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Home My WebLink About07 - Yellowstone Women's First Step House, Inc.CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. I January 26, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Janet Johnson Brown, Associate Planner 949 -644 -3236, or jbrownCo)newportbeachca.gov Office of the City Attorney David R. Hunt, City Attorney 949 -644 -3131 or dhunt(d)newportbeachca.gov SUBJECT: Yellowstone Women's First Step House, Inc. Resolutions Sustaining Hearing Officer's Denial With Prejudice for: • 1561 Indus Street: Use Permit No. 2008 -034 and Reasonable Accommodation No. 2009 -004 (PA2008 -105) 1621 Indus Street: Use Permit No. 2008 -035 and Reasonable Accommodation No. 2009 -005 (PA2008 -106) • 1571 Pegasus Street: Use Permit No. 2008 -036 and Reasonable Accommodation No. 2009 -006 (PA2008407) • 20172 Redland Drive: Use Permit No. 2008 -037 and Reasonable Accommodation No. 2009 -007 (PA2008 -108) ISSUE: Should the City Council adopt the attached resolutions, denying the appeals submitted. by Yellowstone Women's First Step House, Inc. (Yellowstone) for each of its four Newport Beach facilities? RECOMMENDATION: Staff recommends that the City Council adopt the attached resolutions (Attachments 1, 2, 3 and 4) denying the appeals, and upholding and affirming the Hearing Officer's decisions to deny with prejudice applications for use pennits and reasonable accommodations for each of Yellowstone's four facilities. DISCUSSION: At the January 11, 2010, City Council meeting, the City Council conducted a public hearing to consider the appeals of the Hearing Officer's decision to deny with prejudice the applications for use permits and reasonable accommodations submitted by Yellowstone for each of its four Newport Beach facilities. The City Council also considered an amended request for reasonable accommodation as submitted by the applicantlappellant, Yellowstone. Yellowstone Women's First Step House, Inc. Use Permits and Reasonable Accommodations January 26, 2010 Page 2 The City Council found that substantial evidence exists in the administrative record to support the Hearing Officer's decisions, and made a motion to deny the appeals, sustaining and affirming the Hearing Officer's decisions. The City Council directed staff to prepare resolutions reflecting the City Council's decisions, to be presented at the next Council meeting for review and adoption. Those resolutions are attached to this report as Attachments 1, 2, 3, and 4. 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: Staff requests that the City Council review the attached resolutions, and decide whether to adopt the resolutions with the content and form presented. If the City Council wants specific changes to any or all of the resolutions, staff requests that the City Council provide direction on such changes, and adopt the resolutions subject to the changes directed. Prepared by: Submitted by: David R. Hunt, City Attorney Attachment 1: 1561 Indus Street - Resolution Sustaining Hearing Officer's Denial With Prejudice Use Permit No. 2008 -034 & Reasonable Accommodation No. 2009- 004 Attachment 2: 1621 Indus Street - Resolution Sustaining Hearing Officer's Denial With Prejudice Use Permit No. 2008 -035 & Reasonable Accommodation No. 2009- 005 Attachment 3: 1571 Pegasus Street - Resolution Sustaining Hearing Officer's Denial With Prejudice Use Permit No. 2008 -036 and Reasonable Accommodation No. 2009- 006 Attachment 4: 20172 Redlands Drive - Resolution Sustaining Hearing Officer's Denial With Prejudice Use Permit No. 2008 -037 and Reasonable Accommodation No. 2009- 007 ATTACHMENT 1 Yellowstone Women's First Step House, Inc. Resolution Sustaining Hearing Officer's Denial with Prejudice as to 1561 Indus Street: Use Permit No. 2008 -034 and Reasonable Accommodation No. 2009 -004 (PA2008 -105) RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING APPEALS, AND SUSTAINING AND AFFIRMING THE DECISIONS OF THE HEARING OFFICER TO DENY WITH PREJUDICE USE PERMIT NO. 2008 -034 AND REASONABLE ACCOMMODATION NO. 2009- 004 FOR AN EXISTING RESIDENTIAL CARE FACILITY LOCATED AT 1561 INDUS STREET, NEWPORT BEACH, CALIFORNIA (PA 2008 -105) WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings, and the ordinance amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.91A to the NBMC, which permits persons whose use of property was made nonconforming by the adoption of the ordinance to seek issuance of a use permit to continue the nonconforming use; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC, which sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, at the time Ordinance No. 2008 -05 was adopted, Yellowstone Women's First Step House, Inc. (Yellowstone) operated four facilities without having obtained use permits from the County of Orange at the time of establishment of the use located in the Santa Ana Heights Specific Plan District and zoned Residential - Single Family (RSF), which pursuant to Ordinance No. 2008 -05 would be classified as "Residential Care Facility, General Unlicensed;' and WHEREAS, applications were filed by Yellowstone with respect to property located at 1561 Indus Street, and legally described as Lot 14, Tract 4307 in the City of Newport Beach, County of Orange, State of California (APN 119 - 361 -08), as per map recorded in Book 153, Pages 18 -20 of Miscellaneous Maps; and WHEREAS, Yellowstone applied for a use permit to allow the continued operations of the facility, and applied for reasonable accommodation requesting: (1) that the residents of the facility be treated as a single housekeeping unit as defined in Section 20.03.030 of the NBMC; (2) an exemption from the occupancy restrictions of NBMC Section 20.91A.050 which requires that use permits granted to residential facilities restrict occupancy to no more than 2 residents per bedroom plus one additional resident; and (3) an exemption from the City's requirement that all use permit applicants pay an application filing fee; and WHEREAS, a public hearing was held on February 20, 2009 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code, and evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was continued to March 12, 2009, where the public hearing was reopened on the matter of the use permit application to receive additional evidence, and continued on the matter of the reasonable accommodation requests, to take testimony from staff, the applicant, and the public; and WHEREAS, both hearings were presided over by Thomas W. Allen, Hearing Officer for the City of Newport Beach; and WHEREAS, the Hearing Officer determined the Yellowstone facility located at 1561 Indus Street was not a legally - established use when the use was established within the Orange County unincorporated territory know as West Santa Ana Heights, and was not qualified to seek a use permit to continue the use in its current location; and WHEREAS, the Hearing Officer determined not all of the five findings required pursuant to Section 20.98.025 (B) of the NBMC could be made to grant Reasonable Accommodation No. 2009 -004 for the request to treat residents of the facility located at 1561 Indus Street as a single housekeeping unit, as defined in Section 20.03.030 of the NBMC; and WHEREAS, the Hearing Officer determined the request for an exemption from the occupancy restrictions of NBMC Section 20.91A.050 was not necessary because a use permit to allow the continued operation of the facility was denied; and .WHEREAS,. the Hearing Officer adopted Resolution No. HO -2009 -003, denying Use Permit No. 2008 -034 with prejudice, and Resolution No. HO- 2009 -007, denying Reasonable Accommodation No. 2009 -004 with prejudice; and WHEREAS, Yellowstone filed appeals of the Hearing Officer's decisions requesting that the City Council consider: (1) the denial with prejudice of Use Permit No. 2008 -034 to allow the continued operations of the facility; (2) the denial with prejudice of Reasonable Accommodation No. 2009 -004 to treat the residents of the facility as a single housekeeping unit; and (3) the request for exemption from the occupancy restrictions of NBMC Section 20.91A.050; and WHEREAS, pursuant to Section 20.98.025 A of the NBMC, the standard of review on appeal shall not be de novo and the City Council shall determine whether the findings and determinations made by the Hearing Officer were supported by substantial evidencein the administrative record and presented during the evidentiary hearing. The City Council may sustain, reverse or modify the decisions of the Hearing Officer; and WHEREAS, a.public hearing on the appeals of the Hearing Officer's decisions to deny with prejudice Use Permit No. 2008 -034 and Reasonable Accommodation No. 2009 -004 was scheduled on September 22, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place, and purpose of the aforesaid meeting was given. The September 22, 2009 hearing was continued to November 24, 2009, and this hearing was continued to December 2, 2009. The December 2, 2009 hearing was continued to January 11, 2010; and 2 WHEREAS, at the continued public hearing on January 11, 2010, the City Council considered evidence in the administrative record, including the analysis in the staff report, the February 20, 2009 and March 12, 2009 public hearing transcripts, and documents submitted by the public; and WHEREAS, following testimony from staff, the appellant, and the public, the City Council determined that substantial evidence exists in the administrative record to support the Hearing Officers decision to deny with prejudice Use Permit No. 2008 -034 and Reasonable Accommodation No. 2009 -004, and to support the Hearing Officer's determination that the request for an exemption from the occupancy restrictions of NBMC Section 20.91A.050 was not necessary, thereby denying the appeals, and sustaining and affirming the Hearing Officer's decisions; and WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(b)(3) (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. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. NOW THEREFORE, BE IT RESOLVED: Section 1. The City Council of the City of Newport Beach, having reviewed the administrative record and having received and considered argument at its hearing of the matter finds the above recitals to be true and correct and adopts them as findings in this matter. Section 2. The City Council of the City of Newport Beach hereby denies the appeals, and sustains and affirms the decisions of the Hearing Officer to deny with prejudice Use Permit No. 2008 -034 and Reasonable Accommodation No. 2009 -004. PASSED, APPROVED AND ADOPTED THIS 21P DAY OF JANUARY, 2010. ATTEST: City Clerk MAYOR KI ATTACHME Yellowstone Women's First Step House, Resolution Sustaining Hearing Officer's Denial with Prejudice as to 1621 Indus Street: Use Permit No. 2008 -035 and Reasonable Accommodation No. 2009 -005 (PA2008 -106) RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING APPEALS, AND SUSTAINING AND AFFIRMING THE DECISIONS OF THE HEARING OFFICER TO DENY WITH PREJUDICE USE PERMIT NO. 2008-035 AND REASONABLE ACCOMMODATION NO. 2009- 005 FOR AN EXISTING RESIDENTIAL CARE FACILITY LOCATED AT 1621 INDUS STREET, NEWPORT BEACH, CALIFORNIA (PA 2008 -106) WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings, and the ordinance amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.91A to the NBMC, which permits persons whose use of property was made nonconforming by the adoption of the ordinance to seek issuance of a use permit to continue the nonconforming use; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC, which sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, at the time Ordinance No. 2008 -05 was adopted, Yellowstone Women's First Step House, Inc. (Yellowstone) operated four facilities without having obtained use permits from the County of Orange at the time of establishment of the use located in the Santa Ana Heights Specific Plan District and zoned Residential - Single Family (RSF), which pursuant to Ordinance No. 2008 -05 would be classed as "Residential Care Facility, General Unlicensed:" and WHEREAS, applications were filed by Yellowstone with respect to property located at 1621 Indus Street, and legally described as Lot 18, Tract 4307, in the City of Newport Beach, County of Orange, State of California (APN 119 - 361 -04), as per map recorded in Book 153, Pages 18 -20 of Miscellaneous Maps; and WHEREAS, Yellowstone applied for a use permit to allow the continued operations of the facility, and applied for reasonable accommodation requesting: (1) that the residents of the facility be treated as a single housekeeping unit as defined in Section 20.03.030 of the NBMC; (2) an exemption from the occupancy restrictions of NBMC Section 20.91A.050 which requires that use permits granted to residential facilities restrict occupancy to no more than 2 residents per bedroom plus one additional resident; and (3) an exemption from the City's requirement that all use permit applicants pay an application filing fee; and WHEREAS, a public hearing was held on February 20, 2009 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code, and evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was continued to March 12, 2009, where the public hearing was reopened on the matter of the use permit application to receive additional evidence, and continued on the matter of the reasonable accommodation requests, to take testimony from staff, the applicant, and the public; and WHEREAS, both hearings were presided over by Thomas W. Allen, Hearing Officer for the City of Newport Beach; and WHEREAS, the Hearing Officer determined the Yellowstone facility located at 1621 Indus Street was not a legally - established use when the use was established within the Orange County unincorporated territory know as West Santa Ana Heights, and was not qualified to seek a use permit to continue the use in its current location; and WHEREAS, the Hearing Officer determined not all of the five findings required pursuant to Section 20.98.025 (B) of the NBMC could be made to grant Reasonable Accommodation No. 2009 -005 for the request to treat residents of the facility located at 1621 Indus Street as a single housekeeping unit, as defined in Section 20.03.030 of the NBMC; and WHEREAS, the Hearing Officer determined the request for an exemption from the occupancy restrictions of NBMC Section 20.91A.050 was not necessary because a use permit to allow the continued operation of the facility was denied; and WHEREAS, the Hearing Officer adopted, Resolution No. HO- 2009 -004, denying Use Permit No. 2008 -035 with.prejudice, and Resolution No. HO- 2009 -008, denying Reasonable Accommodation No. 2009 -005 with prejudice; and WHEREAS, Yellowstone filed appeals of the Hearing Officer's decisions requesting that the City Council consider: (1) the denial with prejudice of Use Permit No. 2008 -035 to allow the continued operations of the facility; (2) the denial with prejudice of Reasonable Accommodation No. 2009 -005 to treat the residents of the facility as a single housekeeping unit; and (3) the request for exemption from the occupancy restrictions of NBMC Section 20.91A.050; and WHEREAS, pursuant to Section 20.98.025 A of the NBMC, the standard of review on appeal shall not be de novo and the City Council shall determine whether the findings and determinations made by the Hearing Officer were supported by substantial evidence in the administrative record and presented during the evidentiary hearing. The City Council may sustain, reverse or modify the decisions of the Hearing Officer; and WHEREAS, a public hearing on the appeals of the Hearing Officer's decisions to deny with prejudice Use Permit No. 2008 -035 and Reasonable Accommodation No. 2009 -005 was scheduled on September 22, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place, and purpose of the aforesaid meeting was given. The September 22, 2009. hearing was continued to November 24, 2009, and this hearing was continued to December 2, 2009. The December 2, 2009 hearing was continued to January 11, 2010; and 2 WHEREAS, at the continued public hearing on January 11, 2010, the City Council considered evidence in the administrative record, including the analysis in the staff report, the February 20, 2009 and March 12, 2009 public hearing transcripts, and documents submitted by the public; and WHEREAS, following testimony from staff, the appellant, and the public, the City Council determined that substantial evidence exists in the administrative record to support the Hearing Officer's decision to deny with prejudice Use Permit No. 2008 -035 and Reasonable Accommodation No. 2009 -005, and to support the Hearing Officer's determination that the request for an exemption from the occupancy restrictions of NBMC Section 20.91A.050 was not necessary, thereby denying the appeals, and sustaining and affirming the Hearing Officer's decisions; and WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(b)(3) (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. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. NOW THEREFORE, BE IT RESOLVED: Section 1. The City Council of the City of Newport Beach, having reviewed the administrative record and having received and considered argument at its hearing of the matter finds the above recitals to be true and correct and adopts them as findings in this matter. Section 2. The City Council of the City of Newport Beach hereby denies the appeals, and sustains and affirms the decisions of the Hearing Officer to deny with prejudice Use Permit No. 2008 -035 and Reasonable Accommodation No. 2009 -005, PASSED, APPROVED AND ADOPTED THIS 2e DAY OF JANUARY, 2010. ATTEST: City Clerk 3 MAYOR ATTACHMENT 3 Yellowstone Women's First Step House, Inc. Resolution Sustaining Hearing Officer's Denial with Prejudice as to 1571 Pegasus Street: Use Permit No. 2008 -036 and Reasonable Accommodation No. 2009 -006 (PA2008 -107) RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING APPEALS, AND SUSTAINING AND AFFIRMING THE DECISIONS OF THE HEARING OFFICER TO DENY WITH PREJUDICE USE PERMIT NO. 2008 -036 AND REASONABLE ACCOMMODATION NO. 2009- 006 FOR AN EXISTING RESIDENTIAL CARE FACILITY LOCATED AT 1571 PEGASUS STREET, NEWPORT BEACH, CALIFORNIA (PA 2008 -107) WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings, and the ordinance amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.91A to the NBMC, which permits persons whose use of property was made nonconforming by the adoption of the ordinance to seek issuance of a use permit to continue the nonconforming use; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC, which sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies; and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, at the time Ordinance No. 2008 -05 was adopted, Yellowstone Women's First Step.:House, Inc. (Yellowstone) operated.four facilities without having obtained use permits from the County of Orange at the time of establishment of the use located in the Santa Ana Heights Specific :Plan District and zoned ResidentiakSingle Family (RSF), which pursuant to Ordinance No. 2008 =05 would be classified as 'Residential Care Facility, General Unlicensed:" and WHEREAS, applications were filed by Yellowstone with respect to property located at 1571 Pegasus Street, and legally described as Lot 8, Tract 4307 in the City of Newport Beach, County of Orange, State of California (APN 119 - 361 -14), as per map recorded in Book 153, Pages 18 -20 of Miscellaneous Maps; and WHEREAS, Yellowstone applied for a use permit to allow the continued operations of the facility, and applied for reasonable accommodation requesting: (1) that the residents of the facility be treated as a single housekeeping unit as defined in Section 20.03.030 of the NBMC; (2) an exemption from the occupancy restrictions of NBMC Section 20.91A.050 which requires that use permits granted to residential facilities restrict occupancy to no more than 2 residents per bedroom plus one additional resident; and (3) an exemption from the City's requirement that all use permit applicants pay an application filing fee; and WHEREAS, a public hearing was held on February 20, 2009 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code, and evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was continued to March 12, 2009, where the public hearing was reopened on the matter of the use permit application to receive additional evidence, and continued on the matter of the reasonable accommodation requests, to take testimony from staff, the applicant, and the public; and WHEREAS, both hearings were presided over by Thomas W. Allen, Hearing Officer for the City of Newport Beach; and WHEREAS, the Hearing Officer determined the Yellowstone facility located at 1571 Pegasus Street was not a legally - established use when the use was established within the Orange County unincorporated territory know as West Santa Ana Heights, and was not qualified to seek a use permit to continue the use in its current location; and WHEREAS, the Hearing Officer determined not all of the five findings required pursuant to Section 20.98.025 (B) of the NBMC could be made to grant Reasonable Accommodation No. 2009 -006 for the request to treat residents of the facility located at 1571 Pegasus Street as a single housekeeping unit, as defined in Section 20.03.030 of the NBMC; and WHEREAS, the Hearing Officer determined the request for an exemption from the occupancy restrictions of NBMC Section 20.91A.050 was not necessary because a use permit to allow the continued operation of the facility was denied; and WHEREAS, the Hearing Officer adopted Resolution No. HO- 2009 -005, denying Use Permit No. 2008 -036 with prejudice, and Resolution No. HO- 2009 -009, denying Reasonable Accommodation No. 2009 -006 with prejudice; and WHEREAS, Yellowstone filed appeals of the Hearing Officer's decisions requesting that the City Council consider: (1) the denial with prejudice of Use Permit No. 2008 -036 to allow the continued operations of the facility; (2) the denial with prejudice of Reasonable Accommodation No. 2009 -006 to treat the residents of the facility as a single housekeeping unit; and (3) the request for exemption from the occupancy restrictions of NBMC Section 20.91A.050; and WHEREAS, pursuant to Section 20.98.025 A of the NBMC, the standard of review on appeal shall not be de novo and the City Council shall determine whether the findings and determinations made by the Hearing Officer were supported by substantial evidence in the administrative record and presented during the evidentiary hearing. The City Council may sustain, reverse or modify the decisions of the Hearing Officer; and WHEREAS, a public hearing on the appeals of the Hearing Officer's decisions to deny with prejudice Use Permit No. 2008 -036 and Reasonable Accommodation No. 2009 -006 was scheduled on September 22, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place, and purpose of the aforesaid meeting was given. The September 22, 2009 hearing was continued to November 24, 2009, and this hearing was continued to December 2, 2009. The December 2, 2009 hearing was continued to January 11, 2010; and 2 WHEREAS, at the continued public hearing on January 11, 2010, the City Council considered evidence in the administrative record, including the analysis in the staff report, the February 20, 2009 and March 12, 2009 public hearing transcripts, and documents submitted by the public; and WHEREAS, following testimony from staff, the appellant, and the public, the City Council determined that substantial evidence exists in the administrative record to support the Hearing Officer's decision to deny with prejudice Use Permit No. 2008 -036 and Reasonable Accommodation No. 2009 -006, and to support the Hearing Officer's determination that the request for an exemption from the occupancy restrictions of NBMC Section 20.91A.050 was not necessary, thereby denying the appeals, and sustaining and affirming the Hearing Officer's decisions; and WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(b)(3) (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. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. NOW THEREFORE, BE IT RESOLVED: Section 1. The City Council of the City of Newport Beach, having reviewed the administrative record and having received and considered argument at its hearing of the matter finds the above recitals to be true and correct and adopts them as findings in this matter. Section 2. The City Council of the City of Newport Beach hereby denies the appeals, and sustains and affirms the decisions of the Hearing Officer to deny with prejudice Use Permit No. 2008 -036 and Reasonable Accommodation No. 2009 -006. PASSED, APPROVED AND ADOPTED THIS 2e DAY OF JANUARY, 2010. ATTEST: City Clerk 3 MAYOR ATTACHMENT 4 Yellowstone Women's First Step House, Inc. Resolution Sustaining Hearing Officer's Denial with Prejudice as to 20172 Redland Drive: Use Permit No. 2008 -037 and Reasonable Accommodation No. 2009 -007 (PA2008 -108) RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING APPEALS, AND SUSTAINING AND AFFIRMING THE DECISIONS OF THE HEARING OFFICER TO DENY WITH PREJUDICE USE PERMIT NO. 2008 -037 AND REASONABLE ACCOMMODATION NO. 2009- 007 FOR AN EXISTING RESIDENTIAL CARE FACILITY LOCATED AT 20172 REDLANDS DRIVE, NEWPORT BEACH, CALIFORNIA (PA 2008 -108) WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings, and the ordinance amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.91A to the NBMC, which permits persons whose use of property was made nonconforming by the adoption of the ordinance to seek issuance of a use permit to continue the nonconforming use; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC, which sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, at the time Ordinance No. 2008 -05 was adopted, Yellowstone Women's First Step House; Inc. (Yellowstone) operated four facilities without having obtained use permits from the County of Orange at the time of establishment of the use located in the Santa Ana Heights Specific Plan District and zoned Residential - Single Family (RSF), which pursuant to Ordinance No. 2008 -05 would be classified as "Residential Care Facility, General Unlicensed;" and WHEREAS, applications were filed by Yellowstone with respect to property located at 20172 Redlands Drive, and legally described as Lot 36, Tract 4307, in the City of Newport Beach, County of Orange, State of California (APN 119 - 362 -07), as per map recorded in Book 153, Pages 18 -20 of Miscellaneous Maps; and WHEREAS, Yellowstone applied for a use permit to allow the continued operations of the facility, and applied for reasonable accommodation requesting: (1) that the residents of the facility be treated as a single housekeeping unit as defined in Section 20.03.030 of the NBMC; (2) an exemption from the occupancy restrictions of NBMC Section 20.91A.050 which requires that use permits granted to residential facilities restrict occupancy to no more than 2 residents per bedroom plus one additional resident; and (3) an exemption from the City's requirement that all use permit applicants pay an application filing fee; and WHEREAS, a public hearing was held on February 20, 2009 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code, and evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was continued to March 12, 2009, where the public hearing was reopened on the matter of the use permit application to receive additional evidence, and continued on the matter of the reasonable accommodation requests, to take testimony from staff, the applicant, and the public; and WHEREAS, both hearings were presided over by Thomas W. Allen, Hearing Officer for the City of Newport Beach; and WHEREAS, the Hearing Officer determined the Yellowstone facility located at 20172 Redlands Drive was not a legally - established use when the use was established within the Orange County unincorporated territory know as West Santa Ana Heights, and was not qualified to seek a use permit to continue the use in its current location; and WHEREAS, the Hearing Officer determined not all of the five findings required pursuant to Section 20.98.025 (B) of the NBMC could be made to grant Reasonable Accommodation No. 2009 -007 for the request to treat residents of the facility located at 20172 Redlands Drive as a single housekeeping unit, as defined in Section 20.03.030 of the NBMC; and WHEREAS, the Hearing Officer determined the request for an exemption from the occupancy restrictions of NBMC Section 20.91A.050 was not necessary because a use permit to allow the continued operation of the facility was denied; and WHEREAS, the Hearing Officer adopted Resolution No. HO- 2009 -006, denying Use Permit No. 2008 -037 with prejudice, and Resolution No. HO- 2009 -010, denying Reasonable Accommodation No. 2009 -007 with prejudice; and WHEREAS, Yellowstone filed appeals of the Hearing Officer's decisions requesting that the City Council consider: (1) the denial with prejudice of Use Permit No. 2008 -037 to allow the continued operations of the facility; {2) the denial with prejudice of Reasonable Accommodation No. 2009 -007 to treat the residents of the facility as a single housekeeping unit; and (3) the request for exemption from the occupancy restrictions of NBMC Section 20.91A.050; and WHEREAS, pursuant to Section 20.98.025 A of the NBMC, the standard of review on appeal shall not be de novo and the City Council shall determine whether the findings and determinations made by the Hearing Officer were supported by substantial evidence in the administrative record and presented during the evidentiary hearing. The City Council may sustain, reverse or modify the decisions of the Hearing Officer; and WHEREAS, a public hearing on the appeals of the Hearing Officer's decisions to deny with prejudice Use Permit No. 2008 -037 and Reasonable Accommodation No. 2009 -007 was scheduled on September 22, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place, and purpose of the aforesaid meeting was given. The September 22, 2009 hearing was continued to November 24, 2009, and this hearing was continued to December 2, 2009. The December 2, 2009 hearing was continued to January 11, 2010; and 2 WHEREAS, at the continued public hearing on January 11, 2010, the City Council considered evidence in the administrative record, including the analysis in the staff report, the February 20, 2009 and March 12, 2009 public hearing transcripts, and documents submitted by the public; and WHEREAS, following testimony from staff, the appellant, and the public, the City Council determined that substantial evidence exists in the administrative record to support the Hearing Officer's decision to deny with prejudice Use Permit No. 2008 -037 and Reasonable Accommodation No. 2009 -007, and to support the Hearing Officer's determination that the request for an exemption from the occupancy restrictions of NBMC Section 20.91A.050 was not necessary, thereby denying the appeals, and sustaining and affirming the Hearing Officer's decisions; and WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(b)(3) (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. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. NOW THEREFORE, BE IT RESOLVED: Section 1. The City Council of the City of Newport Beach, having reviewed the administrative record and having received and considered argument at its hearing of the matter finds the above recitals to be true and correct and adopts them as findings in this matter. Section 2. The City Council of the City of Newport Beach hereby denies the appeals, and sustains and affirms the decisions of the Hearing Officer to deny with prejudice Use Permit No. 2008 -037 and Reasonable Accommodation No. 2009 -007. PASSED, APPROVED AND ADOPTED THIS 26"' DAY OF JANUARY, 2010. ATTEST: City Clerk 3 •C COTITIL COUNCIL AGENDA 1- 2.0.16 1 -11 -10 • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT 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 9491644-3131 or dhuntOnewportbeachca.00v SUBJECT: Appeal of Hearing 'Officer's Denial of Use Permits and .Reasonable Accommodations — 1561 Indus, 1621 Indus, 1571 1 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 (PA2668 -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: Appeal of Hearing Officers Denial of Use Permits and Reasonable Accommodations - 1561 Indus, 1621 Indus, 1571 Pegasus, 20172 Redlands (Yellowstone Women's First Step House, Inc.) December 2, 2009 Page 2 Reverse the Hearing Officer's decision and authorize the issuance of the requested use permit(s) 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 Irxius 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,conditionaliy 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, • 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.) December 2, 2009 Page 3 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 20.99A.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 HEAIRING.OFFICEWS DECISION: •A noticed public.hearing. was conducted by the Heanng,Officer on February 20, 2009, at which the Hearing Officer heard testimony from City staff and As ;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 forthe facility located. at 1621 Indus Street and Use. Permit No. 2008 -037 for the facility located. at 20172.Redlands.Drive; for a. maximum of 1:5 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. 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.) • December 2, 2009 Page 4 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; 2069 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 facilitywould 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 Speck 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; 01`412) 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 ofstate or local law. In addition, staff questioned. ' whether Yellowstone. as an illegat. use, had been qualifred4o 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, 2609 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 . arid 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 Accommodabon: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 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.) • December 2, 2009 Page 5 No: "1 and 3.Z 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 W 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 publici 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 1n a public setting. (HR, Y 01523 — 24, 01542, 01557) The applicant. stalled that' fees quoted on website: did not necessarily reflect fees actually charged, and' that it was willing to provide staff with additional financial information. (HR, Y 01551) The I Hearing Officer directed Yellowstone to submit any financial information it chose to staff within one'week of the hearing. He, further directed. taff;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 C+ty Council with the City Clerk, aft. ached 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) 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.) • December 2, 2009 Page 6 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,.theCitys decision regarding the occupancy exemption was rendered moot Although the City never specifically ruled on this particular reasonable accommodation requests 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. unite; 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 a reeme' on a mutual1 acce table abater' 9 . y... P agreement. , DISCUSSION: Appeals of Hearing Officer's decisions on reasonable accommodation requests, as well as .appeals on- userpermits 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? 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. Appeal of Hearing Officers Denial of Use Permits and Reasonable Accommodations 1561 Indus, 1621 Indus, 1571 Pegasus, 20172 Redlands (Yellowstone Women's First Step House, Inc.) . December 2, 2009 Page 7 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 Counat 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 he has been properly presented to. and considered by the'City Council in these de novo hearings. 2. Standard of Review — Use nerrn is in rlisfrirts 7onari fnr rvmir1P.ntin1 tk,t -d NBMC Chapters 20.91A and 20M.. estabiish 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 a.uthd* 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 forreasonable 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 20.91A. 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 City Councl, 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. 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.) December 2, 2009 Page 8 (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 speck 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 a's a matter of law: Apr ejudicial abuse of discretion is.established if the Hearing Officer did not proceed in a manner required bylaw, or if his findings are not supported by.substantial evidence in the record. (Sierra Club v. County of Napa (2004) 121 Cal.App.0 1490,1497.) City staff, the applicant and members of the public maymake 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 fro m 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.4"' 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." (Id.) "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." ,(129 CalApp.40' 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 Appeal of Hearing Officers Denial of Use Permits and Reasonable Accommodations 1561 Indus, 1621 Indus, 1571 Pegasus, 20172 Redlands (Yellowstone Women's First Step House, Inc.) . December 2, 2009 Page 9 decision below. (Berkeley Keep Jets Over the Bay Committee v. Board of Commissioners of the Port of Oakland (2001) 91 Cal.App.0 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.e 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 (2600) 30 Cal.App.0 329, 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.e at 1498.) The testimony of a single witness can constitute •substantial evidence. (Phelps v State Water Resources Control Board (2007) 157 Cal.App.e 89; 99.) When reviewing an ' administrative decision under the 'substantial evidence test; the' reviewing body considers all, in the administrative record; beginning with the presumption that the record contains evidence to sustain the hearing officers findings of fact. (156 Cal.App.4'" at 1371.) In summary, the City Council may overturn the Hearing Officers decision only_if it finds that there are insufficient facts, or expert opinions supported by facts, in the hearing record to support the Hearing Officers 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 Officers 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 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.) December 2, 2009 Page 10 20.98.025 requires that the Council either identify spec 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 CEQk 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 11 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 modifies a Hearing Officer decision, staff recommends that a resolution be prepared setting out and; memorializing. the ;C.ity. 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 Davttl 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 • • fAD9-004441 CC staff Repot for 122.09 Agenda • n U Staff Report: Yellowstone -'Appeal 6f Hearing:0cer's Denial of Use Permits and Reasonable Accommodation CITY OF NEWPORT BEACH 40 MEMORANDUM TO: O)a ayo r and Members of the City Council FROM: therine 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 °.) 0. The staff deport submitted by the Office 'of the City Attomey = for this appeal sets �t firth the background of Ah e application process`;, the public hearings the „Hearing Officer's: actons, the filing of this appeal;' =and: the:> applicant's stated rounds' for appeal. .:The City Attomey'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 reasonabte accommodation..:Information -on the procedural background of the appeafiwill not be repeated in this-inemorandum. However, some of Ahe 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 Officers 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;poncludes. that there'is'substantiaPevidence in the record to support the Hearing Officer's decision. i 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 at 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: 1. 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 Officer's decisions to deny Reasonable Accommodation No.'s 2009 -004, 2009 -005, 2009 -006 and 2009 7007; 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: L. 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) applicatibn 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 accaiimodation 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 speck 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 Officers 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. Yetlowstone Women's First Step House, Inc. — Appeal to City Council December 2, 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.0 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.e at 1498.) The party seeking review (in this case, the applicant) bears the burden of showing that the Hearing Officers 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.0 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.4'h at 1498.) The testimony of a single. witness can -constitute substantial evidence. (Phelps v. State Water Resources Control Board (2007) 157 Cal.App.e 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. II. 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 aitemate conclusion. Although facts in the record might lead the City Council to a conclusion different from the Hearing Officers, the City Council may not overturn the Hearing Officer's decision on the grounds 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 Oakfand (2001) 91 Cal.App.e 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, Inc_ — 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(6) 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 'b 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 Unitas: -M6 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 separatelyat 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 i. s 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,_,fhe 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 mponse,, 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. 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. Giyen that both the May 20, 2008 reasonable accommodation application and the applicant's CEO stated that the applicant determines the household makeup, applicants 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 propery 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 ota 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, "Applicants 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 writtentease (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(8) 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(6)(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 suonort the Hearin 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 — °[A] request to be considered a Single Housekeeping. Unit is essentiallya request to be exempted from all of the provisions of Ordinance No. 200"5 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 We 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).care be formulated that could get to that result.- (HR, YS 01522) B. NBMC §20.98.025(6)(4) - Finding No. 4: The .requested accommodation will not result in a fundamental alteration in the nature of the City's zoning program, as fudiOlamental alteration is defined in Fair Housing .Laws and.interpretive case law. • HFISRING OFFICER'S DETERMINATION: This finding cannot -be made. Discussion;.. When a reasonabie-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 individualsrare living together in a dwelling as a single housekeeping unit. This definition is necessary because of tha 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 firing 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 26, 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: o Litter in the neighborhood which complainants attribute to the applicant's facilities, including cigarette butts soda cans and beer cans and bottles, o ',Family and other visitors to the facilities, o Facility residents traveling in groups between one, facility and the others; o Meetings held regularly atone or more of the applicant's facilities, with outside attendees; o 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 — win closing 1 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 hotellmotel complex... 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'4he temporary residents 'exhibit a demeanor that is respectful of the permanent residence should be strongly considered . While much of what? would like to see put in place falls to (Yellowstone) ...i 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 (1TE) 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): o In answer to Citys 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 property's needs: The residents at the property do not have automobiles and rely upon public transportation and/or carpooling." o 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 serviced 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 ... Parkin o 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... [during 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. "(HR, 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 timesloaded with personal possessions for extended periods of time." (HR, YS 01039) "On their meeting rites 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. t 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 1 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,— "(Wje'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 amounfofconcentration of the vehicles that we have associated with the various houses. "(HR, YS 01 IV) • 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 Pro nerlr ... (AlIthough 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) o 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 . . 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.. . t/isitors Ositation with family and fiiends 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. l have seen women from the Pegasus house walk upto (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 l 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 miss... ( Tjhey 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 — a7rash, bottles and cigarette butts on the street and parkways has increased, parking of vehicles for several days at a time is common, and gro ups 7&om meetings mill about talking loudly. These issues cause a negative impact on the neighborhood." (HR, YS 01042) . Correspondence from neighbor (Harvey) for February 20, i004-hearing — `On several occasions we have observed...a line of men walk from the Yellowstone facility at 20172 Redlanr i Drive, enter the adjacent Yellowstone facility for women at 1621.1.ndus 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 requited." (HR, YS 01111) • Testimony (B. Walker) at February 20, 2009 hearing.— "This; house ... 1561 is the only one ofthe'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 . [Alt 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 201.72 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 nightlearly 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 — infrostructure . .specflcally 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 has4vill 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 neighborhood, and institutionalization: • Corcespondence frdm. neighbor (Devine).for February 20 2009 hearing — "/ have gathered the number of resfderits' oh'each of the streets for comparison. o 'On Pegasus Street . where there are 26 homes, 26.8% of the population on those two blocks would be recovering. alcoholics and addicts ff the exception was permitted. o "On Indus Street, where there. are 14 homes total,. 47% of the population on that street would be recovering alcoholics or addicts. o "On Redlands Street, 75percent 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, l 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. • • • l J Yellowstone Women's First Step House, inc. — Appeal to City Council December 2, 2009 Page 14 allow 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(6)(2) - Finding No. necessary to provide one or more opportunity to use and enjoy a dwelling. 2: The requested accommodation is Individuals with a disability an equal (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 bed(s) (at the facilities) were unavailable to them. because of the occupancy restrictions of NBMC Section 20.91A.050(C)(2) (HR. YS'00863 — 64)... "alt 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.accbmmodation should be granted.. However, the. courts generally consider more detailed, verified financial information to reach that conclusion. (See Oxford House- Evergreen Y. City of Plainfield, 769 F.Supp. 1329 (1991)) 'The applicant has not submitted financial information speck 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 speck 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 $4,500 1month, $8001inonth for uCtlitfes ... and $9001month 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 $166 - $180 per week. Using the applicant's own reporting formulai this represents an average of $170 per resident per week. With 1.6 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 toial'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, actually operate at: a . monthly profit of approximately $1,280, or approximately.. $15,360 per year ($46,680. 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) C� 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 ot.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. ... (I)f 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 five (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 verflable 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 (IT €) 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. • V [Public copy available, for review at City Clerk's office or online at www.newportbeachca.gov under City Government >Current Projects,an:d Issues >Group Homes >Resolutions] • Staff Report: Yellowstone .. Appeal of Hearing Officer's Denial . of Use Permits and Reasonable Accommodation CITY OF NEWPORT BEACH 0. MEMORANDUM TO: Honorable Mayor and Members of the City Council FROM: Janet Johnson Brown, Associate Planner Catherine Wolcott, Deputy City Attorney V� DATE: December2, 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 PermiYNo. 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 4* the Office of. the;City Attorney provides the bacl�groui5d of the "apphca ton, process, °the public hearii ys, the Heanng Officers actions, .the filutg 1.*,.these appeals, and the apphcant'srstated- grbunds for tho appeals. The City Attomey's'staff 4eport 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 use permits to allow the continued_operation : of - exsting u facilities for each of its four Newport Beach locations? ' RECOMMENDATION: Staff recommends the City Council' of Yellowstone's applications for rilicensedt adult residential, care Review the administrative record, including the analysis in the staff reports for the public hearings, and the transcripts of the hearings; and City Hall • 3300,Newpon 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. 2068-05, and the effective date of:the Ordinance on February 22, 2008. • N @MC 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 eto, continue operation .at.:their current locations. Yellowstone's facilities would be classified as .a "Residential Care Facility, Generat- Unlicensed,° and are located in a RSF. (Residential Single. Family) district where, under Ordinance No: 200 "5; -such uses are not permitted or conditionally permitted. Yellowstone applied- fora 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 Officers, the City Council may not overturn the Hearing Officers 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 Officers 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. 2608 -034 for the facilitylocated 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 staffto 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 perfacility: The hearing was'cantinued 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 Offrcerreopen 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 10 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 'All references to the administrative record are designated -H 13, 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 use's at that time-' 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: 1961 Indus Street- 2007 1621 Indus Street: 2003 15711 Pegasus Street. 2405 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 perinit for large gro up homes,'staff -was advised' that the uses would have been classified as either a "Community Care racility` or "Congregate Care Facility." Staff was also advised by County staff that both uses would be allowed _without a 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 Departmentto 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 notto exceed 16 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 Califomia 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 place 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 I egulations. 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 I 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 providedAuring.testimony and information in the administrative record . is su pportive. of the Hearing Officer's determination. • kequired`Findings for a Use Permit: The Wearing 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 facii'ity to remain in operation:. In order. to. issue..a use permit, he or she must be able to make :each. one of elevery(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.1160 Finding A: The use conforms to all applicable provisions of NBMC §2o: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 •s 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. 7. 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 theaCounty 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•1 2 residents were permitted subject to the approval of a use permit granted by fihe Planning Commission: Per documentation ,provided by the ;applicant, the ;Yellowstone facilities located at 20172 Redlands Qrive' and 1571 Pegasus Street were established in':-2005 (altho ugh. '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 fora 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 commbbiy 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 oorisistent 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 parm'it process, the potential for overconcentration of residential can: 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 T's clear that there is a cluster of uses in this one particular location." (HR, YS 01235) 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 ►nade .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 byfacility 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 i 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 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:indiwdual 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 . _ . [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) 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...... 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 lndus,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 haves, 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 rains... [Tjhey..haye 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 alf flour 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." (H R; 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 datedl 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 Oecember 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 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 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 statementsmade'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... [d]unng the months that the facility next to my: home has been in operation have had clients' parkin front of my property rather than in the empty driveway of the Yellowstone Women's First Step House Inc. facility .. r There are vehicles coming and going, doing drop offs, or 'visitor' standing or parking, and the duration of this activity goes from very eany 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. "(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 — "(Wje'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 Nearing Information December 2, 2009 Page 11 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. 7hey 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) lmoacts 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 iYs 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.,, 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.Ihe property next to mine t 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, %n 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 hoteVinotel 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 72 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 atleast two occasions I have seenlarge 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 samewrrespondence, 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 applicanf provided a . statement signed by Steven Thames, Owner, that the residence located 20172 Redlands Drive is "currently licensed with the State of Califomia, 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 00144) 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 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 00262) Yellowstone Women's First Step House, Inc. Appeal Hearing Information December 2, 2009 Page 13 Correspondence from neighbor .(J. Walker) for February 20; 2009 hearing — 01 • understand that the disabilities act provides protection from: discrimination for these individuals. However as a property,owner whose home. this area is,. .1 expect that the city will not transfer burden to me. I believe that facilities could be run in a. residential neighborhood, but carefui.attention to detaft.is.paramount. The facilities must be closely supervised 24(7. 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 = Ng. 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 staffrto prepare resolutions for adoption at the next City. Council, meeting.- • E 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 I APR -27 -2009 MM 08'3! RM UAY1S IiflT1AM aPc 1621 Indus rHA in uqa pro Sara • MR-274011 WN 08:37 Aft DAVIS RAYBURN aoc FAX M 949 379 3875 P. 07 CrrY OF NEWPORT BEACH APR -27 -2009 MN 0837 An MVIS RAYBM ape Pfix ft U411 3fu mre CITY OF NEWPORT BEACH T1014 TO APPEAL DWMON:OF THE HEARM OFFICER Projaet Um PA: 2008 -108 Apptleatton No.: Reas, Aim. 2009,05 Nan* of Appellant: Yellowstone v5hvn s First Step Mmm. Inc. Dr. Ama Made Thames Phone: (949) 67a-sm Sloe Address: 1621 Indus. NewW Seams, California 82707 Date of Hearing omcces dedsion: AW 14.2t>09 (on appi'icafth far Corahtiwml Use Permit) Name of Appacwt: - Yellowstcme VYomerr's first Step Fuse, M.P. (Description of application fled with Mmid g Offices) 17W-7- - 77 e: r: to I co e u • - Reasons fhrAppeW The My of Newport Beach denied the appkant's, cmdo"I use permit ap atom 9liaretpre. the Gds deerefen.riegatdf[±j °#ks oacaron wit's rarxietied moot Although the try never. � ruled on this partiisdar reasonat>fe .auxirtimodstton (equest, Yelowstone hereby. appeals because the 16,21 Indus home operates t Bret ltse required findings to'grant the requested reasMable accommodadon•can tie made. r. vo • •. �� -� auadsmot iBi.. APR-27-2009 HON 19:53 PH DAVIS RAYBURN apa 0 FAX NO. 949 3r8 3875 F. Ulm CITY OF NEWPORT BEACH APPLICATION TO APPEAL 0gPjSlOM OF THE HEARING OFFICER.; Project No. PA: 200 8_10a Applleiitlon No.: Reas. Accom. 2D09-05 Name at Appellant; Yellowstone Watnen's First Step House, Inc. Dr. Anna Marie Thames Phone: (949) 67OMW Site Address: 1621 Intim. Newport BeaeN California 92707 Data of Hearing Officer's decision. Aprl 14.2009 Name of Appliont: Yellowstone Women's First Step House. Inc- (Description of application filed with Heating Officer) Application for a Reasonable Accommodation pursuant to Ordinance NO. 20M05 we defined questing that 162 1 1. Indus. be treated as a Single Housekeeping Unit as in Spotiort 2O.OiG36 of ft'Newport Beach municipal C6&. Reasons for.Appe4l The tvwie operates such that.the . required findings to grant the requested reasonable a6mk.vftW aiion can'.bb.:madd. Therefore, the. City Of Newport Beach Improperly denied the .request, with pitibdide. April 27. 2009 tl4l"� Signature of Appellant ..Date FOR OFFICE USE ONLY: 4- Z o. Rembred by j Fee received Date I PYK-ZI -ZW9 MM UU-Sli fill ARYLS KNTMM ape riu mL uva Ito aora r. oc i • APR -27 -2009 MM 08:35 All DAVIN RAYMM ape PAR flu. 1148 arti ZZ6 CITY 00'm PORT BEACH r o_ frotel"d by In= few cmomwbw "Co" omcwo r. w APR - 272009 MH 0836 AN DAVIS RAYt31NtW ape 1,RX ML 114V Ub sure CITY OF. NEWPORT BEACH APPC ATIQN TO APPEAL: DEClS10W *P nW HEARING OFFICER ProjedNa PA: 2008-105 App on.Na: Reas. Accom. 2009 -04 Name of Appellant YellowstoneW Weman's:First Step House: it m Di: Anne Matte Tharivs Phone: (949) 678 -5000 Site Address: 1.561 Indus, Newport.6eeAZ1!lftmia9=7 . Data of "caring Offlcees deefsion: April 141.20"fon appkatian for C,orditio" Use Permit) U me of AppfkmnC Yellowstone Wbriie" Frst Step House, ittc. (Qest:rtption of application tiled Wfth'Hearing Officer) At>plicallon fair's Reasmable Accon madation Vursaard to OrWnatroe: No. 2ON-65 two residents'per bedm m,pkls one additional resideril tieasors:forAppeO! , The City.at WeWpctf tleai'ilenred the appltilrrts Ci therefore, the City's decision regardiing.thei'00cupar' Although the .CRY now spedfloWy ruled an tips :prk rrnif app8r�fiarrl request,. Yelowstom- hereby appeals because the 1561 Indus tioirie operates. such-that the required faidings to gt6nt the requested reasonable:mcftmodOon can be hu de . 1✓J Apra 27, 2009 Sq}rtatum of Appellant Date FOR OFFICE USE ONLY: Received by Fee received Date Gwoanvna aea seT�shobomydacal selgnptllr rMernet Fire carmowoalizr�cemnnppeN w .. Rmlao oaberkoecisiw,xicmr+wjke 0244tate..... _ . T T.. d OQ7COLOCYQ .. p1I" l Clp t) T T = 1 r. Ua • • RrK-if f -LIlw nun lRf'J0 tin I/ttYlb Kt1ttM ape MA M .M J 3017 • CITY OF NEWPORT BEACH MPLICATION TO APMLOECISION OF THE.,HEARING OffW R Project No. PA: 2008 -405 Applfeafion No:: Reas. Accom. 2009 =04 Marne of Appellant: Yellowstone Women's Fast Step House. Ine. Dr. Anne Marie Thames Phone: (949) M69000 Site Address. 1581 Indus. Newport Beach, CaRkmia 92707 Date of Nearing Officers decision: April 14.200.9 Name of Applicant Yellowstone, Women's First Step House. Inc, : (Descaption of application filed with .Hearing Officer) AWcation for a Reasonable .Accommodation pursuant to Ordinance No. 2008 -05 requesting. -that 1561 Indus he Iteated as a Sirx,)IE'.Houselteeping Unit :as defined in . Sectrorr20 03 09iI?of the Newport Beach Muridpai Code. • Reasons ibrApppa! The home;operates..such that the required findings to . grant the .requested easonaMe scoomr»ralation.oan be, Therefore, the City of Newport Beach impiope .devkd iu Gw h•pxejnFfx fe: April27. 2009 Signature Of Appellant Date FOR OFFICE USE ONLY. Q Received by Fee received Date r. w 0 VJW WC RbA 'TUT VU4 ode WMIHN -RTAWr LIU lf.:on mm mw .)mu • • 0 APR- 27 -20D9 IUNI D8,37 All DAVIS RAYFNNtTI ape PAX NU. 945 3/6 3875 dffYb0"NMN06& BEACH APPICATION b APPEAL 6"IM Of THE-HEARING OFFICER Pro ject No. PA: 200 8 -107 APphution Na Use Permit No. 200&038 Name of Appellant: Yelbwstona Women's First Step House, Inc. Dr. Anna Marie Thames Phone-..(MO) 678.8000 Site Addle= 1571 Pegasus Newport Beach, Catilomia 92707 Date of HeMbs Oft W8 decision April: 14, M9 IirK -'et-am mm UIS %Jf Hn UHYIS KNIIAIKN aye FHB NU. UQy Jfti �Zfb Y. 11 CITY OF NEWPORT MACH APPLtCAT10N TO APPEAL.D�CISION:Q�: TFiE!RINCs OFFICER project No. PA_.200&I07 Appl offlon Noe Reas. ACWM. 2009-M Name of Appellant YeHowstnne Women's First Step House, Inc. Dr. Anna W&I� ernes • • • APR -27 -2009 LAIN 08:37 AN DAVIS.RAYB M ape M Mk Uqu 1(0 MIZ) r. ra CRY OF NEWPORT BEACH APPL MATION TO APPEAL DECISION:OF THE ttFJtRM OFflM Project No. PA: 2008-107 Application No.: Reas. Ace m. 2009 -06 Name of Appellant: Yellowstone Wornen s first Step House, Inc, .Dr. Anna Ntaria Thames Phone: (949) 678 -8000 Site Address: 1571 Pegasus, Newport Beach. Cat'rfo da 82707 Date of hearing Otilcees decision: AprA 14, 2009 Name of Applicant: Yellowstone Women's Fast Step Hou m Lrr, (De wrlption of apptication filed with bearing OfHQt'+r) Application :for a Reasonable A=nmodWm .pursuant to Ordinance No. 200805 requesting that 1571 Pegasus be trued as:a Singfo Housekeeping Unit "as deflned`in Section 20:030M.ofthe Newport Beach Municipal Code. Reasons for Appeal The home operatss such that:the:regi*ad fmcangs tb; grant the requested reasonable aixcmmadation_:can be:made. There# ore, the City of Newport Beach iauprope* denled the r e*mnt. wdh Pr.ejudiee. Apr# 27,2W9 nature of Appellant pate. FOR OFFICE USE ONLY: Recehred by 1:ee reeeWed _ pate �' t AYR -17-MY MUN.U$:31 FM UAYIS KRYM M ape h1i11 MU y4y 3(0 Mfg • APR- 2'f-2U08 MM US:3f fin MV15 KHTMM an rHn nu aya oru mra CITY 00 NEWPORT BEACH APPLICAT1f TO APPEAL fCIS10N aF THE HEAFtiNG OFFICER Project No: PA: 2008 -108 AWlwftn No.; Use Pernik No. 20WIM Name of Appellaoti YeHOwstOne Wornen's First Step House, Inc. Or. Anna Mrie'Tfmmes . Phone: (949) 676 -9.000 Site Address: 20172 Refands brave, Newpoft 'Beach. Ca *nft 92707 Date of Headag Officer's decision: April 14.2069 Name of Appesant: YepowstonB Women's Fast Step House, Inc. (Desartption of appilcation filed vrlth Neafing O((Irxr) App pu 2008-05 requesting ca6otl for a- Corld8lorrel;Use Pern►ft rsuant to Ord6rance No. spproval. of.Use Permri No:.2008.037.to allow',20172 Redbnds.to °continue operating as. a 17 biW4dWt!s6W �ving:fadNty Reasons for.Appeal • The home operabea such that the required findings to 9rard a Conditlorsal Use Permit can be made- .therefM..": City Of Newport B"ch. bPgMdY. denied the request, Wilda . prejudice. Apd 27.20 Signature of Appellant ,........:,... , ... ... , Date &. lJ APR -27 -2009 MN 08:37 RH OAV15 t?AyuuKN ape rfix Nu. yqy nrti jarb CITY OF NEWPORT BEACH APPLIGATlON 10— AREAL =MR OF THE HEMMO OFFICER Projeel.NorPA: 20Q8-S08 Apptication No.: Real. Acoom.200"7 Names of Appellant: Yellowstone women's Fist Slap House. Inc. Dr Anna Mede;, names Phone: (949) 870-9000 SmeAddnw,= 20172RedlamisD &e,.NeMmd0eackCaWbmia92707 Date of Hearing Officer's decision: A15ni.14, : 2009 (on application for Conddional Use Permit) Name of AppHOant~ Yellowstone Women's First Step House, Inc: (Description of appll=Uon feed with Heating :Ofii =) Apps :for s Reasonable. AccmrtinalWm Kirsuant to Ordinance No. 200841) 1 reQuastin9 that 2M12 Re b0':Pei#nit�d .an exemption f M ; the o aneY restrfctfonrivf Section 20.91AMl of the NewpodZeach Mimic WCode wtdckresIrfcte ocupwi y- tolwo:residents per bedrwrn p w one pddftml resident, ReasonsdorAppeaf „ ;y The City of wwportit3each detded the. s'.c6dwanal use Per7*813pGgadlon, therefore, the Cfto decision regardlag- pansy exemption was tendemdit' loot.: Although the CRy:ne+e.specKrcaffy niled on Uft. particular reasonable accommadati6n request, Yellowswe hereby appeals. because the 20172 Redlands home:gperates Stich OW the nupAred findings to. Want the requeded reasonable accommodatier can be made. ..... . .. ...... FOR.OFF(CE USE ONLY: Received by Fewrecohred I Par aid SSNngs' MaoomYY.oe�16e�Ta�giarxY.�namar F6es1( aonami .0ulfook12f7oB2gTADPearal. FbarigOftleel'►Oaiiat6.n.0o�P ftadoi-0FaB� .. F'Od 9R�S9b9RbR 'aUOASmoTi a,� • • • • flYK-V -'CUUB JUM U8: if M Unvib KHTIJUM apC rna nu. ava 3ro jot:) r. ii CITY OF NEWPORT BEACH. APPLICATION TO APPEAL DEC Sm OF THE HEARING OFFICER. Pro)ed1lo. PA: 20W.108 ApplieaUon Nac: Real. Accom.2009 -07 Name of Appellant: YONOWStone Women's Frtst.Step House, k1c. Dr. Anna Marie Thames Phone: (949) 878 -9000 .. . Site Address: 20172 Redlands Drive. Newport Beach, California 92707 Cate of Hearing OtflWs decision: April 14, 2009 Name of Applicant Yellowstone Women's First Step Hasse. Inc: (Description of application filed vrtlh Hearing Meer) Application for a _.Reaso a Me Accommodation pursuant to Ordinance No. 2008-05 requestlng th020172 ttedlands be treated as a Single Houselaeeping Unit as defined in Sedron2b 00.030 ottha- lVemoport Beach Municipal lode. Reasons' for Appeal The home operates such that the required findings to Uragt the requested reasonable aecarrnodatiem:.can : bemade.'Theretore the Giy of.Nearpat Beadrimproperbr denied the request, °with prejudice. �— April 27.2008 Signature of Appellant Date FOR OFFICE USE ONLY: Reeeivadby Ft'*ftCeiWkI: bete CMcmvns and Sd&VVaobwnyUACd Soaffq[ lTmpaery NUM01 FkA CdiIft t*WbW 2771182MAPPed Of FleeAng 01ften DagtbndQ.= Kerivea =44.M jib. 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 Dear Mr. Hunt, Re: "RECEIV DAFTER"ENDA PRINTED:", 'L`2`V - November 27, 2009 3034 TENwsON ST. N.W. WASHINGTON, D.C. 20015 771. (202) 331 -5848 FAx (202) 537 -2986 SPOUN20EARTHUNK.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 •resid ential treatment facilities) inthe samemannerthose code provisions are applied to either"single -y x rn x m qp 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 •resid ential treatment facilities) inthe samemannerthose 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 nm, 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) 40 •David Hunt, Esquire Page 3 November 27, 2009 Oxford Houses are not substance abuse centers, halfwayhouses, shelters norcommunity 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 fiinancialresponsibility for the rent and utilities, which they pay out of 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 • ofthe 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 ZAlso, See Oxford House, Inc., et at 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 of Audubon, 797 F. Supp 353, affd 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 if he/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 ofTaylor 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 Cir. 1996). Here, there is substantial evidence that the requested accommodation is necessary to achieve an opportunity for the disabled residents of the Orange Avenue properties to live in a residential area of the City of Newport Beach. Absent the sober house setting, the individual residents of Yellowstone would not • be able to live in a supportive environment in a residential area, let alone a single - family residential area. See also Oconomowoc Residential Prog., 300 F.3d at 784 ("When a zoning authority 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 ofPlam, 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[.)" 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 ofMilwaukee, 465 F.3d 737, 749 (7th Cir. 2006) (en banc) ( "[T]he statute requires only accommodations necessary to ameliorate the effect of the plaintiffs disability so that she may compete equally with the non - disabled in the housing market."); Lapid- Laurel, L.L.C. v. Zoning Bd ofAdjustment of Twp of Scotch Plains, 284 F.3d 442, 460 (3d Cir. 2002) ( "[I]f the proposed accommodation provides no direct amelioration of a disability's effect, it cannot be said to be necessary. ") (quotation marks omitted); Forest City Daly Hous., Inc. v. Town off. Hempstead, 175 F.3d 144, 152 (2d Cir. 1999) (explaining that the relevant inquiry is whether "the non - complying features of the proposed residence are'necessary' in light of the disabilities ofproposed residents "); Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. Wis. 2002)(An accommodation is "necessary" if it will "affirmatively enhance a disabled plaintiffs quality of life by ameliorating the effects of the disability. ") See also, Developmental Servs. ofNeb. v. City ofLincoln, 504 F. Supp. 2d 714, 723 (D. Neb. 2007) and New Hope Fellowship, Inc. v. City of Omaha, 2005 U.S. Dist. LEXIS 39174 (D. Neb. 2005). Without the required accommodation residents of Yellowstone will be denied the equal opportunity to live in a residential neighborhood." Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d at 784 (citations omitted). In addition, a minimum oftwelve residents per address is necessary so that Yellowstone may be economically viable. Yellowstone is required to make mortgage payments, pay property taxes, insurance, utilities as well as expenses related to maintenance and upkeep on the properties. The cost ofthe 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 F.3d 192, 206 (5th Cir. 2000). The fact that the Glendora Oxford House concept). "The purpose of the fund is to make loans for the costs of establishing programs for the provision of housing in which individuals recovering from alcohol or drug abuse may reside in groups of not less than 6 individuals," and these group homes must operate under rules similar to the rules each resident agrees as a condition of living at Yellowstone Id. § 300x- 25(a)(1). Schwarz v. City of Treasure Island, 544 F.3d 1201, 1227 n. 16 (11th Cir. Fla. . 2008) °The Groome Court also held: "In addition to the commercial aspect of purchasing the home, it must be noted that the granting of reasonable accommodations to Alzheimer s group homes and other homes for disabled individuals also affects the commercial viability of care • organizations like Groome Resources. The district court found that the zoning ordinance, with its •David Hunt, Esquire Page 7 November 27, 2009 r1 I� home is a business should not be the basis for denying an accommodation when reasonable and necessary. Avalon Residential Care Homes, Inc. v. City of Dallas, 130 F. Supp. 2d 833, 841 (N.D. Tex. 2000))5. Yellowstone' requests for a reasonable accommodation is reasonable and necessary based on its need to pay normal household expenses as well as its business and operational expenses. For the reasons stated above, it is requested that the City Council find that there does not exist substantial evidence to support the findings of the hearing officer. It is further requested that the City Council approve Yellowstone's modified requests for a reasonable accommodation. cc: Christopher Brancart Yellowstone Properties, LLC Patrick Bobko Dana Mulhauser Paul E. Smith limitation on four unrelated persons, "will make it economically unfeasible for plaintiff to operate the proposed home." The court recognized that the economic viability of this care facility was impeded by the refusal to grant an accommodation" Groome Resources, Ltd v Parish of Jefferson, 234 F.3d 192,206 (5th Cir. La. 2000) 'Other circuits have also recognized that commercial group homes may be the only way for disabled individuals to live in a residential community. See Hovsons; Inc. v. Township of •Brick, 89 F.3d 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 Drtl 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 0 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 Croup 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 VW, 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 A 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. ✓PLC, / j C/—, _ iz �O9- �- 9.24 �0 0 • 1592 PEGASUS STREET NEWPORT BEACH. CA 92660 November l6, 2009 Dave Kiff, City Manager Newport Beach Plannin Department 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Re: Yellowstone Womeres House Appeal from Denial of Use Permit Na 2008 -036 (1571) and related properties Appeal from Denial of Reasonabfe Accommodation Na 2009 -06 (1571) and related properties Dear NIL 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 Fast 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 Womeds First Step House, Inc, located at 1571 Pegasus Street ("Use Location') in Newport Beach, California, is an cdsting group residential care facility operating an unlicensed "sober living" facility for 18 women in an mstmg single -family dwelling„ - 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 Corporation's 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, 7009 was ioitisl y 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 sprang the use of the facility, the Corporation has evidenced its intention to abandon the use contemplatod under its, applications and upon which its appeal n based- Moreover, by using the time allowed during the pendency of the appeals to altar, 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 bias The Corporation here appears only intent upon prolonging a process for which it has neither in support of ita claims S Cerely, Stephen E Abraham 0 1592 PEGASUS STREET • NEWPORT BEACH- 92660 PHONE: (949) 678 -6608• E -MAIL: STEPHEN ®ABRAHAM- LAWOFFICES.COM CJ CITY OF NEWPORT BEACH MEMORANDUM TO: Mayor and Members of the City Council 1� FROM: Catherine Wolcott, Deputy City Attorn y Kit Bobko, Special Counsel DATE: December 2, 2009 RE: Yellowstone Women's First Step House, Inc. Appeal — November 27, 2009 Amendments to Reasonable Accommodation Requests 1561 Indus Street: RA No. 2009 -004 (PA2008 -105) 1621 Indus Street: RA No. 2009 -005 (PA2008 -106) 1571 Pegasus Street: RA No. 2009 -006 (PA2008 -107) 20172 Redlands Drive: RA No. 2009 -007 (PA2008 -108) • Preliminary Staff Analysis of Amended and New Requests and Related Procedural Matters This memorandum is prepared in response to a letter sent to the Office of the City Attorney on November 27, 2009 ("the November 27 letter") by counsel for Yellowstone Women's First Step House, Inc. ( "Yellowstone "). On February 20, 2009 and March 12, 2009, the Hearing Officer considered the following requests and applications made by Yellowstone: • Use Permits — Yellowstone applied for use permits to continue operation at their current locations at their current capacities — 12 residents at 1561 Indus. 18 residents at 1621 Indus, 18 residents at 1571 Pegasus and 17 residents at 20172 Redlands (65 residents total). The Hearing Officer denied Yellowstone's use permit applications. • Reasonable Accommodation No. 1 — Yellowstone requested that each of its facilities be treated as a single housekeeping unit. In January 2009 correspondence and at March 12, 2009 public hearing, Yellowstone argued that they also operated as a single housekeeping unit. • Reasonable Accommodation No. 2 - Yellowstone asked for a waiver of the use permit occupancy limits of two residents per bedroom plus one additional resident. • • Reasonable Accommodation No. 3 — Yellowstone asked for a waiver of use permit fees due to financial hardship. City Hall • 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768 Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 Page 2 . The November 27 letter states that it amends Yellowstone's reasonable accommodation requests as follows: • Yellowstone requests reasonable accommodation to continue to house 12 residents at each of its four facilities (48 residents total.) (This request is generally related to Yellowstone's overall goal of continuing operation at its four facilities in some configuration, and is substantially similar to Yellowstone's requests for the granting of use permits. Staff does not consider this to be a new request.) • Yellowstone requests as a reasonable accommodation that the City treat each of its houses as a single housekeeping unit, by waiving the requirement that all of the residents be on a single written lease as required in the definition of single housekeeping unit in Newport Beach Municipal Code ( "NBMC ") section 20.03.030. (Staff considers this a restatement of a previous request.) Yellowstone requests the City grandfather the fire clearances it claims to have received from the Orange County Fire Authority prior to the City's annexation of Santa Ana Heights in January 2008. (This is a new request, but will not be further analyzed in this memorandum. Staff has previously informed Yellowstone it will accept any fire clearances granted by the Orange County Fire Authority prior to January 1, 2008, but Yellowstone must provide evidence that such fire clearances were, in fact, granted. To date, Yellowstone has provided evidence of only one completed fire clearance.) . Yellowstone requests that the City apply all building, zoning, fire and life safety codes to each of its houses in the same manner as those code provisions are applied to single housekeeping units or single family uses. (The request to apply zoning code provisions as if the Yellowstone facilities were a single housekeeping unit is a restatement of Yellowstone's previous request to be treated as a single housekeeping unit. The remainder of the request is a new request, which was not raised before the Hearing Officer.) • Yellowstone requests waiver of the occupancy limitation of two per bedroom plus one staff member to determine maximum occupancy per house.' (Staff considers this a restatement of a previous request.) As noted above, some of the requests listed in the November 27 letter are new requests rather than amendments. Some are restatements of previous requests. Staff believes the issue of Yellowstone's fire clearances from the Orange County Fire Authority is properly characterized as a factual dispute rather than an accommodation request. The first request (to be granted an accommodation to remain in operation with 12 residents per facility), however, could arguably be considered an amendment of a previous request because it reflects Yellowstone's general intent to request an accommodation that would allow it to continue operation at its current locations. ' The NBMC operational standards for use permits set forth in Section 20.91X050 require a maximum of • two residents per bedroom plus one additional resident. Staff is not considered under the NBMC. Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 Page 3 ISSUES: On appeal of a decision of a Hearing Officer, can the City Council hear and consider new or amended requests when the specific request was not submitted to the Hearing Officer, but evidence was presented at the evidentiary hearing that (1) raises the issue addressed in the request, and (2) would allow the City Council to determine whether findings could have been made to grant or deny the request? • On appeal of a decision of a Hearing Officer, should the City Council hear and consider new or amended requests when the specific request was not submitted to the Hearing Officer, and there was no evidence presented at the evidentiary hearing that raised the issue addressed in the request? RECOMMENDATIONS: The NBMC states that on appeal from a reasonable accommodation request or use permit, the City Council "shall determine whether the findings made by the Hearing Officer are supported by substantial evidence presented during the evidentiary hearing,° and may "sustain, reverse or modify the decision of the Hearing Officer," or remand the matter to the Hearing Officer for further consideration, which remand shall include specific issues to be considered or direction for a de novo hearing. See NBMC §§ 20.98.025A and 20.91A.040. Staff recommends the City Council: 1. Review the administrative record, including material submitted by the applicant and the public, analysis in the staff reports for the public hearings, the Hearing Officer's resolutions, and the transcripts of the hearings in light of the new and amended requests; and 2. Consider whether substantial evidence presented during the evidentiary hearing before the Hearing Officer supports a determination that findings required to grant a reasonable accommodation for any or all of the Yellowstone facilities to continue operation at their current locations can be made; 3. Consider whether substantial evidence presented during the evidentiary hearing before the Hearing Officer supports a determination that findings required to grant a reasonable accommodation applying all building, zoning, fire and life safety codes in the same manner as the City would apply those codes to single housekeeping units can be made; 4. For restated prior requests on which the Hearing Officer has already made a determination, including the appellant's restated requests to treat Yellowstone facilities as single housekeeping units and to waive the use permit operational condition limiting residential care facilities to two residents per bedroom plus one additional resident, deny the appeals filed by Yellowstone, and uphold and affirm the Hearing Officer's decisions to deny Reasonable Accommodation No.'s 2009 -004, 2009 -005, 2009.006 and 2009- 007. iDISCUSSION: Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 • Page 4 The City Council May Consider All Evidence Presented During the Evidentiary Hearing and Sustain, Reverse, or Modify the Hearing Officer's Decision. The City Council does not have jurisdiction over the Hearing Officer's decision until he has rendered a final decision on either a use permit or reasonable accommodation request. In the context of an administrative hearing, a "final decision" is one that completely disposes of all issues between the parties, and the Hearing Officer contemplates no further action on the subject matter of his ruling. (See e.g., Griset Y. FPPC (2001) 25 CalAth 688, 700 (when court's ruling disposed of all causes of action framed by the pleadings, there remained no further substantive issues for future determination).) On appeal, the City Council's review of the Hearing Officer's final decision is limited to evidence (i.e., facts) contained in the administrative record. The NBMC does not allow for the admission of extra- record evidence on appeal, nor may the City Council undertake a de novo review of the facts presented at that hearing. (See NBMC §§ 20.98.025A and 20.91A.040.) As a practical matter, 9 the evidence does not appear in the administrative record, it does not exist for purposes of the appeal. (See e.g., Eureka Citizens for Responsible Gov't v. City of Eureka, (2007) 147 Cal.AppAth 357, 367 (finding extra - record evidence allowed only if unavailable at trial or improperly excluded).) Moreover, the Council may only "sustain, reverse or modify" the Hearing Officer's decisions; the Municipal Code does not permit the Council to decide issues for the first time on appeal. The Council may neither substitute its views for those of the Hearing Officer, nor reweigh • conflicting evidence presented to him. The Hearing Officer's decisions are given substantial deference on appeal. (See Sierra Club v. County of Napa (2004) 121 Cai.App.4th 1490, 1497.) Accordingly, to the extent the November 27 letter addresses claims or theories raised below that are based on evidence presented at the evidentiary hearing, the City Council may "sustain, reverse or modify' the Hearing Officer's decision regarding those claims or theories. (See e.g., Hoffman -Haag v. Transamerica Ins. Co. (1991) 1 Cal.AppAth 10, 15 (noting on appeal a party may change the legal theory he relied upon at trial, so long as the new theory presents a question of law to be applied to undisputed facts in the record).) Alternatively, to the extent the November 27 letter raises novel claims or theories based on facts not presented at the evidentiary hearing, the Municipal Code gives the Council no authority to admit the new facts, or to decide new claims. This follows the general rule that a party on appeal must stick with the case it tried. (See e.g., Cable Connection, Inc. v. DIREC7V, Inc. (2008) 44 CalAth 1334, 1350 n.8 (`The rule is well settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.") (internal citations omitted). It is however, within the Council's discretion to remand the matter to the Hearing Officer for further consideration or to obtain additional evidence on an issue. (See NBMC §§ 20.98.025A and 20.91A.040.) Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 Page 5 if. There is Substantial Evidence in the Administrative Record that Supports the Hearing Officer's Decision to Deny the Reasonable Accomodation Request to Treat Yellowstone's Clients as a "Single Housekeeping Unit" Under the substantial evidence test, the Council shall determine whether the Hearing Officer's findings are supported by substantial evidence, and may "sustain, reverse or modify" that decision.' The Council may also remand the matter for further consideration, which remand shall include spec issues to be considered or a direction for a de novo hearing. See NBMC § §20.98.025(A) and 20.91A.040. The party seeking review (in this case, Yellowstone) bears the burden of showing that the Hearing Officer's decisions are not supported by substantial evidence in the record and the City Council "must resolve reasonable doubts in favor of the administrative findings and determination." (See Sierra Club v. County of Napa (2004) 121 Cai.AppAth 1490, 1497.) Yellowstone contends the findings required for granting the requested accommodations could have been made. The November 27 letter notes that two of the Yellowstone facilities hold Oxford House charters, and argues extensively about how Oxford Houses in general function as single housekeeping units. The issue of whether Yellowstone residents actually resided as a single housekeeping unit was discussed in the February 20 and March 12 staff reports, and at the March 12, 2009 public hearing. Some of the arguments contained in the November 27 letter cite facts inconsistent with evidence in the administrative record, including Yellowstone's own written and verbal statements to staff. The Hearing Officer had an opportunity to review the applicant's sometimes - conflicting submissions and testimony, weigh the evidence, and make a determination of whether Yellowstone's residents actually resided as a single housekeeping unit. The evidence before the Hearing Officer included evidence that two of the Yellowstone facilities held Oxford House charters at the time of the hearing. (HR, YS 00170, 00666, 00715)' The Hearing Officer also had an opportunity to review the evidence in the record and submitted upon direct testimony, and determine whether treating Yellowstone's residents as a single housekeeping unit was reasonable and necessary. As shown in the Resolutions of Denial of Yellowstone's Request No. 1, the Hearing Officer determined that it was not. III, Substantial Evidence in the Administrative Record Supports a Determination to Deny a Reasonable Accommodation Granting an Exemption from the Use Permit Occupancy Limits of Two Residents per Bedroom Plus One Additional Resident The Hearing Officer did not make a determination on this issue, because the occupancy limit was a use permit requirement. As Yellowstone's use permit applications were denied, the occupancy limit was considered a moot issue at the reasonable accommodation public hearing 2 °Substantial evidence" means evidence of a "ponderable legal significance ... reasonable in nature, credible, of solid value, and relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Young v. Gannon (2002) 97 Cal.AppAth 209, 221, 9 Each page of the Hearing Record is numbered consecutively, beginning with HR, YS 00001. This means "Hearing Record, Yellowstone, Bates No, 00001." Yellowstone Women's First Step House, Inc. — Amended RA Requests December 2, 2009 Page 6 on March 12, 2009, and the Hearing Officer did not made a determination or resolution in relation to it, In relation to Yellowstone's November 27'" request for an accommodation that allows it to continue operating its four facilities with 12 residents in each home, and an accommodation waiving application of the NBMC's use permit occupancy limit of two residents per bedroom plus one additional resident, a waiver of the use permit occupancy limit is not necessary for three of the facilities to operate at the population level requested. The November 27 letter requests a population of 12 residents at each facility. With the exception of the five- bedroom 1561 Indus, all Yellowstone facilities have six bedrooms. (HR, YS 00022, 00290, 00561, 00838) This allows three of the facilities to house more than the requested number of residents without exceeding the occupancy limits required for use permits issued under NBMC Section 20.91A.050. IV. The Hearing Officer Effectively Considered the Issue of Whether Yellowstone Required a Reasonable Accommodation to Continue Operations at Its Current Facilities Although Yellowstone did not specifically request a reasonable accommodation that allowed it to remain in operation at its current locations, it did request use permits to continue its current operations. Within the context of the evidentiary hearing on Yellowstone's use permit applications, the Hearing Officer considered evidence relevant to this request. Staff recommends the City Council review staffs February 20 recommendations and findings in • the four February 20, 2009 use permit staff reports. In the February 20, 2009 use permit staff reports, prepared prior to the City's discovery that the Yellowstone facilities were not legally established, staff stated findings could be made to grant use permits to two of Yellowstone's facilities, with a reduced population at each facility and operating conditions placed on each to mitigate negative secondary impacts on neighboring properties. In the February 20, 2009 staff report, staff recommended the use permits be granted to 1621 Indus and 20172 Redlands because those two facilities were the farthest apart of the four facilities, and therefore created the greatest dispersal. IV. Yellowstone Raised the Fire Code and Life -safety Issues at the Evidentiary Hearing, but There Is No Evidence In the Record to Support a Finding That an Accommodation Can be Granted Allowing its Facilities to be Treated as Single Housekeeping Units for Building Code purposes During the application process and at public hearings, Yellowstone addressed Building Code, fire, and life safety issues only in the context of asserting that they held valid fire clearances from the Orange County Fire Authority. At no time did Yellowstone assert in the administrative record that fire clearances should be waived, or that California Building Code requirements for single - family uses should be applied to its residential care uses. Therefore, Yellowstone did raise issues regarding Building Code, and fire and life -safety at the evidentlary hearing, but failed to adduce sufficient evidence to support the new reasonable accommodation request. Regarding fire clearances, Yellowstone was unable to produce valid documentation. from the Orange County Fire Authority for any of its facilities other than 1571 E Yellowstone Women's First Step House, Inc. — Amended RA Requests Decem,ber 2, 2009 Page 7 Pegasus. There is no evidence in the record that the City should apply Building Code requirements to Yellowstone as if its residents were a single housekeeping unit. CONCLUSIONS: Staff concludes that the City Council may properly review the evidence in the record and "sustain, reverse or modify' the Hearing Officers decision regarding the question of whether a reasonable accommodation is both necessary and reasonable to allow all or any of the Yellowstone facilities to continue operation at their current location, with 12 resident clients per facility. Staff concludes Yellowstone failed to adduce sufficient fads at the evidentiary hearing to support its claim on appeal that the City should grant a reasonable accommodation applying the California Building Code requirements for single - family occupancies to its facilities. Staff submits this issue was raised below, but there are no facts in the record that would support the Council's action to 'sustain, reverse or modify' the Hearing Officer's decision on appeal. Staff recommends that, as to the restated requests to treat Yellowstone facilities as single housekeeping units and to waive the use permit occupancy limit, the City Council deny the appeals submitted by Yellowstone, sustaining and affirming the Hearing Officers decisions, and direct staff to prepare resolutions for adoption at the next City Council meeting. • If the City Council identifies evidence in the administrative record that allows it to make a finding in favor of an accommodation that permits Yellowstone to remain in operation at all or any of its facilities, staff recommends that the City Council direct staff to prepare resolutions reflecting its findings for adoption at the next City Council meeting. n STEVEN G. POLSN, ESQ. Attorney At Law SENT VIA ELECTRONIC MEAN David Hunt, Esquire City Attorney City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Iola Dear Mr. Hunt, 3034 TENNVsoN ST. N.W. WASHINGTON, D.C. 20015 TFL(202) 331 -5848 Fax (202) 537 -2986 $POLIN2@EARTaLrNK.NEr November 27, 2009 Appeal of Yellowstone Women's First Step House, Inc. RA 09- 004 -007 On November 25, 2009 (the night before Thanksgiving), counsel for Yellowstone Women's First Step House, Inc.(hereinafter "Yellowstone ") was served with the City of Newport • Beach's staff report to the City Council in reference to the appeal mentioned above. Catherine Wolcott of your staff emailed me at approximately 7:46 p.m. (e.s.t.) to advise me that the reports and attachments were available for downloading at the City of Newport Beach's website. Please be advised that Yellowstone is hereby amending its request for a reasonable accommodation as follows: • Yellowstone is requesting areasonable accommodation that will allow it to maintain a maximum occupancy of 12 residents at 1561 Indus Street, 1621 Indus Street; 1571 Pegasus Street; 20172 Redlands Drive, plus a live in manager for 1621 Indus Street and 20172 Redlands Drive. 1561 Indus and 1571 Pegasus are chartered as Oxford Houses and in accordance with the Oxford House model, the house is democratically run, financially self - supported, and immediately expels any resident that relapse. The democratic aspect of an Oxford House prohibits the use of a house manager as the residents make all the decisions relating to the household, including the filling of vacancies. • Yellowstone is requesting as a reasonable accommodation that the City will treat each of houses of its as a "single housekeeping unit" by waiving the requirement that all of the residents be on a single lease as required in the definition of that term in NBMC §20.03.030. • Yellowstone is requesting that the City apply all building, zoning, fire and life safety codes to each of houses (other than those codes that are applicable to state licensed six and under residential treatment facilities) in the same manner those code provisions are applied to either "single E 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 teaming 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 fimctioning as a single housekeeping unit. The residents ofthe 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 orhow 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 orhalfway -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 2Also, See Oxford House, Inc., el 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 ofAuduhon, 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 Far Housing Act, and that the residents drug and/or alcohol addictions did substantially impair one or more of their major life activities. r � L� iDavid Hutt, 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 fatal 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 runt 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 C `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.'); Sharpvisionr, Inc, v. Borough ofPlum, 475 F. Supp. 2d 514, 526 (W.D. Pa. 2007) (holding that request for accommodation to definition of "family" was necessary for a resident "to enjoy the housing of his or her choice"). Yellowstone' requested accommodations, to allow 12 residents plus a live in manager at the two non Oxford Houses and 12 at the Oxford Houses, is necessary to afford the disabled residents ofthe 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 of recovery 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 requestedaccommodations 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 find ... to support group homes for recovering substance abusers[.]" 42 U.S.C. § 300x- 25(a).(loans for sober housing bated on the r J 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 73 7, 749 (7th Cir. 2006) (en banc) ( "[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 Cir_ 2002) ( "[I1f 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 of N. Hempstead, 175 F.3d 144, 152 (2d Cir. 1999) (explaining that the relevant inquiry is whether "the non - complying features of the proposed residence are' necessary' in light ofthe disabilities of proposed residents "); Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. Wis. 2002)(An accommodation is "necessary" if it will "affirmatively enhance a disabled plaintiffs quality of life by ameliorating the effects of the disability. ") See also, Developmental Servs. ofNeb. v. City of Lincoln, 504 F. Supp. 2d 714, 723 (D. Neb. 2007) and New Hope Fellowship, Inc. v. City of Omaha, 2005 U.S. Dist. LEXIS 39174 (D. Neb. 2005). Without the required accommodation residents of Yellowstone will be denied the equal opportunity to live in a residential neighborhood." Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d at 784 (citations omitted). In addition, a minimum 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 ofthe Yellowstoneprogtam 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 ofJeferson °, 234 Fad 192,206 (5th Cir. 2000). The fact that the Glendora Oxford House concept). "The purpose of the fund is to make loans for the costs of establishing programs for the provision of housing in which individuals recovering from alcohol or drug abuse may reside in groups of not less than 6 individuals," and these group homes must operate under rules similar to the niles 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: "In addition to the commercial aspect of purchasing the home, it must be noted that the granting of reasonable accommodations to Alzheimer's group homes and other homes for disabled individuals also affects the commercial viability of care organizations like Groome Resources. The district court found that the zoning ordinance, with its • • David Hunt, Esquire Page 7 November 27, 2009 is home is a business should not be the basis for denying an accommodation when reasonable and necessary. Avalon Residential Care Homes, Inc. v. City of Dallas, 130 F. Supp. 2d 833, 841 (N.D. Tex. 2000))5. Yellowstone' requests for a reasonable accommodation is reasonable and necessary based on its need to pay normal household expenses as well as its business and operational expenses. For the reasons stated above, it is requested that the City Council find that there does not exist substantial evidence to support the findings of the hearing officer. It is further requested that the City Council approve Yellowstone's modified requests for a reasonable accommodation. cc: Christopher $rancart Yellowstone Properties, LLC Patrick $obko 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, Lid 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 EM 1096, 1105 (3d Cir. 1996); Smith & Lee Assocs., Inc. v City of Taylor, Mich., 13 F.3d 920, 931 (6th Cir. 1993).