established there in recent years. The impacts reported include:
• Litter in the neighborhood which complainants attribute to the applicant's
facilities, including cigarette butts, soda cans and beer cans and bottles;
• Family and other visitors to the facilities;
• Facility residents traveling in groups between one facility and the others;
• Meetings held regularly at one or more of the applicant's facilities, with outside
attendees;
• Excessive use of on- street parking by facility residents and their guests;
(HR, YS 00045)
• Correspondence from neighbor (J. Walker) for February 20, 2009 hearing — "in closing I
would comment that I feel a change in the atmosphere of the neighborhood since
Yellowstone Women's First Step House inc. has purchased properties in our
development. The feel of a residential neighborhood is diminished. Today there is a
much stronger feel of an apartment complex or even a hoteymotel complex ... 1 believe
that facilities could be run in a residential neighborhood, but careful attention to detail is
paramount. The facilities must be closely supervised 2417. Policies and procedures to
ensure the temporary residents exhibit a demeanor that is respectful of the permanent
residence should be strongly considered .. While much of what I would like to see put in
place falls to (Yellowstone) ...l also feel that it is the responsibility of the city to include
provisions for review, monitoring and reporting, on a routine basis, those conditions and
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 9
stipulations established and defined by any use permit that might be granted." (HR, YS
01104-05)
Evidence concerning parking and traffic impacts.
Staff report for February 20, 2009 hearing — "The Institute of Transportation Engineers
(iTE) establishes and publishes standards for trip generation rates based on the use
classification of a site. In the case of a single family dwelling, the standard trip rate is
based on 9.57 average daily trips per dwelling. Trip rates for residential care facilities
are based on 2.74 average daily trips per each occupied bed. Based on these
standards, a 12 -bed residential care facility would generate approximately .32.88
average daily trips. The evidence shows this facility will generate average daily trips
substantially in excess of surrounding single - family dwellings." (HR, YS 00046)
.. a 17 -bed residential care facility would generate approximately 47 average daily
trips." (HR, YS 00315)
.. an 18 -bed residential care facility is estimated to generate approximately 49.32
average daily trips substantially in excess of surrounding single family dwellings." (HR,
YS 00584)
Applications for use permits submitted May 20, 2008 — In Section H (Transportation and
Parking) of the application, the question "Will clients residing on -site be allowed to use
personal vehicles and /or keep them on -site or nearby?" was answered "no." The
question "If No, describe other modes of transportation that clients will use (bus, other
transit, bicycle, other)" was answered "Bus — Carpools, bikes.") (HR, YS 00909)
Applications for reasonable accommodation submitted May 20, 2008 (HR, YS 00886-
87):
In answer to City's Question 10, "Describe available on -site parking resources
and the staff and visitor parking plans; the applicant answered "The property has
a two -car garage and driveway. This parking is ample for all of the propertys
needs. The residents at the property do not have automobiles and rely upon
public transportation and /or carpooling."
In answer to City's Question 11, "Describe client's ability to drive and operate a
vehicle while residing at the facility," the applicant responded, "The tenants'
vehicles are not allowed to be parked and /or utilized at the property."
o In answer to City's Question 12, "Does the facility provide transportation services
(i.e. transportation to school, jobs, medical treatment, or other activities) ?" the
applicant answered, "No."
Correspondence from applicant's counsel, January 29, 2009 — "Parking on the Property
is reserved for the manager and the assistant manager, thus the maximum number of
cars on the Property at any one time will be two. Residents are not permitted to park on
the Property. Visitors are not permitted on the Property therefore there are no visitor
parking issues . . . The residents do not use cars. Instead, they rely on public
transportation to and from the Property... Though the home generally does not provide
Yellowstone Women's First Step House, inc. — Appeal to City Council
December 2, 2009
Page 10
transportation services, the home does provide some basic transportation to the nearby
treatment facility and to St. John church. Both locations are within ten minutes of this
home. There is a morning pickup at 8 a.m. and an evening drop off at 4 p.m. This is the
only transportation provided. The vans that transport the residents are not parked on
site. When not in use, the vans are kept in another city." (HR, YS 01002)
Correspondence from applicant's counsel, February 13, 2009 — "it has recently come to
my attention there may be discrepancies between materials Yellowstone submitted with
respect to its use permit application and requests for reasonable accommodation ...
The purpose of this correspondence is to clarify these inconsistencies ... Parking in
May 2008, when the original Yellowstone use permit and reasonable accommodation
applications were submitted to the City, Yellowstone requested that four cars be
permitted to park at the 1561 Indus property. There is adequate room for four cars to
park at 1561 Indus, however, only the two resident managers for the home park on site.
With respect to the three other Yellowstone properties, it has consistently been
Yellowstone's position that only the two resident managers of the homes are allowed to
park vehicles on site." (HR, YS 01011)
Correspondence from neighbor (J. Walker), submitted for February 20, 2009 hearing —
"While Yellowstone Women's First Step House Inc, group may tell the city that `clients'
are not allowed to have vehicles during residency ... ( duuring the months that the facility
next to my home has been in operation I have had `clients' park in front of my property
rather than in the empty driveway of the Yellowstone Women's First Step House Inc.
facility ... There are vehicles coming and going, doing drop offs, or 'visitor' standing or
parking, and the duration of this activity goes from very early in the morning (5 am) to
very late at night (past 11 pm and sometimes well past midnight.) And then there are the
weekly evening meetings that are held at some of these facilities. While occasionally
(other) residences of the neighborhood may have a gathering, party or club meeting,
these are not routine. The parking impact to the surrounding street of the meeting
house is significant " (H R, YS 01102 — 03)
Correspondence from neighbor (Groskreutz), submitted for February 20, 2009 hearing —
"Although we have been told by Yellowstone officials at their own meetings that none of
their residents are allowed to drive, we have evidence that the exact opposite is true,
there are residents who are driving cars or trucks and parking them on our streets, many
times loaded with personal possessions for extended periods of time." (HR, YS 01039)
"On their meeting nites and during the day and on weekends, we cannot use any parking
in front of our own homes because the spaces are full of attendees for these meetings. I
have posted notes on vehicles on several occasions during their meetings in the past
years, telling the owners that the next time they park illegally i am going to have their car
towed because it was blocking my driveway." (HR, YS 01039)
Correspondence from neighbor (Robertson) submitted for February 20, 2008 hearing —
... my biggest concern are the assertions that (a) transportation is not provided; and (b)
that residents are not allowed to have cars. My personnel observations are: (a) that
Yellowstone operates two large capacity vans on a routine basis. Over the years I have
seen these vans pick up and drop off residents at both the men's and women's
residences, in particular 1561 Indus Street and 20172 Redlands Drive. These vans (one
of which has 'VANPOOL' stenciled on the windows) have lately been parked each night
in the neighborhood, typically alongside 20172 Redlands Drive near the intersection of
Yellowstone Women's First Step House, inc. — Appeal to City Council
December 2, 2009
Page 11
Redlands Drive and Pegasus Street. Additionally I have observed private vehicles pick-
up and drop off multiple residents at 20172 Redlands. These facts on the ground seem
to contradict statements made by the applicant. "(sic) (HR, YS 01090)
Correspondence from neighbor (Harvey) for February 20, 2009 hearing — "Contrary to
Yellowstone's past assertion that its residents do not park cars in our neighborhood, we
have observed that many of their residents actually do park cars on our streets,
especially along Pegasus Street adjacent to the 1571 Pegasus Street facility and on
Redlands Drive adjacent to the 20172 Redlands Drive facility. in addition, a large
passenger van associated with Yellowstone is often parked at night across the street
from the 20172 Redlands Drive facility. We also observe numerous cars entering and
leaving our neighborhood containing visitors to facility residents. These activities
generate traffic out of proportion to the number of facilities. " (HR, YS 0111)
• Testimony (B. Walker) at February 20, 2009 hearing — °[Me've had to go over and
pound on the door ourselves to say, you know, 'Get your stinking car out of our
driveway.' ... there is a problem with the amount of concentration of the vehicles that
we have associated with the various houses. "(HR, YS 01182)
• Testimony (McDonough) at February 20, 2009 hearing — °The vehicles that transport
them in the morning, there's one car after another picking people up. In the afternoons,
there's cars coming one after another. They say there's no parking problem. I've had
cars parked blocking my driveway. Several of the residents that have cars have blocked
the driveway. "(HR, YS 01192 — 93)
Evidence concerning visitors, interaction between residents of different facilities, and meetings
held onsite:
Correspondence from applicant's counsel, January 29, 2009 — "Interaction Within the
Prop :... (AJlthough Yellowstone owns four such homes in the Newport Beach area,
there is no interaction between the homes. in other words, residents of the Property do
not meet with the residents of other Yellowstone properties for dinners or other
gatherings. Each home has its own residents and the residents of the home never
interact with residents of a different home. "(HR, YS 01002)
• Correspondence from applicant's counsel, February 13, 2009 — "lt has recently come to
my attention there may be discrepancies between materials Yellowstone submitted with
respect to its use permit application and requests for reasonable accommodation ...
The purpose of this correspondence is to clarity these inconsistencies. .
Group Meetings Neither group treatment meetings nor individual treatment meetings
occur on any of the four Yellowstone properties. All treatment is performed off site in
Costa Mesa. The only meetings that occur at each of the four homes are weekly house
meetings with the residents to discuss potential new residents and other administrative
matters...
Visitors Visitation with family and friends occurs on Sundays at Yellowstone's Costa
Mesa facility." (HR, YS 01010 —11)
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 12
Correspondence from neighbor (Robertson) for the February 20, 2009 hearing — "The
report states that the applicant does not allow residents on any other Yellowstone
Property However, this statement is negated by personal observations of residents from
at least three of the four residences co- mingling at each other's residences. I have seen
women from the Pegasus house walk up to (the men's facility at) Redlands, and on one
occasion observed several women leave the Redlands house early in the morning
before 7:00 a.m ... I often see residences from the Redlands house walk up to the house
at 1621 Indus. Additionally on at least two occasions I have seen large groups walk up
to the house on 1621 Indus mid -week, mid - morning. The assumption being made is that
there are large group functions ... being held onsite. "(sic) (HR, YS 01090)
• Correspondence from neighbor (Walker) for February 20, 2009 hearing— "They did not
have a meeting at the Redlands house last week and have not for about 3 weeks, but
when they do, the meetings seem to start about 6 :00 and breakup in about 90 mins... .
j77hey have held meetings there that seemed to draw about a dozen cars." (HR, YS
01091)
• Correspondence from neighbor (McDonough) submitted for February 20, 2009 hearing —
"Trash, bottles and cigarette butts on the street and parkways has increased, parking of
vehicles for several days at a time is common, and groups from meetings mill about
talking loudly. These issues cause a negative impact on the neighborhood." (HR, YS
01042)
• Correspondence from neighbor (Harvey) for February 20, 2009 hearing — "On several
occasions we have observed a line of men walk from the Yellowstone facility at 20172
Redlands Drive, enter the adjacent Yellowstone facility for women at 1621 Indus Street,
and stay there for more than an hour. We believe that this indicates the facility is
providing on -site services, for which a State license is required." (HR, YS 01111)
• Testimony (B. Walker) at February 20, 2009 hearing — "This house ... 1561 is the only
one of the four that has a swimming pool. And during the summer, the men come from
the men's house, people come from the other houses, come over and have swimming
parties ... we were led to believe that only these people would be using that property,
and that's just not the truth ... [Aft the 1621 house, for years, there have been what
appeared to be orientation sessions ... that have 20, 30, 40 people have been brought."
(HR, YS 01181)
Evidence concerning impacts of increase in density of population:
• Correspondence from neighbor (B. Walker) for February 20, 2009 hearing — "My primary
objection to these use permit requests is the substantial increase in density that this
represents for this neighborhood and the associated problems that come with a higher
density usage than was originally planned for.
"The use permits request permission to raise the density from the original. design of a
probable max of 6 per household to 18 (plus supervision ?) per household.. .
"The increase in density has many environmental effects on the neighborhood. When
these homes were planned, the target household was for a family unit of 5-6 with 5
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 13
bedrooms and 3 baths (the typical floor plan, encompassing about 2400 square feet)
and a two car garage ...
'Parking will become a worse problem with the addition of more cars since the houses
only have 2 off -street parking spaces at most (the garages are filled with `stuff and not
used for parking). When the house at 20172 has meetings (previously every Tuesday at
about 6:00 p.m.) both sides of two streets were lined with cars, passage was more
difficult.
"Waste generation per house is substantially increased with several of the houses
putting out 4 overflowing 90 gallon trash cans per week...
"Late night/early morning traffic as group home residents who do not drive are picked up
and dropped off or just sitting in the street as people talk — not a big deal with regular
density, but with a doubling of the density, it just happens more often and becomes an
irritant." (HR, YS 01092)
Correspondence from neighbor (J. Walker) for February 20, 2009 hearing —
'Infrastructure ...specifically sewers and storm drains. The sewer and storm drain
systems for this neighborhood were designed 40+ years ago. In my 20+ years of
residency backups have been an issue. . . Increasing occupancy density 3x is a
frightening proposal. What has/will the city do to help mitigate the impact for an
occupancy rate well over the imagined occupancy level at time of systems design ?"
(HR, YS 01102)
Evidence concerning change of character of neighborhood, and institutionalization:
Correspondence from neighbor (Devine) for February 20, 2009 hearing — °I have
gathered the number of residents on each of the streets for comparison.
• "On Pegasus Street, where there are 28 homes, 26.8% of the population on
those two blocks would be recovering alcoholics and addicts if the exception was
permitted.
• "On Indus Street, where there are 14 homes total, 47% of the population on
that street would be recovering alcoholics or addicts.
• "On Redlands Street, 75 percent of the population would be recovering addicts
and alcoholics if the application was approved, and the exemption permitted.
°Considering those are three of the five streets in our neighborhood, that is a huge
change in the demographics of our neighborhood. Can you really say it's a NIMBY
issue if over half of our population is short-term recovering addicts and
alcoholics?
°Finally, I would like to remind everyone that the normal stay indicated on the
Yellowstone Recovery website is 90 days, if each of these applications is granted, and
the exemptions allowed, between these four homes that would mean 264 people coming
into our neighborhood each year who are not long -term residents. On those same
streets, there are 104 people who are permanent residents.
Yellowstone Women's First Step House, inc. — Appeal to City Council
December 2, 2009
Page 14
"How can you retain the residential character of a neighborhood if 71% of the people
coming and going in the year are NOT residents for more than 90 days ?" (HR, YS
01115)
Discussion:
As mentioned in Footnote 1, above, the Hearing Officer did not rule on this request, because
granting the request to permit more residents than use permit conditions could allow was related
to Yellowstone's use permit conditions, and all use permits were denied. However, the following
information and evidence before the Hearing Officer would have supported a denial of Request
No. 2.
A. NBMC §20.98.025(B)(2) - Finding No. 2: The requested accommodation is
necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling.
Examples of evidence that would have supported a decision that the reauested accommodation
was not necessary to provide one or more individuals with a disability an equal opportunity to
use and enjoy a dwelling:
(Note: Staff recommended granting the accommodation as to current residents of Yellowstone
facilities, so that disabled individuals were not deprived of their current housing, and to allow
them to complete their intended stay. Evidence that the accommodation is not necessary
pertains to prospective facility residents.)
Staff report for February 20, 2009 public hearing — As to prospective residents (at the
facilities) applicant's counsel states that the accommodation is necessary because the
prospective residents (of the facilities) have financial constraints caused by their
disability, and would be unable to afford to rent a dwelling if the additional beds) (at the
facilities) were unavailable to them because of the occupancy restrictions of NBMC
Section 20.91A.050(C)(2) (HR, YS 00863 — 64) ...
'it is plausible that persons in early recovery from addiction tend to have lower incomes
than they had before addiction temporarily reduced their employment opportunities. This
will necessitate shared living arrangements in one form or another. Adding beds (at the
facilities) could afford ... additional disabled individual(s) the opportunity to use and
enjoy a dwelling.
"The analysis does not stop at the financial needs of the potential residents, however.
Were that the case, the City might be obligated to authorize an unlimited number of
residents at the applicant's facilities at greatly reduced rents, the population of
recovering alcoholics with financial limitations is vast. Even the Ninth Circuit has noted
that mandating lower rents for disabled individuals would probably not be considered a
reasonable request. (See Giebeler v. M &B Associates, 343 F.3d 1143, 1154 (9"' Cir.
2003))" (HR, YS 00864 -65)
Yellowstone Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 15
Staff report for March 12, 2009 hearing — "The applicant states that each facility requires
15 residents in order to be financially viable, and provides a general summary of
average income and expenses for all four facilities. In some federal cases in which a
sober living or other group home made a similar statement in support of its request for
an accommodation allowing additional residents, courts found that the accommodation
should be granted. However, the courts generally consider more detailed, verified
financial information to reach that conclusion. (See Oxford House - Evergreen v. City of
Plainfield, 769 F.Supp. 1329 (1991))
'The applicant has not submitted financial information specific to each facility, but it has
supplied an average cost analysis for its four facilities overall. The analysis was not
signed under penalty of perjury, and although staff requested it repeatedly, the applicant
did not submit specific evidence such as mortgage statements or utility bills by the date
this report was prepared. Therefore, staff has performed a financial needs analysis
based on the information supplied by the applicant, and other information publicly
available on the applicant's website.
"The applicant states that in general, its weekly fees are based on a sliding scale from
$50 to $160 per week, with an average rent of $100 per resident per week. With 16
residents (the number of resident clients; facility managers do not appear to pay rent)
the applicant reports the average monthly income from each house is $6,400.
`The average monthly expense for each house is reported by the applicant to be around
$6,200, with an average mortgage of $4,5001month, $800 1month for utilities ... and
$900 1month for food (the May 20, 2008 reasonable accommodation application states
that residents are responsible for their own meals; the $900 may represent basic
supplies.) Applicant reports an average monthly expense of $6,200, leaving only a $200
monthly profit. Applicant has stated that it relies on contributions from the community to
keep it from operating at a loss.
... Yellowstone's own website indicates that income and expense calculations may be
inaccurate. The website's 'Our Fees' page (dated 2008) states that fees for sober living
are $160 - $180 per week. Using the applicant's own reporting formula, this represents
an average of $170 per resident per week. With 16 paying residents (resident staff may
not be paying rent), this would result in an average monthly income per house of
$10,880. If the reported average expense of $6,200 is accurate, each facility housing 16
residents generates a monthly profit of $4,680. ($56,160 per year for each house of the
three with 16 residents; or an estimated $168,480 total for the three facilities located at
1621 Indus Street, 1571 Pegasus Street, and 20172 Redlands Drive.)
"For the facilities currently housing 16 paying residents, if the resident count were
reduced to 11 paying residents (of the maximum 13 occupants permitted under the
operating standards, two are Yellowstone staff), the monthly income would be $7,480.
Without knowledge of the actual mortgage and utility costs, staff cannot say whether this
facility would actually operate at a monthly profit of approximately $1,280, or
approximately $15,360 per year ($46,080 total for three facilities currently housing 16
residents each), but this profit range seems sufficient for a non - profit that raises funds
from the community to keep from operating at a loss. Therefore, staff does not agree
with the applicant's contention that it needs 15 residents at each facility to be financially
viable. " (HR, YS 001359 - 60)
Yellowstone Women's First Step House, Inc. - Appeal to City Council
December 2, 2009
Page 16
B. NBMC §20.98.025(B)(4) - Finding No. 4: The requested accommodation will not
result in a fundamental alteration in the nature of the City's zoning program, as
"fundamental alteration is defined in Fair Housing Laws and interpretive case law.
Staff report for February 20, 2009 hearing - "Permanently allowing five additional beds
(at one home) in excess of the highest number allowed under the operational standards
of the NBMC could undermine the basic purpose which the requirement seeks to
achieve. The basic purpose of the bed count limits is to draw a line at a reasonable
density for a business providing residential recovery services within a residential
neighborhood. Five additional beds (at one home) can undermine the fundamental
purpose of the zoning program, unless Yellowstone's program impacts are eliminated or
substantially reduced at other facilities.
Appellant may argue that five extra beds does not undermine the basic purpose the bed
count restriction seeks to achieve, but the line must be drawn somewhere. The City
Council found that line was two residents per bedroom plus one additional resident.
These regulations are to ensure that the fundamental purposes of the Zoning Code can
be achieved, and so that secondary impacts of the higher density residential care
facilities on the surrounding neighborhood can be mitigated.
... (!jf the use permits are granted at each facility, and each facility receives the
reasonable accommodation requested here, the extra 16 individuals could trigger an
overconcentration that contributes even further to the change in the character of the
neighborhood. The residents living in rive (sic) recovery facilities located between 100
and 400 feet from each other are likely to create a quasi - institutional environment within
the neighborhood.
"in a joint statement on the Fair Housing Act, the Department of Justice and the
Department of Housing and Urban Development have recognized it would adversely
affect persons with disabilities and would be inconsistent with the object of integrating
persons with disabilities into the community if a neighborhood came to be composed
largely of group homes. They agree that it is appropriate to be concerned about the
setting for a residential care facility, and that a consideration of overconcentration may
be considered in this context." (HR, YS 00867 - 68)
Staff report for February 20, 2009 public hearing - "The applicant's possible
misstatements of easily verifiable facts (such as policies about no meetings, no visitors,
and no inter - facility interaction), and early written and oral representations that two of the
facilities held ADP licenses (which they never had), causes staff concern about the
overall responsibility of the operator, and its ability to successfully manage both its
residents and the negative impacts its facilities have on the surrounding neighborhood.
Allowing facilities that are not well run to operate with a high concentration of residents
can lead to a further alteration in the character of the neighborhood. if a use permit in
this location is granted, it may be necessary to scale back rather than expand the
population of this facility, and increase supervision and enforcement of existing house
rule to mitigate the impact of the facility on the surrounding neighborhood." (sic) (HR, YS
00869- 70)
Yellowstone, Women's First Step House, Inc. — Appeal to City Council
December 2, 2009
Page 17
Staff report for February 20, 2009 public hearing — °The Institute of Transportation
Engineers (ITE) establishes and publishes standards for trip generation rates based on
the use classification of a site... Based on these standards, an 18 -bed residential care
facility would generate approximately 49.32 average daily trips. A 13 -bed facility would
generate 35.62 average daily trips, arguably an appreciable difference in traffic
generation." (HR, YS 00871)
CONCLUSION:
Staff concludes that there is substantial evidence in the record to support the Hearing Officer's
decisions to deny with prejudice Reasonable Accommodation No. 2009 -004, Reasonable
Accommodation No. 2009 -005, Reasonable Accommodation No. 2009 -006 and Reasonable
Accommodation No. 2009 -007.
Staff recommends that 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.
ATTACHMENT 2
Hearing Record
[Public copy available for review at City Clerk's
office or online at www.newportbeachca.gov under
City Government >Current Projects and Issues
>Group Homes >Resolutions]
Staff Report: Yellowstone - Appeal of Hearing Officer's Denial
of Use Permits and Reasonable Accommodation
CITY OF NEWPORT BEACH
MEMORANDUM
TO: Honorable Mayor and Members of the City Council
FROM: Janet Johnson Brown, Associate Planner
Catherine Wolcott, Deputy City Attorney
DATE: December 2, 2009
RE: Yellowstone Women's First Step House, Inc. — Staff Analysis and
Recommendation Regarding Hearing Officer's Decisions
1561 Indus Street:
Use Permit No. 2008 -034 (PA2008 -105)
1621 Indus Street:
Use Permit No. 2008 -035 (PA2008 -106)
1571 Pegasus Street:
Use Permit No. 2008 -036 (PA2008 -107)
20172 Redlands Drive:
Use Permit No. 2008 -037 (PA2008 -108)
This memorandum has been prepared to accompany the staff report submitted by the Office of
the City Attorney regarding the appeal of the Hearing Officer's decision to deny with prejudice
the use permits submitted by Yellowstone Women's First Step House, Inc ( "Yellowstone "). This
memorandum is intended to highlight some of the evidence presented to the Hearing Officer in
the administrative record and during public testimony that supports the Hearing Officer's
decision.
The staff report submitted by the Office of the City Attorney provides the background of the
application process, the public hearings, the Hearing Officer's actions, the filing of these
appeals, and the applicant's stated grounds for the appeals. The City Attorney's staff report
also discusses the "substantial evidence" standard of review that Newport Beach Municipal
Code (NBMC) Section 20.98.025 establishes for appeals of Hearing Officer actions granting or
denying reasonable accommodation.
ISSUE:
Did substantial evidence support the Hearing Officer's denial of Yellowstone's applications for
use permits to allow the continued operation of existing unlicensed adult residential care
facilities for each of its four Newport Beach locations?
RECOMMENDATION:
Staff recommends the City Council:
Review the administrative record, including the analysis in the staff reports for the public
hearings, and the transcripts of the hearings; and
City Hall a 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 2
2. Deny the appeals filed by Yellowstone, and uphold and affirm the Hearing Officer's
decisions to deny with prejudice Use Permit No. 2008 -034, Use Permit No. 2008 -035,
Use Permit No. 2008 -036 and Use Permit No. 2008 -037; and
3. Direct staff to prepare resolutions denying the appeals, sustaining and affirming the
Hearing Officer's decisions, and adopt the resolutions at the next City Council meeting.
BACKGROUND:
Yellowstone operates unlicensed residential care facilities providing a sober living environment
at four locations in the West Santa Ana Heights area of Newport Beach. The facilities are
located in four single - family homes in the Santa Ana Heights Specific Plan, in an area
designated RSF (Residential Single Family). Yellowstone applied for four separate use permits
that would allow them to continue to house 12 female residents at 1561 Indus Street, 17 female
residents at 1621 Indus Street, 18 female residents at 1571 Pegasus Street, and 18 male
residents at 20172 Redlands Drive, for a total of 65 resident clients. All four properties are
located within approximately 320 feet or less of each other.
West Santa Ana Heights was an unincorporated area under the jurisdiction of the County of
Orange at the time the four facilities were established. The City of Newport Beach completed
the annexation of West Santa Ana Heights on January 1, 2008, prior to the adoption of
Ordinance 2008 -05. These uses were still in operation at the time the City enacted Ordinance
No. 2008 -05, and the effective date of the Ordinance on February 22, 2008.
NBMC Section 20.91A.020 requires nonconforming uses in residential districts that were
rendered nonconforming by the adoption of Ordinance No. 2008 -05 to apply for and receive a
use permit to continue operation at their current locations. Yellowstone's facilities would be
classified as a "Residential Care Facility, General - Unlicensed," and are located in a RSF
(Residential Single Family) district where, under Ordinance No. 2008-05, such uses are not
permitted or conditionally permitted. Yellowstone applied for a use permit for each of its
Newport Beach facilities within the time period required by Ordinance No: 2008 -05.
Yellowstone also applied for a general reasonable accommodation, but did not initially request
an exemption from any specific provision of the NBMC. (Further procedural history of
Yellowstone's reasonable accommodation applications is detailed in the staff report submitted
by the Office of the City Attorney for this matter.)
REASONS FOR APPEAL AND SUBSTANTIAL EVIDENCE TEST
Yellowstone filed applications to appeal the Hearing Officer's decision to deny the use permits
to the City Council stating as the reason for appeal of the denial of each application that "The
home operates such that the required findings to grant a Conditional Use Permit can be made.
Therefore, the City of Newport Beach improperly denied the request, with prejudice."
Pursuant to NBMC Section 20.91A.040, an appeal of a Hearing Officer's decision on use permit
applications for property located in residential districts is subject to the "substantial evidence"
standard of review. On appeal, the City Council reviews the administrative record from the
proceedings, and determines whether the Hearing Officer's decision was supported by
substantial evidence in the record. Substantial evidence may include facts, and expert opinions
supported by facts, but not argument, speculation, unsubstantiated opinion, or clearly erroneous
evidence. If the Hearing Officer's decision is supported by substantial evidence, it must be
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 3
sustained by the City Council. If the Hearing Officer's decision is not supported by substantial
evidence, the Council may reverse, modify and /or remand the matter to the Hearing Officer.
Even if there was evidence in the record that could be interpreted as supporting the findings
required to grant the use permits, the question before the City Council is not whether the
evidence, interpreted differently, might lead a decision -maker to an opposite or alternate
conclusion. Although facts in the record might lead the City Council to a conclusion different
from the Hearing Officer's, the City Council may not overturn the Hearing Officer's decision on
the grounds that an alternative conclusion based on the same set of facts might have been
equally reasonable. For a complete discussion of the kind of evidence that is considered
"substantial evidence' please refer to the staff report submitted by the Office of the City
Attorney.
This memorandum presents discussion and highlights of some of the evidence provided in the
administrative record for the use permit hearings in support of the Hearing Officer's decision on
March 12, 2009, to deny with prejudice Use Permit No. 2008 -034, Use Permit No. 2008 -035,
Use Permit 2008 -036 and Use Permit 2008 -037.
USE PERMIT HEARINGS AND HEARING OFFICER'S DECISION:
Discussion:
A noticed public hearing was conducted by the Hearing Officer on February 20, 2009, taking
testimony from staff, the applicant and members of the public. At the conclusion of the hearing,
the Hearing Officer concurred with staffs recommendation to deny Use Permit No. 2008 -034 for
the facility located at 1561 Indus Street, and Use Permit No 2008 -036 for the facility located at
1571 Pegasus Street, subject to the findings in the staff reports, and directed staff to prepare
resolutions for denial with prejudice. The Hearing Officer also concurred with staffs
recommendation to approve Use Permit No. 2008 -035 for the facility located at 1621 Indus
Street, and Use Permit No. 2008 -037 for the facility located at 20172 Redlands Drive at a
reduced bed count of 15 clients per facility. The hearing was continued to March 12, 2009, to
adopt the resolutions and take action on the applications for requests for Reasonable
Accommodation No.'s 2009 -04, 2009 -05, 2009 -06 and 2009 -07.
At the March 12, 2009 public hearing, staff recommended that the Hearing Officer reopen the
public hearing to take testimony from the applicant, staff and the City's legal,.counsel, and the
public.' (HR, YS 01475 -81) Staff made the request to reopen the public hearing because of
testimony provided by the applicant's legal counsel during the February 20, 2009 hearing in
which Yellowstone cited a number of California cases, and appeared to assert they had vested
rights as a nonconforming use that should excuse them from having to apply for a use permit.
(HR, YS 01156 -65) The Hearing Officer ruled that the hearing be reopened for the purpose of
reviewing and considering the position taken by staff. (HR, YS 01481)
At the conclusion of the March 12, 2009 hearing, the Hearing Officer determined the
Yellowstone facilities were not lawfully established uses when they were established within the
County of Orange unincorporated territory known as West Santa Ana Heights, and were
1 All references to the administrative record are designated "HR, YS" followed by the page numbers. The
designation means Hearing Record, Yellowstone.
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 4
therefore not qualified to seek a use permit to continue the use in their current locations. (HR,
YS 01511 -12)
Establishment of Use:
As noted above, the Yellowstone properties are located in an area referred to as West Santa
Ana Heights, which was annexed into the City effective January 1, 2008. Prior to annexation,
West Santa Ana Heights was an unincorporated area under the jurisdiction of the County of
Orange. When the use changed from that of a single family dwelling to a sober living facility,
the use would have been subject to any land use regulations the County of Orange placed on
such uses at that time .2
According to information submitted by the applicant to the City (HR, YS 00144), the use of the
single family dwellings as sober living facilities were established as follows:
1561 Indus Street: 2007
1621 Indus Street: 2003
1571 Pegasus Street: 2005 3
20172 Redlands Drive: 2005
The Santa Ana Heights Specific Plan was adopted by the County in October 1986 and was last
revised by the County in 2001. When staff sought information from the County of Orange
regarding these facilities relative to code regulations that would require a use permit or other
discretionary permit for large group homes, staff was advised that the uses would have been
classified as either a "Community Care Facility" or "Congregate Care Facility." Staff was also
advised by County staff that both uses would be allowed without a use permit for up to six
residents, and that a use permit issued by the Planning Commission was required to allow for
seven to twelve residents. (HR, YS 01599 -1602)
City staff contacted the County of Orange Planning Department to obtain all records they had on
file for the four addresses after the February 20, 2009 public hearing. The only property with
any type of use permit was 1621 Indus Street, which was granted a Temporary Use Permit in
2005 to hold meetings at the site, "issued for a period of time not to exceed 10 consecutive days
and hot happen more than four times within the calendar year. This will allow for a total of 40
meetings." (HR, YS 01353)
The March 12, 2009 staff reports stated that there is no record of any use permit issued by the
County of Orange Planning Commission for a community care facility more than six residents
and less than 12 residents operated by the applicant at any of the four facility locations. (HR,
YS 01309, 01353, 01396 and 01428) However, there is documentation from the County from
2005 and 2006 that indicates that two Yellowstone facilities located at 20172 Redlands Drive
and 1571 Pegasus Street were likely operating as community care facilities for more than 12
residents without the approval of a use permit granted by the County of Orange Planning
Commission. (HR, YS 01415 -17)
'A change of occupancy for purposes of the California Building Code (CBC) also occurred when the use
changed, and to operate legally the structure was required to conform with any CBC requirements then in
?lace for the occupancy type created.
County records indicate this facility may have been established by another operator in 2003 (HR, YS
01384)
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 5
Pursuant to NMBC Section 20.91A.020, persons whose use of their property in a residential
district was rendered nonconforming by the adoption of Ordinance No. .2008-05 are qualified to
seek a use permit to continue the use in its current location. The determination of
nonconformity is established in Section 20.62.030 of the NBMC, which states a use that was
lawfully established under the laws in place at the time, but that no longer conforms to the use
regulations or required conditions for the district in which is was located because of annexation
to the City, shall be deemed to be a nonconforming use. However, "a use shall not be
considered to have been `lawfully established and maintained" and is an illegal use if it was
established or operated without required permits and licenses, including but not limited to
permits and licenses required by any federal, state, or local government agency" (italics added).
(HR,YS 01310)
During the March 12, 2009 public hearing, the Hearing Officer stated "it seems to me quite clear
from what t read here that there were permit requirements for you, and that you didn't get them."
(HR, YS 01501). At the conclusion of the public hearing, the Hearing Officer established that
the applicant had not applied for a use permit from the County of Orange, and that therefore, the
use of the single family dwellings as sober living facilities were not lawfully established uses
when they were annexed into the City. (HR, YS 01511 -12) Based on that determination, the
Hearing Officer adopted Resolutions No. HO- 2009 -003, HO- 2009 -004, HO- 2009 -005, and HO-
2009 -006 denying with prejudice the use permits submitted by Yellowstone because they were
not qualified to seek a use permit to continue at their current location. (HR, YS 01593 -1668)
Staff believes that the evidence provided during testimony and information in the administrative
record is supportive of the Hearing Officer's determination.
Required Findings for a Use Permit:
The Hearing Officer is designated by Newport Beach Municipal Code ( "NBMC ") §20.91A.040 to
approve, conditionally approve, or disapprove a use permit to allow an existing group residential
care facility to remain in operation. In order to issue a use permit, he or she must be able to
make each one of eleven (11) findings identified in NBMC §20.91.035 (A) and in §20.91A.060
following a noticed public hearing.
Although the March 12, 2009 staff reports focused on the fact that the Yellowstone facilities
were not lawfully established uses, and therefore not qualified to apply for a use permit, staff
also provided discussion relative to a required finding, as follows:
NBMC §20.91A.060 Finding A: The use conforms to all applicable provisions of NBMC
§20.91A.050. These development and operational standards are summarized as follows:
1. No secondhand smoke can be detectable outside the property.
2. Operations of the facility must comply with state and local law, and the submitted
management plan, including any modifications required by this Use Permit. Each
plan shall provide a contact name and number to the City.
3. In order to ensure that unlicensed residential care facilities operate in a manner
consistent with state and federal law and established industry standards and to
ensure that operators do not have a pattern or practice of operating similar facilities
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 6
in violation of state or local law, no services requiring a license can be provided if the
facility does not have a license for those services.
4. There shall be no more than two persons per bedroom plus one additional resident,
unless a greater occupancy is requested and granted. Occupancy must also comply
with State licensing if applicable.
5. If certification from an entity other than ADP's licensing program is available,
applicants must get that certification.
6. All individuals and entities involved in the facility's operation and ownership must be
disclosed.
No owner or manager shall have any demonstrated pattern of operating similar
facilities in violation of the law.
In the March 12, 2009 staff report, information was provided to the Hearing Officer that indicated
the Yellowstone facilities were operating as community care facilities for 12 or more residents
without the approval of a use permit granted by the County of Orange Planning Commission.
As stated in the March 12, 2009 staff report for the 1561 Indus Street facility:
All four Yellowstone facilities located in Newport Beach were established when the
properties were within the jurisdiction of the County of Orange. County zoning
regulations provided that community care facilities housing more than six residents and
less than 12 residents were permitted subject to the approval of a use permit granted by
the Planning Commission. Per documentation provided by the applicant, the
Yellowstone facilities located at 20172 Redlands Drive and 1571 Pegasus Street were
established in 2005 (although County records indicate that the Pegasus facility may
have been established in 2003), and appeared to be operating community care facilities
for more than 12 residents. There is no record of any use permit issued by the County
for a community care facility operated by the applicant at any of the four facility locations.
This demonstrates a pattern and practice by the applicant of operating community care
facilities in violation of local laws in effect at the time the Yellowstone facilities were
established. Therefore, this development and operational standard cannot be met and
NBMC Section 20.91A.060 Finding A cannot be made. (HR, YS 01310)
Staff believes the evidence in the administrative record supports the fact this finding cannot be
made because the facilities were not in compliance with state and local law and the owner or
manager has demonstrated a pattern of operating similar facilities in violation of the law.
Therefore, even if the applicant were qualified to apply as a lawfully established nonconforming
uses, a use permit cannot be granted for any of the Yellowstone facilities because not all of the
required findings can be made.
Additional Evidence in Support of Denial of Use Permits:
In the March 12, 2009 staff report, staff recommended that the Hearing Officer deny the use
permits for all four facilities. In addition to the inability to make all of the required findings, staff
also recommended denial because the proposed uses were not consistent with the purposes of
Section 20.91A.010 of the Municipal Code.
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 7
As stated in the February 20, 2009 staff report, the objectives of the code include provisions
intended to reduce, through the use permit process, the potential for overconcentration of
residential care facilities within a neighborhood and to protect public health, safety, peace,
morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of
such use. (HR, YS 00030)
As depicted in the map below identifying the 1561 Indus Street facility, there were approximately
73 group residential beds in this neighborhood at that time. (HR, YS 00027). During the
February 20, 2009 public hearing, the Hearing Officer recognized the close proximity of each
facility to the other, stating "ft's clear that there is a cluster of uses in this one particular
location." (HR, YS 01235)
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• 1561 Indus Street (12 residents)
• 20172 Redlands Drive (18 residents),
• 1621 Indus Street (17 residents),
• 1571 Pegasus Street (18 residents),
• 1501 Pegasus (8 female residents, the Lynn House, now abated).
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 8
The February 20, 2009 staff report stated there were a number of concerns and allegations
made by the neighbors of the facilities via letters and emails (HR, YS 00212 -19) regarding the
negative secondary impacts as a result of the density of such uses in the neighborhood Some
of the concerns and allegations include:
• A concentration of sober living homes in the neighborhood;
• On -site meetings which the operator states do not take place at the facility;
• Loud talking in the street and noise late at night following meetings;
• An apparent lack of adequate on -site supervision during the day and evenings;
• The influx of visitors and resident clients in the neighborhood and use of on- street
parking, and resident clients' use of vehicles
• Litter in the neighborhood, including soda cans, cigarette butts, beer bottles and other
trash in the streets, sidewalks and parkways;
• The facilities "generate massive amounts of trash;"
• Family and other guests visiting the facilities;
• Consumption of available on- street parking by facility residents and guests;
• Transport vans parked on the street, and "all over the neighborhood;"
• Facility residents traveling "around the neighborhood in groups as they go from home to
home," "often in groups of 3 or 4, with no apparent business or destination;" (HR, YS
00025 -26)
During both public hearings and in the staff reports, staff expressed concerns about the
negative secondary impacts the facilities would have on the neighborhood, as well as
inconsistencies and/or factual misrepresentation in the application documentation submitted by
the applicant. Examples of evidence in the record regarding the adverse impacts on the
neighborhood and inconsistencies and /or factual misrepresentation include:
Interaction and meetings:
• In the initial application submittal for all four properties dated May 20, 2008, a statement
is included `Residents from any one Yellowstone property are not allowed at any of the
other Properties, and there are no functions that include all residents." (HR, YS 00066)
In correspondence from the applicant to the City dated January 29, 2009, `Finally,
although Yellowstone owns four such homes in the Newport Beach area, there is no
interaction between the homes. In other words, residents of the Property (referring to
1621 Indus Street) do not meet with the residents of other Yellowstone properties for
dinners or other gatherings. Each home has its own residents and the residents of one
home never interact with residents of a different home."(HR, YS 00445)
Correspondence from the applicant dated February 13, 2009 states: "Neither group
meetings nor individual treatment meetings occur on any of the four Yellowstone
properties."
These statements are contradicted by the following:
Correspondence from neighbor (Harvey) for February 20, 2009 hearing — "On several
occasions we have observed a line of men walk from the Yellowstone facility at 20172
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 9
Redlands Drive, enter the adjacent Yellowstone facility for women at 1621 Indus Street,
and stay there for more than an hour. We believe that this indicates the facility is
providing on -site services, for which a State license is required." (HR, YS 00283)
Testimony (B. Walker) at February 20, 2009 hearing — "This house ... 1561 is the only
one of the four that has a swimming pool. And during the summer, the men come from
the men's house, people come from the other houses, come over and have swimming
parties ... we were led to believe that only these people would be using that property,
and that's just not the truth ... [A]t the 1621 house, for years, there have been what
appeared to be orientation sessions ... that have 20, 30, 40 people have been brought."
(HR, YS 01181)
• Correspondence from neighbor (Robertson) for February 20, 2009 hearing — "The report
states that the applicant does not allow residents on any other Yellowstone property.
However this statement is negated by personal observations of residents from at least
three of the four residences co- mingling at each other's residences. I have seen
women from the Pegasus house walk up to Redlands, and on one occasion observed
several women leave the Redlands house early in the morning before 7 a.m...... l often
see residences from the Redlands house walk up to the house at 1621 Indus.
Additionally on at least two occasions i have seen large groups walk up to the house on
1621 Indus mid -week, mid - morning. The assumption being made is that there are large
group functions ... being held onsite. "(sic) (HR, YS 00261 -62)
• Correspondence from neighbor (Walker) for February 20, 2009 hearing— "They did not
have a meeting at the Redlands house last week and have not for about 3 weeks, but
when they do, the meetings seem to start about 6:00 and breakup in about 90 mins... .
(77hey have held meetings there that seemed to draw about a dozen cars." (HR, YS
00263)
Personal Vehicles and Parking:
In the initial application submittal dated May 20, 2008 for all four properties, the
reasonable accommodation application includes a statement `The residents at the
property do not have automobiles and rely upon public transportation and/or
carpooling," and "The tenant's vehicles are not allowed to be parked and /or utilized at
the property." (HR, YS 00070) Yet, within the same submittal package, the use permit
application includes the following statement: `Four resident have personal vehicles,
which they park only in the garage and /or garage driveway." (HR, YS 00093)
• Correspondence from the applicant dated January 29, 2009 states "The residents do
not use cars. Instead, they rely on public transportation to and from the Property." (HR,
YS 00180)
Correspondence from the applicant dated January 29, 2009 also states: "Though the
home generally does not provide transportation services, the home does provide some
basic transportation to the nearby treatment facility and to St. John church. There is a
morning pickup at 8 a.m. and an evening drop off at 4 p.m. This is the only
transportation provided, The vans that transport the residents are not parked on site.
When not in use, the vans are kept in another city," (HR, YS 00180)
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page 10
This information is contradicted by the following
Correspondence from neighbor (Groskreutz), submitted for February 20, 2009 hearing —
"Although we have been told by Yellowstone officials at their own meetings that none of
their residents are allowed to drive, we have evidence that the exact opposite is true,
there are residents who are driving cars or trucks and parking them on our streets, many
times loaded with personal possessions for extended periods of time." (HR, YS 00214)
"On their meeting nites and during the day and on weekends, we cannot use any parking
in front of our own homes because the spaces are full of attendees for these meetings. i
have posted notes on vehicles on several occasions during their meetings in the past
years, telling the owners that the next time they park illegally I am going to have their car
towed because it was blocking my driveway." (HR, YS 00214)
Correspondence from neighbor (Robertson) submitted for February 20, 2008 hearing —
.. my biggest concern are the assertions that (a) transportation is not provided, and (b)
that residents are not allowed to have cars. My personnel observations are: (a) that
Yellowstone operates two large capacity vans on a routine basis. Over the years I have
seen these vans pick up and drop off residents at both the men's and women's
residences, in particular 9561 Indus Street and 20172 Redlands Drive. These vans (one
of which has 'VANPOOL' stenciled on the windows) have lately been parked each night
in the neighborhood, typically alongside 20172 Redlands Drive near the intersection of
Redlands Drive and Pegasus Street. Additionally I have observed private vehicles pick-
up and drop off multiple residents at 20172 Redlands. These facts on the ground seem
to contradict statements made by the applicant' (sic) (HR, YS 00262)
Correspondence from neighbor (J. Walker), submitted for February 20, 2009 hearing —
'While Yellowstone Women's First Step House Inc. group may tell the city that 'clients'
are not allowed to have vehicles during residency ... fd]uring the months that the facility
next to my home has been in operation i have had 'clients' park in front of my property
rather than in the empty driveway of the Yellowstone Women's First Step House Inc.
facility ... There are vehicles coming and going, doing drop offs, or 'visitor' standing or
parking, and the duration of this activity goes from very early in the morning t5 am) to
very late at night (past 11 pm and sometimes well past midnight.) And then there are the
weekly evening meetings that are held at some of these facilities. While occasionally
(other) residences of the neighborhood may have a gathering, party or club meeting,
these are not routine. The parking impact to the surrounding street of the meeting
house is significant. "(HR, YS 00274 — 75)
Correspondence from neighbor (Harvey) for February 20, 2009 hearing — "Contrary to
Yellowstone's past assertion that its residents do not park cars in our neighborhood, we
have observed that many of their residents actually do park cars on our streets,
especially along Pegasus Street adjacent to the 1571 Pegasus Street facility and on
Redlands Drive adjacent to the 20172 Redlands Drive facility. In addition, a large
passenger van associated with Yellowstone is often parked at night across the street
from the 20172 Redlands Drive facility. We also observe numerous cars entering and
leaving our neighborhood containing visitors to facility residents. These activities
generate traffic out of proportion to the number of facilities." (HR, YS 00283)
• Testimony (B. Walker) at February 20, 2009 hearing — "(W]e've had to go over and
pound on the door ourselves to say, you know, 'Get your stinking car out of our
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page I1
driveway.' ... there is a problem with the amount of concentration of the vehicles that
we have associated with the various houses. "(HR, YS 01182)
• Testimony (McDonough) at February 20, 2009 hearing — "The vehicles that transport
them in the morning, there's one car after another picking people up. in the afternoons,
there's cars coming one after another. They say there's no parking problem. I've had
cars parked blocking my driveway. Several of the residents that have cars have blocked
the driveway." (HR, YS 01192 — 93)
Impacts to the neighborhood and change of character of the neighborhood:
Correspondence from neighbor (Devine) for February 20, 2009 hearing — "I have
gathered the number of residents on each of the streets for comparison.
"On Pegasus Street, where there are 28 homes, 26.8% of the population on those
two blocks would be recovering alcoholics and addicts if the exception was
permitted.
"On Indus Street, where there are 14 homes total, 47% of the population on that
street would be recovering alcoholics or addicts.
"On Redlands Street, 75 percent of the population would be recovering addicts
and alcoholics if the application was approved, and the exemption permitted.
"Considering those are three of the five streets in our neighborhood, that is a huge
change in the demographics of our neighborhood. Can you really say it's a NIMBY
issue if over half of our population is short -term recovering addicts and
alcoholics?
Finally, I would like to remind everyone that the normal stay indicated on the
Yellowstone Recovery website is 90 days. If each of these applications is granted, and
the exemptions allowed, between these four homes that would mean 264 people coming
into our neighborhood each year who are not long -term residents. On those same
streets, there are 104 people who are permanent residents.
"How can you retain the residential character of a neighborhood if 71% of the people
coming and going in the year are NOT residents for more than 90 days ?" (HR, YS
01115)
Correspondence from neighbor (J. Walker) for February 20, 2009 hearing — "Since
Yellow Women's First Stone House Inc. opened business in the property next to mine i
now have more general debris in my hard, cellophane wrappers, plastic cup lids,
cigarette buts. This is change since the change of ownership ". (HR, YS 00275) And,
"in closing I would comment that i feet a change in the atmosphere of the neighborhood
since Yellowstone Women's First Step House inc. has purchased properties in our
development. The feel of a residential neighborhood is diminished. Today there is a
much stronger feel of an apartment complex or even a hotel/motel complex." (HR, YS
00276)
Testimony (J. Walker) at February 20, 2009 hearing — "Trash is an issue. While, yes, we
have trash cans like everyone else, I would say if you're having three to four times the
population in one building, is there enough curb space for the residents to put that
Yellowstone Women's First Step House, inc. Appeal
Hearing Information
December 2, 2009
Page 12
number of cans out front. They are overflowing currently. They are being placed in front
of fire hydrants, which means there' no neighborly feeling of what have concern for the
people we're living with." (HR, YS 01199)
• Correspondence from neighbor (Robertson) for February 20, 2009 hearing —
'Additionally on at least two occasions 1 have seen large groups walk up to the house on
1621 Indus mid -week, mid - morning. The assumption being made is that there are large
group functions ... being held onsite. "(sic) (HR, YS 00262)
Operations and Supervision of Facilities:
In the initial application submittal for all four properties dated May 20, 2008, the applicant
provided information stating each facility would have on -site staffing of a house manager
and assistant manager in each of the facilities.
• In correspondence from the applicant to the City dated August 22, 2008 in response to
the City's requests for additional information, the applicant provided a statement signed
by Dr. Anna Thames, Owner, that the residence located 1621 Indus Street is "currently
licensed with the State of California." (HR, YS 00392) In this same correspondence, Dr.
Thames is identified as the facility Director. (HR, YS 00391)
In separate correspondence from the applicant to the City dated August 22, 2008 in
response to the City's requests for additional information, the applicant provided a
statement signed by Steven Thames, Owner, that the residence located 20172
Redlands Drive is "currently licensed with the State of California, Alocohol and Drug
Programs." (sic) (HR, YS 00944) Dr. Thames is identified as the facility Director. (HR,
YS 00940)
• Correspondence from the applicant dated December 23, 2008 — As we have discussed,
none of the four homes is ADP licensed. To the extent that any prior representations
regarding ADP licensing were made, we have learned that same were incorrect. if you
have any questions regarding this item, or need any further explanation as to the
reasons for our error, we are more than happy to provide same." (HR, YS 00 144)
• In correspondence from the applicant to the City dated January 29, 2009, the applicant
stated "All residents are prohibited from being in the house between 8:00 a.m. and 3:00
p.m. Additionally, all residents must return to the house by 4:00 p.m.
Statements made by the applicant regarding supervision of the facilities are contradicted by
the following:
Correspondence from neighbor (McDonough) for February 20, 2009 hearing — "On a
daily basis we observe individuals wandering the neighborhood, often in group of 3 or 4,
with to apparent business or destination."
• Correspondence from neighbor (Robertson) for February 20, 2009 hearing —
Additionally on at least two occasions t have seen large groups walk up to the house on
1621 Indus mid -week, mid- morning. The assumption being made is that there are large
group functions ... being held onsite. "(sic) (HR, YS 00262)
Yellowstone Women's First Step House, Inc. Appeal
Hearing Information
December 2, 2009
Page t3
Correspondence from neighbor (J. Walker) for February 20, 2009 hearing — "I
understand that the disabilities act provides protection from discrimination for these
individuals. However as a property owner whose home this area is, I expect that the city
will not transfer burden to me. I believe that facilities could be run in a residential
neighborhood, but careful attention to detail is paramount. The facilities must be closely
supervised 2417. Policies and procedures to ensure the temporary residents exhibit a
demeanor that is respectful of the permanent residence should be strongly considered. "
(HR, YS 00276 -77)
Staff believes these letters and testimony at the public hearings demonstrate the operator's
inability to effectively manage the clients in the facilities in a manner that is respectful of the
residential neighborhoods peace and quiet enjoyment, and that approval of the uses would be
incompatible with the surrounding residential character of the neighborhood.
CONCLUSION:
Staff concludes that there is substantial evidence in the record to support the Hearing Officer's
decisions to deny with prejudice Use Permit No. 2008 -034, Use Permit No. 2008 -035, Use
Permit No. 2008 -036 and Use Permit No. 2008 -037.
Staff recommends that 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.
ATTACHMENT 3
Applications to Appeal Decision of the
Hearing Officer
Staff Report: Yellowstone - Appeal of Hearing Officer's Denial
of Use Permits and Reasonable Accommodation
...�...... •.cwoneT RFA[:N
APR-27 -2009 rM 09:37 AN DAVIS RAYfillf6l anc FAX W 949 376 3875
CITY OF NEWPORT BEACH
APPUCATION TG APPEAL DECISION OF THE HEARING OFFICER
Project Na PA: 200&106 ApplkWOM No: lies Permit No. 2006435
Nunn of AppegaM: YeOmtislohe Woman's Rai Step Hooae, lm
Dr. Anna MariisTharms
Phone: (949).878 9D00
Site Address: 1621 Indus; Newport Beady, California 92707
Date of Hoofing Officer's decNion: Aprt 14.2009
Name ofAppkmt Yellowstone WarpWa First Stop House, Ino.
(Descdpthm of application filed with Hearing Officer)
Appication fur. a Conditional Use Perml pursuont to Ordnance No. 20" requesting
approval of Use Permit No, 2008.035 to dow 1621 lydus to r»rrt m operating as an 18
bed adult sober FrAM factRy.
Reasons for Appeal
The home operates such that Om required fir&W to WW a. Conddional Use Permttcan
be made. Therefore, the COP of Newport Beach ampropedy dented the request, with
t=om.
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CITY OF NEWPORT BEACH
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Projbet Na PA: 2008 -108 Applieadon Na: Reas. Accom. 2009-05
Name of Appellant: Yellowstone Women's First Step House. Ina
Dr. Anna Marie Thames
Phone: (840) 678 -9000
Site Address: 1621 Indus, Newport Beach, California 82707
Date of Hearing Officer's, decision: April 14. 2008 (on application for Conditional Use
Permit)
Name of AppRoant Yellowstone Women's First Step House, Inc,
(Desuipdon of application filed with Bearing Of iew)
Application for a Reasonable Accommodation pursuant to Ordinance No. 2008-05
requesting that 1621 Indus be permitted an exemption from the occupancy reslrw" of
Section 20.91A.050 of the Newport Beach Municipal Cade which restricts occupancy to
two residents per bedroom plus one addillortal resident.
Ilteasons for Appeal
The City of Newport Beach denied the off Xcant`s Conditional Use Permit application,
therefore, the City"e decision regardnq -#j6 occupancy. exemption was rendered moot
Although the City now specifically ruled on this particular reasonable accommodation
[equest, Yellowstone hereby appeals because the 1621 Indus home operates such that
the required findings to grant the requested reasonable accommodation can be made.
7 April 27, 2009
Slgnatare of AppenanY Date
FOR OFFICE USE ONLY:
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CITY OF NEWPORT BEACH
APPI_ICATM TO APPEA t]ECISION OF THE HEARIFt =R:
Project No, PA: 2008 -106
Applleatfon No.: Rte. Acmm. 2009435
Name of Appellant: Yellowstone Women's First Step House, Inc.
Dr. Anna Marie Thames
Phone: (949) 678-91100
Site Address: 1621 Indus, Newport Beach, California 92707
Date of Hearing Officer's decision: April 14, 2009
Name of Applicant: Yellowstone Women's First Step House, Im
(Description of application filed with Hearing Officer)
Application for a Reasonable Accomn xistion purmant to Ordinance No. 2008 -05
requesting that 1621 Indus be treated as a Single Housekeeping Unit as deiced in
Section 2D.M030 of the Newport Beach Municipal Code.
Reasons for Appeal
The home operates such that the required findings to grant the requested reasonable
accommodation can be made. Therefore, the City of Newport Beach Improperly denied
the ►aqLml, wi>h prejudice.
Signature of Appellant
FOR OFFICE USE ONLY:
April 27, 2009
Date
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CITY OF NEWPORT BEACH
C APPLICATION TO APPEAL DECISION OF THE HFJIRIHG OFFiCfem
Project No. PA: 2006 -105 Application N0.: Use Permit No. 2t>W -M
Name of Appellant Yellowstone Women's F=irst SUP house, Inc.
Dr. Alma Matta Thames
Phone: (949) 67"000
Sibs Addtem: 1561 Indus, Newport Beadi, Califarraa 92707
Date of Hearing Officer's decision: April 14. 2009
Name of Applicant: Yellowstone Women's First Step House, Inc.
(Description of application filed with hearing Officer)
Application for a conditional use Permit pursuant to Ordinance No. 2006-05 requesting
approval of Use Permit No. 2008 -034 to allow 1561 Indus to continue operating as a 12
bed adult sober living facility.
Reason for Appeal
The home operates such that the required findings to grant a Conditional Use Permit can
be made. Therefore, the City of Newport Beach improperly denied the request, with
Prejudice.
Signature of Appellant
FOR OPPICE USE ONLY:
AprR 27.2009
Date
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APR -27 -2009 MM 08:36 AM DAVIS MAYMMtt ape FAX AU. WS Mi MM
CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA: 2006.105 Appilcallon No:: Peas. ACOan, 2WS-04
Name of Appellant Yellowstone Women's First Step House, Inc.
Dr. Arena Marle Thamas
Phone: (949) 678 -9000
Site Address: 1561 Indus, Newport Beach. California 92707
Date of Hearing Officer's decision: April 14, 2009 (on application for Conditional Use
Permit)
Nana of Applltant: Yellowstone Women's First Step House, Inc.
(Descriptiotl of application filed with Hearing Officer)
Application for a Reasonable Accommodation pursuant to Ordinance No. 2008-05
requesting that 1561 Indus be permitted an exemption from the occupancy restrictions of
Section 20.91A.050 of the Newport Beach Municipal Code which restricts occupancy to
two residents per bedroom plus one additional resident.
Reasons for Appeal
The City of Newport Beach denied the: applicartt's Conditional Use Permit application,
therefore, the City's decision regarding.the occupancy exemptions was rendered moot.
Although the City never specifically ruled on this particular reasonable accommodation
request, Yellowstone hereby appeals bscats;e the 1561 Indus home operates such that
the required findings to grant the requested reasonable accommodation can be made.
April 27, 2008
Signature of Appellant Date
FOR OFFICE USE ONLY:
Fee received Date
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CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA: 2008 -105
Application @b,: Reas. Accom. 20094)4
Name of Appellant Yellowstone Women's First Step House, Inc.
Dr. Anna Marie Thames
Phone: (949) 678 -9000
Site Address: 1561 Indus. Newport Bced7, Callfomia 92707
Date of Hearing Officers decision: April 14, 2009
tiarne of Applicant Yellowstone Women's First Step House, Inc,
(Description of application filed with Hearing Officer}
Application for a Reasonable Accommodation pursuant to Ordinance No. 2008405
requesting that 1561 Indus be treated as a Single Housekeeping Unit as defined in
Section 20.03.030 of the Newport Beach Municipal Code.
Reasons forAppeai
The home operates such that the required findn9s to grant the requested reasonable
accommodation can be made. Therefore, the City of Newport Beach improperly denied
the request, with preludKe.
April 27, 2009
Signature of Appellant Data
FOR OFFICE USE ONLY:
O
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APR -27 -2009 11M 0937 PA DAVIS RAYIiM ape PAX NU. 999 376 3875 P. 11
CITY OF `NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA: 2008 -107 Appvcation No.: Use Permit No. 2003 -M
Name of Appellant: Yellowstone Women's First Step House. Inc.
.. Dr. Anna Marie Thames
Phone. (949) 678.9000
Site Address: 1571 Pegasus, Newport Beach, California 92707
Data of Hearing Officer's decisions April 14, 2009
Nance of Applicant: Yetlowstone Women's first Step House, Inc.
(Description of application flied with Hearing Offla"
Application for a Conditional Use Permt pursuant to Ordinance No. 2008 -05 requesting
approval of Use Permit No. 2008-038 to allow 1571 Pegasus to continue operating as an
18 had adult sober living facility.
Reasons for Appeal
The tome operates such that the required finilmgs to grant a Conditional Use Parnell can
be made. Therefore, the City of Newport Beach improperly denied the request with
proAlco.
April V. 2009
signature of Appellant Date
FOR OFFICE USE ONLY' .
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Received by Fee received
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CITY OF NEWPORT BEACH
APPLICATION. TO APPEAL MOSION :OF. THE HEARING OFMI R
project No. VA: 2008107 Applicatom No.: Rees. AabM. 2009.06
Name of Appellant Yettowstone Women's First Step House. Ina
Dr. Anna MadeThames
Phone: (949) 878 -900D
Site Address: 1571 Pegasus, Newport Beach, CaMbMia 92707
Date of Hearing Officer's decision: April 14, 2009 (on application for Conditional Use
Permit)
Name of Applicant: Yellowstone Women's First Slap House, Inc.
(Description of application Tied with Hearing offiew)
Application for a Reasonable Accommodation punt to Ordinance No. 2008 -05
reWesf ng that 1571 Pegasus be permitted tan exemption from the ocalpancy
restrictions of Section 20.91A_050 of the Newport Beech Municipal Code which restricts
occupancy to two residents per bedroom plus one final resident.
Reasons for Appeal
The City of Newport Beath denied the applicant's Conditional Use Permit application,
therefore, the City'S decision regarding the occupancy exemption was rendered moot.
Although the City never specifically Wiled" oth .ttsw- paAiGt reasonable accommodation
request. Yellowstone hereby appeals because the 1571 Pegasus home operates such
that the required findings to grant the requested reasonable accommodation can be
made.
Signature of Appellant
-FOR OFFICE USE ONLY:
Racalved Fee received:
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APR -27 -2009 HON 08:37 M DAVIS RAYOM ape Mx Mi. ana srD MID
CITY OF NEWPORT BEACH
Project No. PA: 2008-107 Application No.: Reas. Aceom. 2009 -06
Name of Appellant: Yellowstone Women's First Step House. Inc.
Dr. Anna Maria Thames
Phone: (949) 675-MM
Site Address: 1571 Pegasus. Newport Beach, CoNfomis 92707
Date of Hearing Officer's decision; April 14, 2009
Name of Applicant: Yellowstone Women's First Step House, Inc.
(Description of application filed with Hearing OfNco
Application for a Reasonable Accommodation pt>rsuart to Ordinance No. 2008-05
requesting that 1571 Pegasus be treated as a Single Housekeeping Unit as defined in
Section 20.03.030 of the Newport Beach MurWpal Code.
Reasons for Appeal
The tome operates such that the required findings to grant the requested reasonable
accommodation can be made. Therefore, the City of Newport Beach Improperly dented
the request, with prejudice.
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.l.K 6 AprO 27, 2009
Signature of Appellant Date
FOR OFFICE USE ONLY:
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CITY OF NEWPORT BEACH
APPLMMON1 TO AREAL DIMIS AlOF THE HtPARff+lG OEMIR
Project No. PA: 2008 -108 , Apptteation No.: Use Permit No. 2008.037
Name of Appellant Yellowstone Women's First Step House, Inc.
Dr. Anna Marie Thames
Phone: (949) 67 8-9000
Site Address: 20172 Redlands Drive, Newport Beach. California 82707
Deft of hearing Officer's decision: April 14,2W9
Name of Applicant Yelbwstone women's Fist Step Rouse, Ina
(Description of application filed with Nearing Officer)
Application for a Conditional Use Permit pursuant to Ordinance No. 2008-05 requesting
approval of Use Permit No. 200A -037 to allow 20172 Redlands to continUe operating as
a 17 bed adult sober riving facifily,
Reasons for Appeal
The home operates such that the required findings to grant a CorxftW W Use Permit can
be made. Therefore, the City ot. Newport Beach improperly dented the request, with
prejudice.
%_____ �i April 27, 2009
Signature off Appel llant Date
FOR OFFICE USE ONLY:
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AP11-27 -2009 IM 08:37 All DAVIS HAYMM arc rAx M. sqa jro Zarb
CITY OF NEWPORT BEACH
APPLICAMON TO APPEAL DECMN OF THE HEAR NQ OFFICER
Pr*ct No. PA: 2MB -108 Application No.-, Reas. Accom. 200947
Name of Appellant: Yellowstone Wornen's Fhst Step House, Inc
Dr. Anna Marie Thames
Phone: (949) 678 -9000
Site Addmes: 201 i2 Redlands Drive, Newport Beach, Cafcrorria 92707
Date of Hearing Officer's decision: April 14, 2008 (on application for Conditional Use
Permit)
Name of Applicant: Yellowstone Women's First Step House, Inc.
(Description of application filed with Homing Officer)
Application for a Reasonable Accommodation pursuant to Ordinance No. 2008.05
requesting that 20172 Redlands be pemlitted an exemption from the occupancy
veWotions of Section 20.91AA50 of the Newport Beach Municipal Code which restricts
occupancy to two residents per bedroom plus one additional resident.
Reasons for Appeal
The City of Newport Reach denied the applicants Conditional Use Permit application,
therefore, the Gays decision regarding:the-ocagwncy exemption was rendered moot
Although the City new specifically ruled on this particular reasonable accommodation
request, YeDowsmne hereby appeals . because the 20172 Redlands home operates such
that the required findings to grant the requested reasonable accommodation can be
made.
April 27, 2009
Signature of Appellant Date
FOR OFFiCIE USE ONLY—
Received .
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CITY OF NEWPORT BEACH
APPLICATION 70 APPEAL DECISM OF THE HEARING QFFICER
Pn4ed No. PA: 2008-108 - Application No.: Rees. Aocom. 2DW-07
Name of Appellant: Yellowstone Women's First Step House, krc
Or. Anna Marie Thames
Phone: (949) 678.9000
Site Address: 20172 Redlands Drive. Newport Beach, Caftmia 92707
Date of Waring Officer's decision: Apnl 14, 2009
Name of Applicant: YefloW8tone Worren's First Step House, Inc.
(Description of application filed with Hearing Officer)
Applkittion for a Reasonable Accommodation pursuant to Ordinance No. 2008-05
requesting that 20172 Redlands be tasted as a Single Housekeeping Unit as defined in
Section 20.03.030 of the Newport Beach Municipal Code.
Reasons for Appeal
The home operates such that the required findings to grant the. requested reasonable
accommodation can be made. Therefore, the City of Newport Beach improperly denied
the request, with prejudice.
April 27, 2009
Signature of Appellant Date
FOR OFME USE ONLY:
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STEVEN G. POLIN, ESQ.
Attorney At Law
SENT VIA ELECTRONIC MEAN
David Hunt, Esquire
City Attorney
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Re:
Dear Mr. Hunt,
Pnpx"RE CEMD AFTER �E-W'9 A
-i ) i;,a V
November 27, 2009
3034 TENwSON ST. N.W.
WASHINGTON, D.C. 20015
'DI (202) 331 -5848
FAx (202) 537 -2986
SPOLINZ&ARTHLINK. NEr
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 entailed 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:
• Yellowstone is requesting a reasonable 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) inthe same mannerthose code provisions are applied to either "single
N
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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 entailed 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:
• Yellowstone is requesting a reasonable 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) inthe 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 of the 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
2AIso, 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, afJ'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 27.2009
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.e., 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." 102 F.3d 781, 794-95 (6th Cit. 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 refuses
to reasonably accommodate these small group living facilities, it denies disabled persons an equal
opportunity to live in the community of their choice. "); Sharpvisions, Inc, v. Borough of Plum, 475
F. Supp. 2d 514, 526 (WD. 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 ofrecovery 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 fund ... to support group homes for
recovering substance abusers] J" 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) ( "[Tlhe 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. ofAdjustment ofTwp. of
Scotch Plains, 284 F.3d 442, 460 (3d Cit. 2002) ( "(11f 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 Cit. 1999)
(explaining that the relevant inquiry is whether "the non - complying features of the proposed
residence are'necessary' in light ofthe disabilities of proposed residents "); Oconomowoc Residential
Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 784 (7th Cit. 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 of twelve 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 of the Yellowstone program 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 ofJefferson', 234 173d 192, 206 (5th Cit. 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 (11th Cir. Fla.
2008)
°The Groome Court also held: `9n 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.
iii / / / / / /�r�►
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 1096, 1105 (3d Cir. 1996); Smith & Lee Assocs., Inc. v City of Taylor, Mich., 13
F.3d 920, 931 (6th Cir. 1993).
November 17, 2009
Dave Kiff, City Manager
3300 Newport Blvd
Newport Beach, Ca. 92658
RE: Yellowstone Women's Group Homes
West Santa Ana Heights
Sir,
I am writing in opposition of the appeals by the above business for Use Permits or
Reasonable Accommodation at the sober living homes in my neighborhood.
Since the City denied the original requests the property at 1571 Pegasus appears to have
turned into a co -ed boarding house. They have abandoned the stated purpose for the
property, a women's sober living facility. Based on this fact alone, the application no
longer applies and the appeal should be denied.
On 9 -15 -2009 I sent an email documenting the activities at 1571 Pegasus to John
Kappler. I am including those observations with this letter. These observations clearly
show multiple contradictions in statements made by Yellowstone's attorney and indicate
the property is not a "women's home ".
In additions to the above observations, I request the City review NBPD Dr# 09 -11320
which details an incident that occurred on I 1 -16 -2009 at 2216 hours at 1671 Indus St.
On that date I observed ABLE, the police helicopter orbiting in the neighborhood. Since
this is in the flight path of O.C. Airport I knew this had to be a serious incident. I have
since determined that several units, a police supervisor, and the helicopter had been
called to the location for a disturbance. This incident resulted in the arrest of a female, I
suspect is a resident, for felony battery. I don't know the details but am sure the City
Attorney can ascertain them.
Again I urge the City to deny or dismiss the applications and appeals for each of the
Yellowstone properties,
Michael McDonough
1562 Pegasus Street
John, this is a follow up to our conversation on 9 -14 -2009 related to the current
occupancy and deviation from the stated use of the Yellowstone Women Recovery Group
home at 1571 Pegasus St.
At the prior hearings for a use permit, legal counsel for Yellowstone represented certain
rules that the property had in place. To my recollection those rules included the assertion
that the group homes did not co- mingle, males and female clients did not visit or reside
together and that the residents did not have or park vehicles in the neighborhood. Since
the City denied the Permit I have observed Yellowstone has abandon even the pretence of
abiding by these rules.
After the last hearing counsel for Yellowstone implied that we, the residents opposing the
group homes, were confused, mistaken, or lying about our observation. Based on this I
decided to document my observations related to the location. The following is a brief
chronology of the location from 9 -14 -2009 / 1340 hours through 9 -15 -2009 / 1010 hours.
These observations are typical of the daily activities at the location and are the norm not
the exception. As I indicated in our conversation, the residents of 1571 Pegasus Street
often park away from the property in an effort to appear to conform to the statements of
Yellowstone counsel. This will be apparent in the following notations.
9 -14 -2009, 1340 hours. Blue Honda Civic, Mass license, 38CZ98 (expired Aug 09)
parked in front of 1602 Pegasus Street. Female driver exited vehicle and entered 1571
Pegasus Street. Parking was available directly in front of 1571 and 1572 Pegasus. It was
noted the female entered without knocking indicating she is a possible resident. I have
observed this female entering and leaving this location on a regular basis. She often
parks along the street away from 1571 even when parking is available at the location.
9-14-2009,2115 hours. Observed a gold Toyota van, Ca license, 6DQR198, parked in
front of 1571 Pegasus Street. This vehicle is parked at the location daily. A silver V W,
Ca license, 5JKC601, parked in driveway 1571 Pegasus Street. This vehicle is often
observed at location.
9 -14 -2009, 2115 hours. I observed a male walking w/b Pegasus and enter the residence
without knocking, indicating he is a possible resident.
9 -15 -2009, 0620 hours. The blue Honda Civic (as indicated above with Mass plates) now
has Ca license, 6HZZ714, was parked in front of 1591 Pegasus Street. The VW and
Toyota van were still parked as observed at 2115 hours. I also observed a gold
Chevrolet, Ca license, 5TZP407, parked in front of 1602 Pegasus Street. This Chevrolet
is parked in the area daily and I have observed repairs being made on this vehicle in the
driveway at 1571 Pegasus Street in the past. All four of the above describe vehicles had
dew on the windows indicating they had been parked at the location for several hours.
In response to only females allow at the residence I made the following observations of
individuals leaving the location in the morning.
9 -15 -2009, 0650 hours. Female exited the residence and drove away in the VW from the
driveway.
0735 hours. Male exited the residence, met 2 other males walking w/b and
left area on foot.
0840 hours. Four subjects exited the residence, 2 males and 2 females, and
left in the Toyota van.
0845 hours. Male exited the residence went to the mail box, inventoried the
contents, remove some letters and replaced the others. He then reentered the residence.
1005 hours. Male walked to the location from the east, entered without
knocking, remained approximately 5 minutes then walked e/b and up the driveway at
20172 Redlands. This location is another Yellowstone property reported to be male only.
1010 hours. Female driving a silver Toyota, Ca. license, 4UUC762, pulled
into drive way at 1571 Pegasus Street. A male exited the vehicle and walked to 20172
Redlands. The female spoke w/ a male at 1571 Pegasus for a few minutes then drove to
20172 Redlands, pulled into the driveway, exited and walk up to the front door of the
residence. I could not see if she contacted anyone or entered the location.
As indicated by the above, the counsel for Yellowstone is possibly confused, mistaken, or
is being lied to by is clients. The representations made at the prior hearing, if they were
ever enforced, are no longer applicable at this time.
Yellowstone has never been issued a permit to operate by any agency, has misrepresented
the current use of the property, which now appears to being operated as a boarding house,
and is not or can not operate within the rules governing recovery facilities.
I request the City investigate possible violations and enforce any applicable laws
regarding this property.
1592 PEGASUS STREET
NEWPORT BEACH, CA 92660
November 16, 2009
Dave ICA City Manager
Newport Beach Planning Department
3300 Newport Blvd.
Newport Beach, CA 92658 -8915
Re: Yellowstone Women's House
Appeal from Denial of Use Permit No. 2008 -036 (1571) and related properties
Appeal from Denial of Reasonable Accommodation No. 2009 -06 (1571) and related properties
Dear Mt Kiff
My wife and I own the property at 1592 Pegasus Street. I write to oppose the appeal and continuing
application of Yellowstone Women's First Step House, specifically with respect to the use of the property
located at 1571 Pegasus Street and, more generally, as relates to the other residential properties operated as
commercial establishments within the "Pegasus Tract"
Much has been written on both sides about the pros and cons of the applicants' activities. Unfortunately,
much of the supporting material has been designed to give a false impression of the activities that occur at the
site
Specifically, Resolution No. HO- 2009 -005 identified as facts that "Yellowstone Women's First Step House,
Inc, submitted Group Residential Use Permit applications for four sober living facilities located at 1561 Indus
Street, 1621 Indus Street, 1571 Pegasus Street and 20172 Redlands Drive," and, furthermore that "Yellowstone
Women's First Step House, Inc., located at 1571 Pegasus Street ("Use Location's in Newport Beach, California,
is an existing group residential care facility operating an unlicensed "sober living" facility for 18 worsen in an
existing single- family dwe0ing"
I would like to introduce you to a few of the women living at the facility...
Based on the above, taken between the time that the Corporatiods application was denied and appeal
taken to the City Council, I do not believe that the Appellant can claim that the use for which the application
-2— November 16, 2009
was initially submitted to the City represent a valid statement of the conditions upon which the boarding house
is now operated.
While I would prefer to see the appeal denied on its merits, I believe the City should deny rather than
merely dismiss the appeal on the grounds that by materially altering the use of the facility, the Corporation has
evidenced its intention to abandon the use contemplated under its applications and upon which its appeal is
based. Moreover, by using the time allowed during the pendency of the appeals to alter, if not expand, the use
under which it operated, the Corporation has abused a process intended to provide for legitimate appeals for
which there is in support of the appellant a basis in fact or law. The Corporation here appears only intent upon
prolonging a process for which it has neither in support of its claims.
Sincerely,
Stephen E. Abraham
1592 PEGASUS STREET • NEWPORT BEACH- 92660
PHONE: (909) 878 -8608• E -MAIL: STEPHENQABRAHAM- LAWOFFICES.COM
Authonied to Publish Adaertisements of all kinds including public notices by
Decree of the Superior Court of Orange County. California. Numhcr A -6214.
September 29. 1961, and A -248:1 June 11. 1963.
PROOF OF PUBLICATION
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
I am a Citizen of the United States and a
resident of the County aforesaid-, I am
over the age of eighteen years, and not a
party to or interested in the below entitled
matter. I am a principal clerk of the
NEWPORT BEACH - COSTA MESA
DAILY PILOT, a newspaper of general
circulation, printed and published in the
City of Costa Mesa. County of Orange,
State of California, and that attached
Notice is a true and complete copy as
was printed and published on the
following dates:
December 26, 2009
I declare, under penalty of perjury, that
the foregoing is true and correct.
Executed on December 29, 2009 at
Costa Mesa, California.
Signatu
RECEIVED
1010 JAN -4 AM039
+EGQOF
CRY Ol N- ltiPORT BE"
,TICE IS HER/&Y GIVEN Ira: cis Tuesday, J.vcwy 12, 7010, of
IAE. a public hearing will be conducted in the City Council Chambers
ding A) at 3300 Newport Boulevard. Newpwl Beach The City Council
e City of Newport Beach will consider the following application
VaNBal Real I , The application consists at a modification permit
low planter walls and a water feature to exceed The 3 toot height
in the Iron) yard setback in association with the construction of a
three story single family dwelling.
f City of Newport Beach determined that the proposed project may
a significant effect on the environment On Land Use, Aesthetics.
Biological Resources. The City determined that an EIR would be
rod to more fully evaluate potential adverse environmental impacts
may result from development 01 the project. All other environmental
Is were defermmed to be less than significant (with mitigation) Of
no impact and were addressed in the Initial Study prepared tar the
ct. As a result, the DEIR has been prepared in accordance with the
pwa Environmental Quality Act of 1970 (CEQA). as amended (Public
urces Code Section 11000 of sect). and the Slate CEQA Guidelines
mplementa' /abon of CEQA (Cahlorma Code of Regulations. Title 16.
on 15000 et sec.). This DEIR also com! /plies with the City 01 Newport
h's pocet ures 1w implementation of CEQA.
interested parties may appear and present testimony in regard to
application. 11 you challenge this project in cowl, you may be limited
using only those issues you w someone else raised at the public
rig (described m this notice) or in written correspondence delivered
a City, at, or prior to, the public hearing. The agenda, staff spoil.
documents may be reviewed at the Planning Department (Budding
Of Flow), 3300 Newport Boulevard. Newport Beach. California, 92663
questions regarding details of the project please contact lames
M File No., PA2007 133 Adbley No. MD2007 OBOI
R l Oaaaral Plait SFD (Singh Family Detached)
INa: 2333 Pacific Drive AhRmea: Kim and Carolyne MegOnigal
Laden, 1. Brown.
Published Newport Beach.Cosla Mesa Daily Pilot December
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that on Tuesday, January 12, 2010, at 7:OOPM, a public hearing
will be conducted in the City Council Chambers (Building A) at 3300 Newport Boulevard,
Newport Beach. The City Council of the City of Newport Beach will consider the following
application:
Megonigal Residence - The application consists of a modification permit to allow planter walls
and a water feature to exceed the 3 -foot height limit in the front yard setback in association
with the construction of a new, three -story single - family dwelling.
The City of Newport Beach determined that the proposed project may have a significant effect
on the environment on Land Use, Aesthetics, and Biological Resources. The City determined
that an EIR would be required to more fully evaluate potential adverse environmental impacts
that may result from development of the project. All other environmental effects were
determined to be less than significant (with mitigation) or have no impact and were addressed
in the Initial Study prepared for the project. As a result, the DEIR has been prepared in
accordance with the California Environmental Quality Act of 1970 (CEQA), as amended
(Public Resources Code Section 21000 et seq.), and the State CEQA Guidelines for
Implementation of CEQA (California Code of Regulations, Title 14, Section 15000 et seq.).
This DEIR also complies with the City of Newport Beach's procedures for implementation of
CEQA.
All interested parties may appear and present testimony in regard to this application. If you
challenge this project in court, you may be limited to raising only those issues you or someone
else raised at the public hearing (described in this notice) or in written correspondence delivered
to the City, at, or prior to, the public hearing. The agenda, staff report, and documents may be
reviewed at the Planning Department (Building C, 2nd Floor), 3300 Newport Boulevard, Newport
Beach, California, 92663.
For questions regarding details of the project please contact James Campbell, 949 -644 -3210.
Project File No.: PA2007 -133
Zone: R -1
Location: 2333 Pacific Drive
Activity No.: MD2007 -080
General Plan: SFD (Single Family
Detached)
Applicant: Kim and Carolyne Megonigal
0Q�Q.
Leilani I. Brown, City Clerk
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SUSAN W CASE, INC.
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FILE# 73898
2333 PACIFIC DRIVE
CORONA DEL MAR CA
052 011 01
300' OWNERS
MAY 312007
052 011 01
Carolyn Pautsch
2204 Waterfront Dr
Corona Del Mar CA 92625
052 011 05
Fabricant
2315 Pacific Dr
Corona Del Mar CA 92625
052 011 22
Gregory Charles Betzler
PO Box 858
Sierra Madre CA 91025
917 Gleunetv-e .Street, .Suite 7 • Lagurna Beach, CA 92651
PIIO,1'F (949) 494 -6105 • I -AX (949) 494 -7418
052 011 25
MARSH DEVELOPMENT COMPANY
400 Westchester PI
Fullerton CA 92835
052 012 07
James Flaherty
2307 Bayside Dr
Corona Del Mar CA 92625
052 012 10
Michael Sweig
2323 Bayside Dr
Corona Del Mar CA 92625
052 013 08
Richard Joseph Battaglia
3366 Via Lido
Newport Beach CA 92663
052 013 25
319 CARNATION AVENUE TRUST
PO Box 8302
Newport Beach CA 92658
052 011 03
Barbara Dawkins
2329 Pacific Dr
Corona Del Mar CA 92625
052 011 07
Michael A Bayer
2235 Pacific Dr
Corona Del Mar CA 92625
052 011 23
B & J Bertea
1300 Dove St
Newport Beach CA 92660
052 012 05
2233 Bayside Drive
2233 Bayside Dr
Corona Del Mar CA 92625
052 012 08
Troy & Pamela Reyna
2315 Bayside Dr
Corona Del Mar CA 92625
052 013 06
Julie Pitkanen
301 Carnation Ave
Corona Del Mar CA 92625
052 013 17
Carolyn Martin
615 S Pasadena Ave
Pasadena CA 91105
052 013 26
R Joseph Collins
301 Carnation Ave
Corona Del Mar CA 92625
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052 011 04
Anthony & Joni Damato Jr.
25212 Derbyhill Dr
Laguna Hills CA 92653
052 011 08
Paul Moses
2231 Pacific Dr
Corona Del Mar CA 92625
052 011 24
MARSH DEV CO INC
400 Westchester PI
Fullerton CA 92835
052 012 06
Laurie Ann Burg Minerbi
2301 Bayside Dr
Corona Del Mar CA 92625
052 012 09
Whitaker
2319 Bayside Dr
Corona Del Mar CA 92625
052 013 07
Linda Martin
239 Carnation Ave
Corona Del Mar CA 92625
052 013 23
Richard Frank
234 E Colorado Blvd #500
Pasadena CA 91101
052 013 36
Gart & Ronda Sutton
9 Alessandria
Newport Coast CA 92657
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052 021 01
Ross Billings
314 Carnation Ave
Corona Del Mar CA 92625
459 10206
SHEPHERDSON PROPS LLC
PO Box 2447
Newport Beach CA 92659
459 102 09
Elizabeth Delamater
2312 Pacific Or
Corona Del Mar CA 92625
459 102 12
Melody Orr
2324 Pacific Or
Corona Del Mar CA 92625
459 10301
CITY OF NEWPORT BEACH
PO Box 1768
Newport Beach CA 92658
459 11701
CITY OF NEWPORT BEACH
PO Box 1768
Newport Beach CA 92658
932 660 16
Jeffrey & Marilyn Beck
303 Carnation Ave
Corona Del Mar CA 92625
932 660 19
Sylvia Burnett
309 Carnation Ave
Corona Del Mar CA 92625
932 660 26
Linda Hancock
315 Carnation Ave #3
Corona Del Mar CA 92625
932 870 18
Ram Willner
302 Carnation Ave
Corona Del Mar CA 92625
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OP uae umpe4 el ir mildev
052 021 20
David Taborelli
308 1 /ZQarnation Ave
Corona Del Mar CA 92625
459 10207
Michael Mann
2304 Pacific Or
Corona Del Mar CA 92625
459 10210
Annette Whitehead
2316 Pacific Or
Corona Del Mar CA 92625
459 102 13
James Neff
3 Longview Rd
Westport CT 06880
459 11422
Edward Foster
2501 1 st Ave
Corona Del Mar CA 92625
932 660 01
Richard Blatterman
115 Bayside PI
Corona Del Mar CA 92625
932 660 17
Harley Broviak II
307 Carnation Ave
Corona Del Mar CA 92625
932 660 24
Thomas Phillips
1 Massachusetts Ave NW
Washington DC 20001
932 660 27
Ginsberg
317 Carnation Ave
Corona Del Mar CA 92625
932 870 19
Shirley Marie Roeder
300 Carnation Ave
Corona Del Mar CA 92625
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sp sues
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islad R sall3el sauanbpj
052 021 21
Carnation Village Association
2744 E Pacific Coast Hwy #5
Corona del Mar CA 92625
459 102 08
William & Barbara Yingling III
2308 Pacific Or
Corona Del Mar CA 92625
459 10211
John Davison
2320 Pacific Or
Corona Del Mar CA 92625
459 10214
Janet Bell
411 Begonia Ave
Corona Del Mar CA 92625
459 11424
Edward Foster
2501 1st Ave
Corona Del Mar CA 92625
932 660 02
Terry Lee Bellardi
117 N Bayside Or #117
Newport Beach CA 92660
932 660 18
Waseem Ibrahim
6909 Royal Hunt Ridge Or
Riverside CA 92506
932 660 25
Thomas Phillips
626 Chain Bridge Rd
Mclean VA 22101
932 870 17
Nancy Allari
304 Carnation Ave
Corona Del Mar CA 92625
932 870 20
Jerry Sebag
7677 Center Ave #400
Huntington Beach CA 92647
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932 87021
Bob Portale
2502 Seaview Ave
Corona Del Mar CA 92625
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932 870 22
Theresa Petrole
2504 Seaview Ave
Corona Del Mar CA 92625
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Southern California Gas Company
Eric Casares
1919 S State College Blvd.
Anaheim, CA 92806 -6114
Patricia Bell
411 Begonia Avenue
Corona Del Mar, CA 92625
Richard 8 Eileen Lloyd
509 Begonia Avenue
Corona Del Mar, CA 92625
Ron Yeo
500 Jasmine Avenue
Corona Del Mar, CA 92625
Rebecca Stubblefield
617'/: Begonia Avenue
Corona Del Mar, CA 92625
Dan Spletter
430 '/, Begonia Avenue
Corona Del Mar, CA 92625
California Department of Transportation
Christopher Herre
3337Michaelson Drive, #380
Irvine, CA 9292612 -8894
Clayton Gorne
426 Begonia Avenue
Corona Del Mar, CA 92625
Mark D. Simon
2420 First Avenue
Corona del Mar, CA 92625
Dr. Robert 8 Gail Fabricant
605 Begonia Avenue
Corona Del Mar, CA 92625
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Kenneth Jaggers
516 Begonia Avenue
Corona Del Mar, CA 92625
Glenn A. 8 Lucy Souers
445 Begonia Avenue
Corona Del Mar, CA 92625
Marilyn L. Beck
300 Carnation Avenue
Corona Del Mar. CA 92625
Erwin Fox
519 Carnation Avenue
Corona Del Mar, CA 92625
Friends of Begonia Park
2420 First Avenue
Corona del Mar. CA 92625
Julie Sherwin
440 Begonia Avenue
Corona Del Mar, CA 92625
Yvonne and Damien Jordan
2360 Bayside Drive
Corona Del Mar. CA 92625
Gary and Kathleen Kearns
423 Begonia Avenue
Corona Del Mar, CA 92625
James Bissill and Kelly Neff
401 Begonia Avenue
Corona Del Mar, CA 92625
Barbara Dawkins
2329 Pacific Drive
Corona Del Mar, CA 92625
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State Water Resources Control Board
Laura Warddrip
P O Box 100
Sacramento. CA 95812 -0100
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NOTICE OF PUBLIC NEARING
NOTICE IS HEREBY GIVEN that on Tuesday, January 12, 2010, at 7:00 PM, a public hearing will be conducted in the
City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach. The City Council of the City of Newport
Beach will consider the following application:
Megonigal Residence - The application consists of a modification permit to allow planter walls and a water feature to
exceed the Moot height limit in the front yard setback in association with the construction of a new, three-story single -
family dwelling.
The City of Newport Beach determined that the proposed project may have a significant effect on the environment on
Land Use, Aesthetics, and Biological Resources. The City determined that an EIR would be required to more fully
evaluate potential adverse environmental impacts that may result from development of the project. All other
environmental effects were determined to be less than significant (with mitigation) or have no impact and were addressed
in the Initial Study prepared for the project. As a result, the DEIR has been prepared in accordance with the California
Environmental Quality Act of 1970 (CEQA), as amended (Public Resources Code Section 21000 et seq.), and the State
CEQA Guidelines for Implementation of CEQA (California Code of Regulations, Title 14, Section 15000 et seq.). This
DEIR also complies with the City of Newport Beach's procedures for implementation of CEQA.
All interested parties may appear and present testimony in regard to this application. If you challenge this project in court,
you may be limited to raising only those issues you or someone else raised at the public hearing (described in this notice) or
in written correspondence delivered to the City, at, or prior to, the public hearing. The agenda, staff report, and documents
may be reviewed at the Planning Department (Building C, 2vd Floor), 3300 Newport Boulevard, Newport Beach, California,
92663. For questions regarding details of the project please contact James Campbell, 949 - 644 -3210.
Project File No.: PA2007 -133 - Activity No.: MD2007 -080 - Zone: R -1 - General Plan: SFD (Single Family
Detached) - Location: 2333 Pacific Drive - Applicant: Kim and Carolyn egonigal
_ .V
Leilani L Brown, City Cl irk
City of Newport Beach