HomeMy WebLinkAbout09 - Hearing TranscriptGroup Residential Use Permit Hearing Transcript
(1115 West Balboa)
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CERTIFIED COPY
PUBLIC HEARING ON
OCEAN RECOVERY, LLC
BEFORE THOMAS W. ALLEN, ESQ., HEARING OFFICER
NEWPORT BEACH, CALIFORNIA
THURSDAY, FEBRUARY 12, 2009
PRIEC ISE
REPORTING SERVICE
(714) 647-9099 • (800) 647-9099 • FAX (714) 543-1614
www.precisereporting.com
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PUBLIC HEARING - 2/12/2009
Public hearing was taken on behalf of
the City of Newport Beach at 3300 Newport Boulevard,
Newport Beach, California, beginning at 4:00 p.m., and
ending at 6:25 p.m., on Thursday, February 12, 2009,
'before LAURA A. MILLSAP, RPR, Certified Shorthand
Reporter No. 9266.
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PUBLIC HEARING - 2/12/2009
( APPEARANCES:
For The City of Newport Beach:
RICHARDS, WATSON, GERSHON
BY: PATRICK K. BOBKO, ESQ.
355 S. Grand Avenue, 40th Floor
Los Angeles, CA 90071 -3101
(213) 626 -8484
CITY OF NEWPORT BEACH
BY: DAVE KIFF, Assistant City Manager
DEBBIE LINN, Associate Planner
JANET BROWN, Associate Planner
NOELANI MIDDENWAY, Assistant City Clerk
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
(949) 644 -3002
For Ocean Recovery, LLC:
SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP
BY: SEAN P. O'CONNOR, ESQ.
650 Town Center Drive, 4th Floor
Costa Mesa, CA 92626 -1993
(714) 513 -5100
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PUBLIC HEARING - 2/12/2009
NEWPORT BEACH, CALIFORNIA; THURSDAY,. FEBRUARY 12, 2009
4:00 P.M. - 6:25 P.M.
MR. ALLEN: All right. We'll open up the
hearings for today, Thursday, February 12th. I'm Thomas
W. Allen, the Hearing Examiner appointed by the City to
conduct these hearings.
We have two items on the agenda today. First
item is 1601 West Balboa Boulevard, Ocean Recovery. Does
everyone per chance have their cell phones turned off?
We'll go on a normal course here, where the
staff will do a report, there may be questions, and then
we'll open up the public hearing and give the public an
opportunity to present their views.
So with respect to 1601, do we have a staff
report, please?
MS. LINN: Yes. This item is a request for
approval of the use permit for the continued operation of
a residential care facility at 1601 West Balboa
Boulevard, use permit number 2008 -031.
The application is for the continued use of a
four -unit residential building at the subject address
with a total of 10 bedrooms and 16 beds. The facility is
licensed for 16 beds, and they currently occupy the total
16 beds, meaning they are ADP licensed. They have on
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PUBLIC HEARING - 2/12/2009
site -- the facility has four off - street parking garages,
and the operations of the facility are summarized in your
staff report.
Staff is recommending approval of this use
permit subject to a number of conditions being included
that would assure that their operations are in a manner
that are compatible with the surrounding neighborhood.
One significant condition of which includes the
reduction of their bed count from 16 to 14 in order to
accommodate -- better accommodate parking on the facility
and also to address some of the concerns that may have
arisen due to the public comments that are also
summarized in your staff report.
We have received additional public comments
that were e- mailed to the City on the 11th, yesterday,
and they are also, I believe, on the desk for you and
included in a package at the counter.
Based on the conditions of approval, staff is
recommending approval of the subject application. The
Hearing Officer -- we believe all the findings can be met
if the conditions of approval are included.
As an alternative, the Hearing Officer may also
determine that the application should be continued or
denied. And staff is requesting that the Hearing Officer
direct staff to return with a Resolution of Approval for
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PUBLIC HEARING - 2/12/2009
the project, subject to the conditions listed in your
staff report.
And that concludes our presentation, if you
have any questions on this matter.
MR. ALLEN: I don't have any questions at the
moment. Is the Applicant here and wish to make a
presentation?
MR. MC CLOSKEY: Sure. My name is Jim
McCloskey with Ocean Recovery. And I guess I'd like to
start off by saying that, first of all, both of our
facilities are licensed facilities, and I know we're only
talking with 1601 here, but the person that's in charge
or manager has a Master level education and has been in
the counseling for -- in.this field for about 25 years.
We, again, as I mentioned, are a licensed
facility. We started very, very small. We started with
two clients. we've grown up into where we are today. So
our theory was, we grew very, very small with no
mistakes, and that's how we're able to grow to the size
that we are today.
You know, to my knowledge at 1601, we haven't
had any complaints by the surrounding neighborhood. I
don't know if that's accurate or not, but to my
knowledge, there hasn't been any -- there was some
concerns about the parking, which we've already addressed
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PUBLIC HEARING - 2/12/2009
the parking, and we've taken care of it. we've converted
it back to a parking garage.
That's about all I can really say about 1601,
unless there's anything else you'd like for me to go
into.
MR. ALLEN: How many spaces had to be converted
back?
MR. MC CLOSKEY: I believe three? Or was it
four?
MS. LINN: Four.
MR. ALLEN: Four?
ICI MR. MC CLOSKEY: I'm sorry. There's only three
there, I believe. And there's four at the other.
MR. KIFF: Our staff report indicates that
Ithere's four, so --
MR. MC CLOSKEY: There is four.
MR. KIFF: Okay.
MR. ALLEN: Do you believe you're able to
operate successfully given the constraints of the
conditions that are proposed by the staff?
MR. MC CLOSKEY: Yeah, I think we can operate
at 14, and I think we can manage it correctly, yes.
MR. ALLEN: All right. Let's open the public
hearing, then, and see if -- the Applicant -- excuse me.
Go ahead.
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PUBLIC HEARING - 2/12/2009
MR. O'CONNOR: I apologize for interrupting.
I'm Sean O'Conner. I'm an attorney at the Law Firm of
Sheppard, Mullin, Richter & Hampton. And I represent
Ocean Recovery.
And I'm going to let Mr. McCloskey do most of
the speaking, and I'll save most of my comments for the
application on 1115. I did want to address just a couple
of conditions that are part of the application for 1601.
As Mr. McCloskey stated, we probably could
operate with a suggested condition of a reduction in bed
count to 14. we do believe that a bed count of 16 would
be more appropriate. That's what it's currently licensed
for by the ADP. Indeed, we have 10 bedrooms at this
facility. So there is room for more than the currently
licensed 16 already. So we think that 16 would be a
reasonable number.
We also have concerns, Mr. Allen, regarding
proposed condition number seven. That is to do with the
smoking. And to my knowledge, there have been no
complaints about secondhand smoke as to this particular
facility. There's a different issue with the 1115.
We'll get to that in a bit. But there have been no
complaints regarding smoking -- secondhand smoke as to
1601. Yet, the condition for 1601 is just as onerous as
is the case for 1115.
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PUBLIC HEARING - 2/12/2009
And what that condition requires in part is
that smoking outdoors is prohibited. I've done a little
research on this, and I'm aware of no other property in
the entire City that has been subjected to such an
onerous condition that says to the property owner, "You
cannot even smoke on your own property."
We'd be willing to work with the City to find a
solution that would control secondhand smoke to the
extent that it is an issue here. Again, there has been
no evidence to suggest that is an issue at this
particular property. So that condition as worded is
problematic to us.
Lastly -- and this is something I think could
be revised rather easily -- condition number 26, which
has to do with the requiring of a new amendment or,
excuse me, a new use permit or an amendment to the use
permit if there is, among other things, a change on
on -site staffing.
Carried to its logical extreme, what that could
mean is that if we merely lose one employee and hire
another employee, we would have to come back down here to
the City for either an amendment to the use permit or an
entirely new use permit. I don't think that's the intent
of this condition, but that's the way that it's read
legally.
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PUBLIC HEARING - 2/12/2009
MR. ALLEN: Thank you.
MR. O'CONNOR: We'd be happy to respond to any
questions either now or after public comment.
MR. ALLEN: Thank you. Maybe we should give
staff --
MR. KIFF: Maybe, Sean or Jim, if you could
stay up by the podium and address -- I think on condition
26, you're right. It's not our intent to say that if
Mary replaces Joe, that that's an approval.
I think it's a change in on -site staffing that
would either reduce the management capability -- the
on -site management capability and supervision that would
cause a concern to us in the neighborhood, that we would
want that to come back.
So it wouldn't necessarily mean a change in the
persons or even positions, but just so we knew that same
expertise was on staff and stayed on staff. That's fine.
That wouldn't need to come back, if that's clear.
Or a change, say, in addition of several staff
members that would impact the parking in the area so
significantly that it's not the same use that we envision
today. So if that context is acceptable to you, that's
acceptable to us.
On smoking, I don't know if maybe -- I realize
this is a little bit small scale, but I think the biggest
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PUBLIC HEARING - 2/12/2009
concern the City would have is if -- I'm sure my
batteries always die when I need this -- if smoking
occurs such that it impacts the neighbor on the left or
the neighbor behind that -- now the winds do generally go
in across the street, but I'd be interested to know what
the outside smoking area is now for 1601. Is it -- or
when folks need to smoke, where do they go?
MR. MC CLOSKEY: It is a designated area that's
actually out on the patio incorporated up against the
wall. So if it's an L shape, they are actually back
against the bottom of the L of the L shape.
MR. KIFF: Okay. So they are closer to Ocean
Front alley and 16th?
MR. MC CLOSKEY: Correct.
MR. KIFF: So I guess our thinking would be if
there's a way that that stays in the smoking area -- and
you're right, we haven't had specific complaints. It's
not to say we wouldn't from this facility -- but that
there be an opportunity to install maybe some plexiglas
or some type of area that at least funnels the smoke up
instead of straight across into the neighbor's window.
Our intent was not to literally prohibit it if
it's not prohibited to any typical residence. But that
there be some accommodation made to try and keep the
smoke from getting into the neighbor's windows.
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PUBLIC HEARING - 2/12/2009
MR. MC CLOSKEY: I guess that is something that
we can examine. The only issue -- I think especially in
that location we haven't had a problem with that. And
really, if it funnels anywhere, it funnels into the alley
or 16th Street area. So I don't know where we would
redirect it to.
MR. KIFF: Well, maybe when we come back, if
this is the course that we take, we would wordsmith that
condition. Because I think the "prohibition" word is,
indeed, too strong. It should be limited so that it's
literally in the terms of the Ordinance, so that the
neighboring properties aren't affected by it. So that's
our goal. And if that's our goal, there are probably a
variety of paths to get there.
MR. O'CONNOR: Mr. Allen, with those
clarifications -- thank you, Mr. Kiff, by the way -- we
are fine with the condition number 26 with that
clarification. And similarly, condition number 7, it
seems like we will be able to work something out
concerning the concern on smoke.
MR. ALLEN: All right. Thank you.
So you're satisfied with being able to leave
the conditions the way they are, given staff's
interpretations that you'll --
MR. MC CLOSKEY: Work together to --
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PUBLIC HEARING - 2/12/2009
MR. ALLEN: -- work with them, recognizing this
condition will be there, and you could ultimately be
required to comply with it precisely?
MR. KIFF: Well, with the clarification,
Mr. Allen, I do think there needs to be a wordsmithing on
Iboth 7 and 26 to make it the way I interpreted it three
minutes ago. So we will -- I think the wording will
change when you see it next, if that's, indeed, the path
this takes.
MR. O'CONNOR: And Mr. Allen, to directly
address your question, the short answer is yes. We would
be agreeable to this. That's not to say that these
conditions are not onerous, and it's not to say --
MR. ALLEN: Right.
MR. O'CONNOR: -- we don't have problems with
them, and I'll probably address this more as it relates
to 1115.
Indeed, we do question the legality of the
Ordinance in the entire process we're going through. But
our attitude today is the same as it's been the last 12
months. We are working to find a cooperative solution to
a difficult problem that's been presented here. And we
would like to do so today.
So with that mindset, we would be agreeable to
those conditions as clarified by Mr. Kiff.
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PUBLIC HEARING - 2/12/2009
MR. ALLEN: Does anyone have the Ordinance
language right up there? I'm trying to bring it up here,
and it will take me a moment, I know.
But does it essentially say that smoke shall be
controlled in such a fashion that it does not disbursed
or is not detectable on neighboring properties? Is that
what the Ordinance says?
MR. KIFF: That's what it generally says, and I
will put it up with you here.
We're not getting Internet connection. You
might, Mr. Allen, if you wanted to start the public
comment, we can come back and revisit this as I try to
get back on the Internet. If worse comes to worse, I'll
run to my office.
MR. ALLEN: I have it here, but I'll have to
find --
MR. KIFF: Okay. I can find it if you're
logged on.
MS. BROWN: It's Item A, 2091050, Item A.
MR. ALLEN: 050?
MS. BROWN: Yes.
MR. ALLEN: Okay. "No staff, et cetera, may
smoke in an area from which the secondhand smoke may be
detected on any parcel other than the parcel on which the
facility is located."
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PUBLIC HEARING - 2/12/2009
So that's even more rigid. If it's detected on
adjacent property, it's a violation. That certainly does
take care it of it from an enforcement point of view if
complaints are received.
MR. KIFF: That's why I think the goal of the
Ordinance, Mr. Allen, was to encourage or discourage the
concept of 12 or 14 or 10 people all gathering in the
same area and smoking at the same time;
That if somebody wants to smoke, they -- maybe
they take a walk. Maybe it's one person. Obviously the
preference is that folks get on maybe a smoking cessation
program. I realize that can be unreasonable in many
cases.
But I think you'll hear from -- consistently,
and we heard consistently last year as this Ordinance was
being developed, that this is a key problem is a whole
group of people all sitting around smoking, and it just
overwhelms the neighborhood. And I think more so than a
typical single - family use. Even a family with one or two
smokers is different than a household with 10 or 12.
MR. O'CONNOR: A suggestion only, Mr. Allen.
There are some provisions in place as it relates to the
Sober Living agreement that address secondhand smoke that
looked to be reasonable and looked to address the
concerns of secondhand smoke. I have the language here,
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PUBLIC HEARING - 2/12/2009
if you're interested in it. But it's also in the actual
zoning agreement as well.
MR. ALLEN: Okay. That's a thought then, as
far as wordsmithing that Mr. Kiff was suggesting.
All right. Let's open the public, or does
staff have anything else first?
MR. KIFF: No, sir.
MR. ALLEN: Let's open the public hearing,
then, and please come forward and give us your wisdom.
MR. LOPEZ: Mr. Allen and Mr. Kiff, Paul Lopez,
1125 1/2 West Balboa Boulevard, next door neighbor of
1115 but commenting on 1601.
I'm going to give Dave here a final package of
accumulating information gathered by local residents.
And I stress that people on the Peninsula have 144
signatures here opposing both 1601 and 1115.
I've got two additional opposition letters that
were generated that will refer back to 1115, and
miscellaneous communications with Dave Kiff, as well as
pictures, of which I was and have been for the last three
weeks been trying to coordinate with Mr. Kiff and never
got confirmation that I could use these pictures here at
the meeting.
MR. KIFF: You received it twice, Mr. Lopez,
last night and about three weeks ago. You're welcome to
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PUBLIC HEARING - 2/12/2009
use them at the meeting.
MR. LOPEZ: Okay. I did not get that
communication.
So as it relates to 1601, I would like to
comment. In talking with several residents, or whatever,
the confusion that's been created a little bit by the
moving of dates here. So I do look -- as I look out in
the audience here, we have some good representation, but
do know for a fact that some folks have not been able to
attend the meeting today.
The 144 signatures and over 13 letters that
have been written by local residents apply to both 1601
and 1115. The key components of that opposition are
1601's location to Newport Elementary, which is less than
1,000 feet. Neighbors have experienced repeated nuisance
problems over the last five years, including secondhand
smoke, profanity, littering and loud noise.
This operation provides undue burden on parking
and traffic, as evidenced by the operator himself in
converting the garages back. This business operation
includes neighbors and families that would be frequenting
the beaches being a little bit intimidated.
And then overconcentration of facilities, which
has really been kind of the key argument that we've been
discussing here over the last few weeks. The City's
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PUBLIC HEARING - 2/12/2009.
already approved 1132 West Balboa. There are three other
facilities that are operating or seeking approval, which
the community has gone on record that feels that all of
these are too close to Newport E1 and the playgrounds.
My understanding of the City Ordinance 2008 -05
states that the City will protect the integrity of the
City's residential areas. And it says that it will
include such impact as changes in residential character,
noise, secondhand smoke, profanity, and lewd speech,
traffic congestion, excessive trash, excessive debris on
surrounding sidewalks.
I believe that the past behavior demonstrates
that this does not meet the spirit of this Ordinance.
Thank you.
MR. ALLEN: Thank you, Mr. Lopez.
Someone else?
MR. MATHENA: I'm Larry Mathena.
I am actually not sure what to say at this
time. Part of the reason I'm not sure is because I've
actually reached a certain point of cynicism, especially
after seeing, for instance, in the case of the Kramer
Center where you're on the cusp of actually issuing an
appropriate finding and simply quit, which, in fact, was
my real problem with that opportunity. And I see a
similar activity going on now.
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PUBLIC HEARING - 2/12/2009
If I were the Applicant, I'd love the Sober
Living by the Sea standard. It's got nothing to do with
the regulation, and it has no teeth, no explicit
measurement, no -- nothing precise. It's utterly
inappropriate to go from a standard, regulatorily agreed
to, that secondhand smoke shouldn't be detected on any
other parcel to the Sober Living by the Sea standard of,
oh, we'll try hard, especially in a circumstance where
you have a huge amount of evidence, not so much at this
facility.
But my concern is you guys are generating
precedents for the next one. And it's wrong. Follow
your law. In fact, my biggest complaint of the City as a
whole is it doesn't follow the law. And specifically, it
doesn't follow the law, I think benignly, it's to avoid
being accused of discrimination.
And God knows, I mean, a very nice,
professional, well written threatening legal letter
saying, oh, we could violate ADA, we could violate fair
housing, we could do this, that and the other. And in
fact, the very introduction of this is, we don't agree
with this to begin with.
You folks came in here at every one of these
hearings telling us, "we set up these Ordinances. we set
up these rules," with the understanding and going to the
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effort of saying they comply with the law. Follow your
law. And if not, then admit that you can't.
I think it's pathetically sad that it's
instantly, oh, that sounds reasonable. That's not the
circumstance. You have no right to default of the Sober
Living by the Sea standard. One of the reasons you're in
this situation is because everybody defaulted instead of
thinking through where they should be to begin with.
I could go on. And I guess my punch line
comment is, you've got to talk loud across the street,
you've got a liquor store a block away, and you've got a
large day care facility a block and a half away.
There's a total illogic to this effort that if
your goal was -- your time is fair -- if your goal was
trying to do what's right for the community, which was
Paul's point, you would come to the conclusion that even
this one, which isn't nearly as bad as 1115, shouldn't be
approved.
Thank you.
MR. RUSH: How many minutes?
MR. ALLEN: Three.
MR. RUSH: Three?
Bob Rush, Newport Beach resident.
I'm not here to say anything for or against the
recovery operator. I just want to mention that I spoken
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to Mr. McCloskey a number of times. I find him to be a
generous and sincere individual in his efforts to try to
work with the community. And that's what I'd like to
leave that comment at.
But I did want to come up right now, because I
need some clarification with this report done by staff
planning. I have some problems with it. And I think
that it's pertinent to your decision, since you are
relying on the information they are giving you, and you
are relying on the fact that it's supposedly accurate.
Well, I'll give you a couple of examples of
where I think it's too loose, not accurate, or perhaps
even goes so far to say as intentionally misleading.
Page -- of the 115 -- 1115 West Balboa, page
11, if you look --
MR. ALLEN: We're trying to stick with 1601
right now.
MR. RUSH: I'm sorry. Okay. It's the same
question on both.
MR. ALLEN: Okay.
MR. RUSH: Okay. The author talks about
recovery homes not being proven to be a burden, financial
burden, to the City. Yet, nowhere in these reports does
the author, Ms. Brown, cite where it is normal for a
building to be entirely filled with adults to the point
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of two or three per bedroom.
There's no basis in Newport Beach that is the
norm of having two to three adults per bedroom. There's
no place. Yet, that's not addressed. That's not
discussed. That's critical to her recommendation to you
by saying there's no proof that this is a burden to the
City. So that's one major inaccuracy.
Secondly, she says -- she makes the statement
that the City has determined that an overconcentration
would exist -- the City has determined that an
overconcentration would exist if more than one
residential care facility exists within one block length.
Yet, there's nothing in our municipal code that
says that. There's no determination in our municipal
code that one house per block is -- or more than one
house per block is overconcentrated.
Not only that, but the only real point or only
real place where this "one house per block" comes from is
a singular letter that originated from the previous City
attorney's desk going to the Assistant State Attorney
General's Office asking for a position, in which he cites
an APA survey or study suggesting that one house per
block might a way to determine overconcentration.
But there is such a variation, even within the
Peninsula, that one house per block is a poor standard to
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use. But in our municipal code, which the author of this
report.states, there is no determination.
And the last point I'd like to make -- so I'd
like her to cite where is it's determined in our code
overconcentration is blank.
Secondly, she makes no differentiation between
facility size. She says one facility per block. I mean,
you know, we have a case of a rehab up on Clay and Orange
that has 45 people. And -- so according to the author's
one facility per block guide, that wouldn't be
overconcentrated. Yet, 45 people within a corner, across
from a tot lot or a day care center to me is classic
overconcentration. Narconon is the same, classic
overconcentration, 49 people. Yet --
MR. ALLEN: Your three minutes is up. You can
do it at the next one. We did get the point.
MR. RUSH: Thank you.
MR. ALLEN: Would someone else like to come
forward?
MS. OBERMAN: Good afternoon, Mr. Allen and
staff. Denys Oberman.
I wanted to comment on smoking, and this
comment is pertinent not only to 1601 but also to 1115,
and other facilities.
First of all, relative to smoke, cigarette
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smoke is a legally recognized known carcinogen. And I
think every citizen in this community recognizes the
right of people that are in recovery to smoke if they so
choose. By the same token, by matter of equity, every
citizen in this community that chooses not to smoke has
the right not to breathe cigarette smoke.
And the reason why it is so important to put
that out there is because it's a criteria to consider
when deciding whether to recommend approval or denial of
this facility.
Density needs to be heavily weighted, because
there's a lot of difference between a structure and a
facility, regardless of its size, where 0 to 100 percent
of the people in the facility smoke, where the structure
is 3 to 6 feet, or maybe as much as 8 feet, away from the
adjacent structures, versus the situation where there
isn't that type of structural density, and the structures
are, you know, 200 feet away from one another, which is
characteristic of what many people call standard
subdivisions or other areas.
And we had asked for that consideration to be
written into the Ordinance. We understand it's something
that the Hearing Officer can consider at his discretion.
Secondly, overconcentration . Overconcentration
creates a compounding effect relative to cigarette smoke
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and having to suffer the impacts of it. If there are
more people -- and the people don't just stay in their
house. So breathing secondhand smoke is not just a
consideration when they are sitting interior or exterior
to the residents.
It's also people regularly walking down alleys
behind other neighbors' houses, going by the school,
going on to the beaches and smoking, going to the
sidewalks and alleyways.
So we beg that you consider those things and
you look carefully at the true aspect of
overconcentration of facilities and also the density of
the neighborhood and the surrounding structures.
Thank you.
MR. ALLEN: Anyone else?
All right. We'll close the public -- I see a
person with his finger -- of course, you've already been
up here, so --
(Boulevard.
MR. LOPEZ: Just one second.
THE COURT: You have 30 seconds.
THE WITNESS: Yeah, that's fine.
THE REPORTER: Your name again?
MR. LOPEZ: Paul Lopez, 1125 1/2 West Balboa
I just wanted to correct one comment that the
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operator mentioned in regards to where the folks smoke on
the deck out there. It is an L shaped building, but the
tables and the place where the residents, who are female,
smoke is outside the L. It sits up closer to West Balboa
Boulevard than it does blocked by three walls.
MR. ALLEN: All right. So we'll close the
public hearing. Bring it back to staff.
Do you have any some comments with respect to
some of the public comments that were made?
MR. KIFF: Yes, I do, Mr. Allen. Thank you.
I wanted to address -- I'm going start with Bob
Rush's comments and address a little bit Denys' and talk
about smoking in general.
Because -- actually, I signed the staff report,
too, so some of those statements where I talk about
recovery homes not being a cost burden to the City, they
are literally not.
Remember, a facility like this, at 1601, is
four units and 10 bedrooms. And you -- we have to
imagine, from a regulatory standpoint, that this use
would have four families in there, and potentially two or
three cars per family. This is a use that is being
regulated such that it will have four parking spaces and
not have any opportunity to need that more or use that
more. So that is a little different.
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But the statement that that was trying to
respond to about not being a cost burden was a number of
letters and a -mails that I received saying, well, it
costs more in police, it costs more in fire, it costs
more in trash, it does not. we don't have any more
police calls from recovery facilities than we do from
vacation homes.
And a little bit more both than single family
homes, but if this was an apartment use, we would expect
that same amount of police cars and EMS calls. And
remember, everybody in Newport gets their trash collected
for free. It's within your property tax. So there isn't
that kind of cost burden either. So that's the genesis
of that statement, Bob.
I think there is an impact to the structure
when you are overwhelming the structure with people. And
remember, the bed count that we're proposing is 14 beds
within 10 bedrooms. So this facility is four units, 10
bedrooms, 14 beds. So I think that is actually a less
intense use than you'd see in a single family use.
Bob also talked about the APA standard, and I
think it's a fair thing to discuss. And the APA
standard, American Planning Association standard, was
discussed when this Ordinance was developed. And it is
pretty much the only document we ever found -- and we're
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still happy to look -- that discussed from a planning
perspective, from a professional planning perspective,
what an appropriate number of residential care facility
was in any one block. And they didn't say one use. They
said one or two uses.
And thus, I think you heard Mr. Allen
struggling with trying to decipher that in light of the
Newport Coast Recovery application. Because it does say
one or two uses. And also, it doesn't say that -- it
doesn't count beds in those uses. It doesn't say that a
six -bed facility should be evaluated differently from a
22 -bed facility. So it's left up to the local
jurisdiction to consider.
And what we did was adopt the APA standard as
a guideline, and then say that in cases where blocks are
small, the Hearing Officer can stretch the block out to
an average block length of Newport beach. And I think
Mr. Allen's last discussion of that was roughly 617 feet.
So this facility here at 1601 does not have
another facility in its block, even if you stretched that
block out to 617 feet, which is why we recommended the
approval'.
We recommended the lowering in bed count
because of the parking spaces. And we have a standard in
our code that says one parking space for three beds. So,
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with the Balboa Horizons facility, we set a precedent by
saying if you don't have assembly uses, that potentially
you could get two more beds.
So sure enough, 1601 West Balboa, they agreed
to not have assembly uses. So we did that same ratio,
which would have brought it to 12 beds and added two to
be consistent with Balboa Horizons.
Let me touch briefly on smoking then.
Ms. Oberman brings up an important point. Many
people, including myself personally, are very concerned
about secondhand smoke. We have to treat a recovery
home, though, just as we would treat a typical single
family use. We don't ban smoking on your personal
property. We don't ban smoking in an apartment building
where a couple of folks will get out on the ledge and
smoke.
Now, other communities have banned that. The
City of Belmont, in fact, has. If Newport Beach decides
to take that step, those types of bans would be
applicable to every house in the community, including
recovery homes. And that could change the way many of
the recovery homes operate here.
But the key for me is, we need to treat a
recovery home like we treat another facility. And if
smoking is not banned in an apartment building, we cannot
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ban it in a recovery home. To do so, arguably, is
discriminatory.
That said, I think the Ordinance was strong in
trying -- in saying the secondhand smoke should not leave
the property. we intend to pursue that and to ensure
that at 1601 the secondhand smoke doesn't leave the
property. Now, again, that doesn't stop somebody from
walking off and smoking down the sidewalk, just like the
neighbor could do that as well.
Mr. Lopez and Mr. Mathena brought up a number
of other issues, and I think they were more in tune to
their concerns about 1115, so I'm happy to come back and
have that discussion with them on the next item.
MR. ALLEN: Any other staff comments?
It appears that this secondhand smoke issue in
the Ordinance itself is addressed very strongly by saying
that no person shall smoke in an area where the
secondhand smoke may be detected on any parcel other than
the parcel on which the facility is located.
That's a lot stronger statement than what I
heard was described or done in Sober Living. The
Ordinance itself would supercede these conditions anyway,
in my estimation. So if the residents are able to do the
enforcement and /or get the enforcement done, that's
stronger than the use permit conditions. That's the way
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I would see it, keep in mind.
Okay. One other point, I think the
concentration is not an issue here, but I think it bears
just very brief discussion. And I think my thoughts tie
into what Mr. Kiff was saying and what Ms. Oberman
raised.
That in the instance where we have an Ordinance
on the books that talks about one or two uses per block,
recognizing that that's a large variation, I think the
intent there is to take into account the number of beds.
So that you could have two 10 -bed facilities,
conceivably, in the block, but only one 20 -bed, for
example. And I think that's the kind of flexibility
that's probably intended in that section.
Given the fact that it's probably illegal to
create absolute distancing requirements and impose them
across the board, I'm sure the City thought about that a
great deal in the course of attempting to bring this
Ordinance forth with Constitutional restrictions.
Anyway, I have listened to the testimony. I do
believe that the findings can be met -- have been met.
And so on that basis, my motion is to approve this use,
to request that the staff bring back an Ordinance or, I
mean, a Resolution consistent with the findings that have
been made in this staff report, and bring back a
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PUBLIC HEARING - 2/12/2009
Resolution with the conditions of operation that have
been recommended.
So with that, unless there's anything else?
Let's see. Do we need to set a time to consider that
Resolution?
MR. KIFF: We think we can bring that back to
you -- actually, let us work with you on that and propose
something back. We need to look at calendars and when
you're next going to be here, so --
MR. ALLEN: Okay.
MR. KIFF: Potentially, it could be the next
Friday during the Yellowstone hearings; correct?
MS. LINN: We're short staff.
MR. KIFF: Okay. We'll talk about that.
MR. ALLEN: Fine. All right. Thank you. All
right. So next item on the agenda is 1115 West Balboa
Boulevard.
MR. KIFF: Mr. Allen, would you like me to make
the presentation?
MR. ALLEN: Sure. Let's proceed with the
presentation. You can summarize the situation better
than I can.
MR. KIFF: So staff clearly saw this as a
different circumstance from 1601 for a number of reasons.
We received a great -- well, to me, a significant amount
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of correspondence on this. But it's also in a
neighborhood that does have other group residential uses
in it and nearby, a couple of which, at least one
significantly, at 1129 West Balboa, is scheduled for
abatement in what is, in effect, gosh, 11 days.
So we did hear some -- both some generalized
testimony in opposition to this facility and some very
specific testimony in opposition to this facility_ And
it was the specific concerns that I think weighed most
heavily on staff, because -- I'm going to thumb to a
screen where I was trying to summarize that.
I'm going to start with some of the things that
I don't believe the ordinance allows us to consider in a
denial or an approval. And i say this with great respect
to the people who offered these opinions and who signed
petitions to that effect.
But first one is declining home values.
There's no evidence to suggest that the presence of a
recovery facility is any more impactful on private
property values than changes in the housing market,
certainly, the presence of long -term rental, vacation
rentals, or other non - single family uses. And I think
the data shows that nationwide.
Another concern that -- actually, I'm going to
wobble on this one. Ocean Recovery has continued to
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assert that its residents do not attend a meeting of
Narcotics Anonymous on Saturday at 9:30.
And I emphasize this meeting, because it has
been brought to my attention that the folks who attend
this meeting tend to be more aggressive in potentially
confronting others and certainly in possibly violating
our no smoking on the beach law.
And I have discussed this with Ocean Recovery,
and they have said up and down, "No, we don't send our
folks to this meeting, and they don't go to it."
However, I note that Mr. Lopez has submitted a counter to
that, saying, "Gosh, they sure do go." So maybe we can
discuss that in the public comment.
I mentioned already I don't think it's a fair
consideration within our Ordinance to allege that
recovery homes are a cost burden to the City.
The other thing that I think people, again,
were very sincere in offering was that this facility's
proximity to Newport Elementary School. It is about 740
feet away. And many people wrote me and said, "I can't
believe that the City allows these within a thousand feet
of an elementary school."
I want to stress with you that -- the folks in
the audience that distancing from public uses, like
elementary schools, has specifically been addressed by
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Courts like the 9th Circuit and have been rejected. And
indeed, in State law, it doesn't allow us to specifically
distance one home from another and not from -- one
recovery home from a use like an elementary school.
So many people assume that the law allows us to
do this. And I would assert that the law does not allow
us to do this, which is why the text of our Ordinance
reads slightly differently. It allows the Hearing
Officer to consider the proximity of the use to schools,
parks and other care facilities, and other uses which
could be affected by or would affect the operation of the
i
subject use.
So what we do, in an analysis on staff's part,
is to decide if this use at 1115 West Balboa could be
affected by its proximity to the school or affects the
operation of the school. And we've seen no evidence on
the record from Newport Elementary at 740, 750, either
way, that affects this use.
And then finally, a concern that we're not able
to consider is a general comment about recovery homes
Citywide out directing specific comments to the operation
of West Balboa. I'm going to move back to things
that -- let's see if I can find that slide.
I think concerns that the Ordinance does allow
us to consider -- and that's allegations made that are
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specific to this property, which, in staff's eyes, might
indicate an inability to manage 1115 in a manner that's
respectful to the neighborhood's peace and quiet and
quiet enjoyment.
And specifically, these are threatening,
confrontational, or age- inappropriate interactions of
clients with neighbors, excessive profanity, especially
when youth are nearby, excessive noise, as well as noise
late at night. And then potentially poor and
inappropriate responses from clients when neighbors
attempt to remedy those interactions by themselves.
Excessive secondhand smoke is something that we
can address. Trash problems, again, is something that we
can address. Curfew violations and what some have
alleged to be an apparent lack of adequate on -site
supervision. So we did receive -- and these are
summarized in the staff report -- some very specific
concerns about this property that I thought warranted our
addressing them.
And the proposal from staff was that we direct
that this use be reviewed in six months and that the bed
count be lowered to 14 beds to see if there was an
opportunity to answer a question in staff's mind is that,
is the proximity to 1129 West Balboa causing a number of
the problems that are attributed by 1115 West Balboa?
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And in fairness to 1115 West Balboa and to this
process, I don't believe staff can make the evaluation
that all of the problems in that block are caused by
1115. So this time period, staff believe, would have
allowed us to take look at the operations without 1129
around and make an evaluation at that time.
So I think those are the comments that I'd make
and maybe welcome your interaction, Mr. Allen, and the
public's interaction from here.
MR. ALLEN: Is there an absolute commitment for
termination of 1129, or is it just subject to abatement?
MR. KIFF: Everything I've been told is that
they intend to close the abatement date, which is
February 22nd. Now, what we have is a process in place
where we will, A, ensure that that occurs, at least
through inspection, or otherwise. And if it doesn't
occur, we have an administrative procedure and a civil
procedure to go through that would cause the abatement.
MR. ALLEN: One thing with respect to this
application. You've already mentioned, Mr. Kiff, there's
been a great deal of correspondence that has come in on
this. And are we able to make provision for referencing
that or otherwise including it in the record?
I think the people that have spent the time to
do the amount of work that they have done deserve to be
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sure that it's in the record for whatever that future
purpose may mean.
MR. KIFF: Yes, we do, Mr. Allen. Anything
that's provided up until the close of the public hearing
becomes part of the record associated with this use
permit, including a -mails and statements and petitions.
And I think I believe I have most, if not all
of that. If there's anything I missed, I know that folks
will remind me of that, including having an opportunity
to say so during the public hearing now.
MR. ALLEN: There's a great deal of
correspondence from Mr. Lopez, and a great deal of
correspondence from Mr. Mathena, and then Mr. Lopez
brought us a great deal more here this afternoon.
As long as it's all in the record so
that -- because I'm thinking in terms of any appeal to
City Council; that the Council would have to look at the
record, and that that would be included. So thank you.
I just want to see if there's any question I
have before we --
MR. KIFF: I note, too, Mr. Allen, that, for
folks in the audience's benefit, these are -- we do have
the Court Reporter here, and these transcript
are -- become a public document. We do post them on the
Web site. So that is part of the public record as well
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that Council would see in any appeal.
MR. ALLEN: How long has 1115 been in
operation?
MR. KIFF: Depends on -- I think that's a
better question for Mr. McCloskey to ask, because it
depends on what you're asking for. In some cases, their
date of licensure as this activity dates
back -- sorry -- dates back to the time at which they
received their ADP license.
Others have suggested that this facility,
before Ocean Recovery was there, operated similarly but
as an unlicensed sober home. So I think that's a better
statement made directly by the Applicant.
At least your question to staff, we believed
it's been in operation since at least 105.
MR. ALLEN: All right. Why don't we proceed,
then, with the Applicant making the presentation here on
this one.
MR. O'CONNOR: Thank you, Mr. Allen. Sean
O'Connor again, and I represent Ocean Recovery. In
addition to representing Ocean Recovery, I'm also a
resident of Newport Beach and have been so for 16 years.
And one of the things I've grown to a
appreciate about this City is the City's attempts to
reach fair solutions to difficult problems. And I think
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that certainly applies to the situation we're dealing
with tonight.
I know that I had a problem five years ago in
regard to a City project. My wife and I called the City.
Staff came out. Listened to our concerns. In fact, it
was Mr. Kiff five years ago. We weren't entirely
satisfied. But, looking back at it, I think we now
recognize that the solution that was presented to us was
a fair one and was a balancing of completing concerns,
and we'd hope that we can find a similar situation
tonight.
We have a difficult situation in our hands, and
I think we recognize that no matter what the City
decides, no one is going to be entirely happy. From our
standpoint, we recognize that group homes are not a
popular use. We also recognize, however, that there is
federal and state law that afford us various protections.
And we also recognize we're providing valuable services
to people in need.
As I mentioned earlier, it has been our choice
not to aggressively fight the City regarding this
Ordinance, even though we have problems with the
Ordinance. I think the City and the City residents
should be thankful for this.
They went out and hired a talented team of
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lawyers to craft this Ordinance. Then, as a lawyer
myself, I looked at that Ordinance, and I see it as a
good piece of lawyering work that does a lot to protect
the concerns of the City residents regarding group homes.
Putting on my hat representing a group home, I
have concerns about that Ordinance, and I think it pushes
the envelope and, indeed, goes too far, But what we're
trying to do tonight, just like we've done over the last
12 months, is see if we can work with the process to see
if we can come up with a cooperative solution. And I
think that staff will tell you that we've adapted that
approach from the very beginning.
I have provided Mr. Kiff and others on the
staff unlimited access to my client, Jim McCloskey, not
to be filtered through me. If Mr. Kiff or anyone else
has a problem or a question that needs to be answered,
they call up Mr. McCloskey, and he gives them a response
right away. We've done our best to work with the City.
We've done our best to work with the neighbors.
I understand that there have been some recent
comments and concerns raised by the neighbors, and we'll
get to that in just a moment. And Mr. McCloskey would
get to that as well. I would note that I submitted a
letter, both one that I prepared yesterday and also a
letter from Karen Knab, K- n -a -b, of Ocean Recovery that
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attempted to address some of those concerns.
we pride ourselves in being a good operator.
And I think even though we have some concerns regarding
the ordinance in this process, to some extent, we also
welcome it, because, as this Ordinance was explained to
us by City staff, the intent was to eliminate the bad
operators. And we were told directly that we're not
viewed as a bad operator. Instead, we are viewed as one
of the good operators, if not the best operator, in the
City.
So to some extent, we welcome that, because we
saw that there were some operators out there that
probably had no business running these types of
operations. We've done other best to be a responsible
operator. Having said that, we'd like to become a better
operator, if possible. And we're happy to accept some of
these proposed conditions to the extent that those will
make us an even better operator.
What I'd like to do right now, however, is just
spend a couple of minutes focusing on some of the
proposed conditions which go way too far in our view. In
fact, as it relates to one of these conditions, it would
put us out of business, and that is the proposed
condition reducing the bed count down to 14 beds.
As I believe you know, Mr. Allen, we are
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currently licensed through the ADP to have a bed count of
22 beds. The proposed condition reducing that bed count
down to 14 is a staggering 36 percent reduction. And in
our view, that is not reasonable. And more importantly,
I think -- and I think Mr. McCloskey will address this a
little more specifically -- that essentially makes a
difference between us being able to remain in business
and putting us out of business.
City staff told us specifically that they don't
want to see us go out of business, but, unfortunately and
regrettably, if this condition is imposed with 14 beds,
it will do just that. It will put us out of business.
So we think that this one condition goes way too far.
Is there some flexibility within 22? Yes,
there is. And we'd be willing to discuss that. But a 36
percent reduction, bringing us from 22 down to 14, is
unreasonable. And I don't think that there's been
evidence that warrants that.
Regarding that evidence -- Mr. McCloskey will
speak to that a bit -- the letter submitted by Ms. Knab
yesterday addressed that a bit. I will note the
following, though, that we have never -- saying it
somewhat differently, this a largely news to us.
And it caught me by surprise and it caught
Mr. McCloskey by surprise to see this level of opposition
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regarding 1115, particularly when you look at 1601, the
facility we just discussed. One letter in opposition,
and really not specifically at the operations.
we run the same type of operation at 1115 as we
do at 1601. So if we were a problem operator, one would
expect to see the same types of problems that have been
alleged as to 1115 for 1601. There haven't been those
types of allegations.
I would also note that the timing is a little
bit curious. I'm certainly not going to accused anyone
in the audience of lying, even though some of those
people have accused my client of lying. Instead, there
may have been some misunderstandings.
It's regrettable that these concerns were not
brought to our attention earlier. It's regrettable that
these concerns have caught us by surprise. Because had
these concerns been brought to our attention in an
earlier time, we would have addressed them. We would
have addressed them promptly.
I think there's some members of the audience
who would recognize that Mr. McCloskey has gone to them
in the past and said, "If you ever have a problem, here's
my cell phone number. Give me a call. I'll get back to
you right away." That's the way we do business.
So it's a little hard for us, and I would add a
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little unfair for us, to have to comment to -- and
address these concerns that have surfaced for the first
time after the City noticed this public hearing.
I would also note, picking up on something that
Mr. Kiff said, as it related to 1601 is that this could
be a situation where, where, with all due respect, I
think that some of the residents need to be careful for
what they asked for.
But as it relates to this particular residence,
alternative uses could be a lot worse than what is there
currently. We currently are licensed for 16, as I
mentioned. Fourteen is way too low, but we would be
willing to consider something lower than 22.
Alternative uses, if this was a rental home, if
that was rented out to vacationers, college students, a
lot more cars, a lot more trash, no regulations regarding
their behavior, no curfew. We have always those things
in place right now. So I believe that we can continue to
provide valuable services to our clients while, at the
same time, being good neighbors.
But as it relates to a couple of the
conditions -- and we also have concerns regarding the
condition on smoking. I would assume that Mr. Kiff's
explanation as related to my concern for 1601 regarding
the condition as related to smoking would be the same as
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it applies here.
And our concern regarding condition number 27,
which was actually condition number 26 for the 1601
property, with those clarifications, we would be
accepting of those two conditions. But again, the
condition that is an absolute not a start for us is
condition number one, which limits us to 14 beds from the
currently licensed 22.
With that, I'm going to turn it over to
Mr. McCloskey, unless you have any questions,
Mr. Allen.
MR. ALLEN: I was wanting one of you to address
this question about -- I believe that there's a condition
limiting or prohibiting the assembly uses at this
location. And I think that's a very significant issue to
be addressed, as well as the ones, of course, that you
are objecting to.
Because that seems to me to be a significant
contributor to the kinds of objections the neighborhood
has, the assemblies of groups of people and their
resulting behavior that's objectionable by the neighbors.
MR. O'CONNOR: That's probably a good segue for
Mr. McCloskey to take the stand. Thank you.
MR. MC CLOSKEY: Again, Jim McCloskey.
I'd like to address that. That's already been
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PUBLIC HEARING - 2/12/2009
addressed. The assemblies are now disbanned. They are
no longer allowed at the facility.
I want to also address the parking. The
parking also there has been addressed. The garages has
been converted back to garages.
I also wanted to emphasize that there's
concerns about our group, as mentioned earlier, that they
go to NA meetings on a specific date. They do not attend
those meetings.
So -- and there was another question you had
about how long we had been in operation. It's roughly
been -- it's hard to say exactly. we've been there for
about five years. It roughly took us about a year to get
licensed. So we've probably been in operation for just
about four years.
MR. ALLEN: Have you had dealings with the City
prior to the commencement of the actions leading up to
the adoption of this Ordinance? Have Code Enforcement or
other similar police been called to that facility at all
or in any intervals, to your knowledge?
MR. MC CLASxEY: To my knowledge, no. I can
tell you the only big issues we did have is when we
initially took over the property, there were several
illegal units. There was -- the amount of people
residing there was -- I would say, I'm guessing, it was
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probably greater than the 22 that we are licensed for
right now.
MR. ALLEN: Was it a recovery facility?
MR. MC CLOSKEY: No, it was a rental unit. So
we would have four to five people in a one - bedroom,
Band -- of which, I believe, are seven; is that correct?
Are seven units, I believe. And there were a bunch of
illegal units there, which he had to convert back to the
conforming use that it is right now.
MR. KIFF: Mr. Allen, if you don't mind it,
I'll ask a question of Mr. McCloskey.
You just stated this a moment ago, but I wanted
to make sure I understood it, because Mr. Lopez in his
e -mail -- let me try to read it to you. I think you saw
this, because I tried to forward it for the record.
"The operator states that the residents from
1115 don't attend weekend NA meetings on the
beach. This is not true. In fact, the
operator himself has provided the City with his
residents' schedules, and they show they
clearly attend.
"Furthermore, as I sit on my deck Saturday
and Sunday mornings, I routinely see residents
leaving the 1115 facility, beach chairs in hand
and yelling back at slow residents to hurry up,
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'We're going to be late for the meeting.' I
have followed these groups on several occasions
and verified that they do attend these meetings
the 15th Street."
So I wanted to just make sure I understood
whether or not you think they have attended in the past
and will stop attending. And I need to -- before you
answer that, it's not illegal for Narcotics Anonymous to
meet on the beach.
It is a big group of people, and I think they
are ignoring our smoking -- no smoking on the beach law.
And I think there is a problem with loitering and
intimidation. But that's not something that is something
that's on your shoulders. It's more on mine. But I did
want to clarify what your thoughts were about your
clients at that meeting.
MR. MC CLOSKEY: Yeah. I'd like to address
that in a couple of ways. One, have our clients ever
attended it? They did. But they have not attended it
for about three years. It was not a good environment for
our clients. We discouraged them from doing -- we
stopped them from doing it.
I brought actually this book here. There are
1800 meetings with AA in Orange County. Just the Alana
Club across the street here, there's 60 per week. You're
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PUBLIC HEARING - 2/12/2009
talking about one meeting. So I'm talking about 60 that
meet one week just right across the street here.
There's almost any hour of any day you can go
to a meeting. Do our clients go the other meetings?
'Yes. Do they go to the Alana Club? Yes, they do. Do
they attend the one on the beach there? No, they do not
attend the one on the beach,
MR. KIFF: Okay.
MR. ALLEN: There seems to be some real
difference of opinion with respect to your residents
having vehicles. I noticed that some of the
communications indicated that a lot of your residents
have vehicles. How does that work with your
organizational plan?
MR. MC CLOSKEY: Yeah. Your clients are not
allowed vehicles at either facility. Is there ever a
case where a client has had one? There was. And I had
to report to Mr. Kiff.
There was a case where a gentleman got stuck.
He was trying to go home_ He had a car that was not
allowed when he was part of our facility. He was stuck
over for a two -week period where he did have a car in our
facility.
But that is the only case that I'm aware of
that a client has ever had a car at our facility, one in
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the five -plus years that we've been in operation there,
or four years, I should say.
MR. ALLEN: Okay. Do you have -- can you
address this smoking issue anymore? It just seems such
an important one, on the one hand, to a lot of people.
And by the same token, the City's Ordinances, again I
say, clearly prohibits smoke from disbursing to abutting
properties that can't be detected.
How can you do that?
MR. MC CLOSKEY: It's a difficult item to
address. All I can tell you is that we're more than
willing to work with Mr. Kiff and do the best that we can
to control that environment and make it work for
everybody.
What the right answer is at this particular
point in time, to be honest, I don't know. But it's
something that we can work towards together to try to
accomplish that goal.
MR. ALLEN: Okay. Thank you.
MR. MC CLOSKEY: Thank you.
MR. ALLEN: Let's go with the public hearing
and get started here and hear the views of the public on
1115.
MR. MYERS: Hello. My name is Jeff Myers,
spelled M- y- e -r -s.
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First thing I'd like to give is, Mr. Kiff, a
copy of the City records. Back on 5- 23 -06, there was an
investigation into 1115, code investigation. "Please
remove accumulated trash and debris from the alley."
Now I'd like to start. I'd like to discuss my
experience with the company Ocean Recovery. They claim
to be a good operator. But in reality, the
representatives have been far less than honest with
myself, my neighbors, City officials, and also the public
in general.
Ocean Recovery is a for - profit company that
cares more about their profit than preserving our
residential neighborhoods. The property at 1115 West
Balboa has been investigated in the past by the City Code
Enforcement for accumulation of trash and debris in the
alley. Yet, they continue to burden the neighbors with
this trash.
The neighbors still complain that, "Their,"
meaning Ocean Recovery, "trash is so bad and overstacked,
that in the summertime, the flies from the trash have
become such a nuisance."
Even the past City attorneys states, "Ocean
Recovery does not appear to be following a pattern of
openness and honestly with either its proposed neighbors
or the City."
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So Ocean Recovery as a history of not playing
by the rules. They have been ordered by the City
Building Department on several occasions, several
occasions, to stop work on modifications of one of their
properties that did not have the proper permits.
In addition to Ocean Recovery's poor civic
responsibility, the 1115 West Balboa location is too
close to the existing approved Balboa Horizons location,
which leads to the overconcentration and detrimental
effects to the families living in the area and the
character of the neighborhood.
In reviewing the City's code requirements that
were up there a few minutes ago that must be considered
for this permit to happen, Ocean Recovery does not meet
eight out of the eleven code requirements for approval.
Given their history of playing games, I respectfully
request that you deny Ocean Recovery this request for a
permit at this location.
Thank you.
MR. MATHENA: Forgive me. This is sitting out
front. But I just want to make absolutely sure, because
it seems like nobody sees the chicken in -- the fox in
the henhouse.
In Ocean Recovery's submittal package, it's 43
of 85 in the PDF, their schedule, point blank, says that
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PUBLIC HEARING - 2/12/2009
at 9:30 on Saturdays, they send people to the NA meeting
on the beach at 15th. Period.
So the three -year comment -- and I really do
appreciate the reiteration of it for the record -- is
false. And what also troubles me is, even though -- and
I appreciate your comment -- we go to the effort to make
this as explicitly clear as we can, and it's sitting out
there, nobody's read it. So that's my first observation.
My second observation is --
MR. ALLEN: I've read it.
MR. MATHENA: Thank you. I appreciate that
greatly, actually.
My second observation is you have code
violations. City knows about them. I checked with Code
Enforcement. City doesn't choose to enforce them. City
doesn't choose to turn them in. I don't understand why.
Above and beyond that -- and, in fact, once you
get to that point and once you accept that people are
going to the beach, are going that playground, they are
impacting or potentially may effect or be effected by the
presence of this use at the elementary school.
And I find it personally offensive that, sort
of as a black line rule, we're attempting to say, oh, we
can't consider the impact of this location of this use on
the school. Just because you didn't have evidence or
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PUBLIC HEARING - 2/12/2009
evidence you deemed important prior to this hearing
doesn't mean it couldn't walk in kind of like it has,
although it was there all along.
I'm glad you read what I wrote, and I don't
know want to waste time, then.
To quickly hit some other points, 1601 is easy,
if you go look at the facility. The patio where people
I
smoke, what it fronts is a 70 foot wide empty street.
It's fortuitously in the right place. And, in fact, if
you set up a zoning ordinance for these sorts of
facilities that made them have a no -man's zone around
them, it would make sense. That's not -- in fact, you
have the exact opposite situation.
I find it offensive, by the way, that the City
says, oh, these are good operators. They don't know.
Nobody at the City ever came and asked me what I thought
until this hearing began.
And in fact, the City went out of its way to
discourage people's attendance as these things. Period.
And it does so by scheduling a hearing. And if it gets
too much data, it doesn't go to the same effort to change
the hearing date that it did to initially publish it.
And last point -- and actually, Paul, we'd be
happy to have college students. And no, there was never
more than two bodies to in any single bedroom in the nine
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years I've lived next door to this place. Period. So I
think you have a clear path.
MR. WETHERHOLT: Drew Weatherholt, resident of
Newport Beach.
Mr. Kiff, I do have to disagree with you
regarding the cost of the burden, cost to the City of
Newport Beach. Calls for police service may not be
directed specifically to this property; however, if you
look at calls per services in the surrounding area versus
individuals loitering, the various crime issues, stuff of
that nature, I think there clearly would be an impact.
Just this past week, the police department
passed out a yellow flier indicating that was there was
theft and robbery activity in that surrounding area.
Perhaps coincidence. Can you link it directly to this
property? No, you cannot. But again, the coincidences
keep piling up.
Also, conversations with Hoag Hospital.
Individuals at the ER department directly reflect that
three to five people come from Newport Beach rehabs on a
weekly basis. Can they disclose names? Can they
complete statistics in that regards? No, again, because
these people are protected by privacy laws and,
obviously, the drug rehab aspects that are involved with
them. Clearly there's an impact there with the fire
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services, medical services, emergency services.
Conversations with local police officers.
Please ask them. Just ask them. They deal with it on a
daily basis. Is there a specific call or log for us?
No, there may not be. But they have to deal with it on a
regular basis.
The beach main, which we have discussed here
many times. I go to that park there on Newport E1 on a
regular basis. Is it fair that my children have to
listen to the words "fuck," "god damn it "? And I
apologize. That',s not appropriate language for a
meeting, but it's certainly not appropriate for a
3- year -old or a 5- year -old.
Smoking is atrocious. Please, I welcome you to
go down there anywhere between 9 and 11 o'clock on a
Saturday and see what is taking place there. Many of
those people at that meeting are walking down in the
direction of this particular address.
Best operator? I almost find that kind of
humorous here. And we have an attorney that's making
that representation? I'd like to see what creates the
best operator of Newport Beach.
The reduction of bed counts from 22 to 14.
That's going to put them out of business? I'd like to
see their financials to that effect. I'd like you to
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request to see their corporate financials, corporate
Federal tax returns and the individual tax returns for
the operators of that organization.
Because my rental properties receive $2500 per
month. These guys are getting anywhere between $10- to
$25,000 per head her bed on a quarterly basis.
with that said, I'll recommend denial..
Thank you.
MR. RUSH: Bob Rush. You said I could come up
and finish what I was in the middle of saying, so I am
going to take you up on that.
On the issue of density, Mr. Kiff, good points.
But if you really examine what he's saying, with respect,
David, it flies in the face of the Fire and Building
Code. Specifically identified in the last 24 months
targeting rehab group homes and applied to the rehab
homes, in particular, unfortunately, on -- fairly, this
operator has been the target of more citations
and -- more fireability citations than any other operator
that I'm aware of. It has a portfolio.
And these new rehab Fire and Building Codes are
really -- if you look at them, their origins are based in
density and use issues. And that's why they're so
effective at calming new locations. And that's why the
City went into the investigation mode, identified these
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things in State codes, and started applying them where
they hadn't applied them in the last 24 months, I'd say
18.
This operator, Mr. McCloskey, has one location
that the amount of citations has delayed his opening of
that location for a year and a half. So I really differ,
and it flies in the face of what Mr. Riff says in that
there is no cost. There is no burden difference.
The burden difference is very subtle, but if
you look at what the State does, you'll understand that
these Fire and Building Codes are use and density driven,
and so their use is -- I think it's prima facia evidence
that there is a difference. There is a difference
between the density of rehab and the density of vacation
rentals. There is, clearly.
Secondly, State laws. State laws in general
around drug rehabs, if you look, they all predate Prop.
36's initial passage. They all predate 2000. And so a
lot of the separation in density rules aren't there.
And what does Mr. Kiff and the City Council,
what have they done so far to kind of push that agenda?
Nothing. There's not been one legal effort exerted to
push that density definition, other than a trip up by a
Councilman to have lunch with some legislators. But
there's not been any legal actions to push the density
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question.
And if you look at the different categories of
group homes that are spatially dispersed under law -- of
State code, you'll see that things like trauma homes and
ambulatory care homes, where there's no mobility of the
'patients, they are mandated to be 700, 1,000 feet apart.
And yet, we have highly mobile, highly capable
type of rehab patient that's more of a burden to our
area, and there's nothing there. The law hasn't
clearly -- has not caught up with the post -Prop. 36 flood
of otherwise prison inmates into our community.
Thank you.
MR. LOPEZ: Paul Lopez, 1125 1/2 West Balboa
I Boulevard.
Very personal item to me. I've lived next to
this facility for five years. It's actually good to hear
the operator speak tonight, because I think there's a
pattern developing here, which I'm going to share some
insights on, related to the staff report. And I'm going
to read so I can try to fit in to three minutes.
So as it relates to the operator's comments in
the staff report, "The operator states that 1115
residents don't attend weekend Narcotics Anonymous
meetings."
Mr. Kiff, I think, fleshed that out quite
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adequately today. I've observed them sitting on my deck.
I'm directly next door. They walk down the alley. I
have followed them to the beach within the last three
months. So three years versus three months. Something
is wrong with the operator's potential memory.
"The operator states that they discourage
smoking at the facility," written in the staff report.
There's no evidence of that. And, in fact,
direct neighbors on the east, west and south side of 1115
have gone on record complaining about the amount of
secondhand smoke that is being generated from this
facility, and voicing their concerns over the families'
health and restricted living environment it creates for
their families.
It is a fact that large groups of residents
smoke daily in the courtyard and around that facility,
both front and back. Immediate neighbors have also
documented to the City their concerns related to the
impact negative impact of this.
To prove that the operator not being forthright
on this issue with the neighbors and the City, up to 40
people, mostly guests, on Thursday night visit for a
Thursday barbecue. There are more than 30 people smoking
in the courtyard burdening the neighbors next door.
I think the City needs to ask the operator to
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explain his definition of discouraging smoking. Because
they have already installed -- they just recently
installed a tent over the courtyard smoking table to
shield their smokers from getting wet during the recent
rains.
"The operator states that most of the residents
don't have personal cars, but just a few that are in late
stages of treatment."
In fact, this evening, I just heard that there
was one isolated incident of a car. This is not true. I
believe you should have stated, "most residents have
cars." Neighbors provided the City with personal
observations, including pictures, that show 1115
residents are seen and heard at all times of the day or
night in their personal vehicles.
"Additional, the operator states there's a
maximum of five cars parked for the Thursday night
barbeque."
This is not true. Thursday gatherings generate
30 to 40 people, most of these guests arrive by personal
automobile. Anybody trying to park at the 1100 block on
Thursday evening would see this.
"The operator also states that local neighbors'
observations and the unhealthy living environment is due
to adverse behavior of the residents at 1129 West Balboa,
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not his 1115 facility."
This is absolutely not true. The record shows
that all observed behaviors, code violations, secondhand
smoke, offensive language, are emanating strictly from
1115 West Balboa Boulevard. The record is clear on this
issue and substantiated by petition signatures, letters,
and pictures that have been submitted to the City.
Can I go on? I know my time is up. I just
want to finish. ,
MR. ALLEN: It's not fair to the other people
in case -- because I'm told we do have to leave at 6.
And I don't know how many more people are going to talk.
MR. LOPEZ: Can I make just one last comment?
THE COURT: Sure.
MR. LOPEZ: Okay. In the City's
recommendations, and what appears to be rather arbitrary
designation of West Balboa Boulevard as being some kind
of dividing line for a block, the facility at 1132 that's
already been approved by the City sits 80 feet from my
residence. 1115 is 5 feet from my residence.
That arbitrary designation, that somehow West
Balboa Boulevard is a designation, I think dually
unbiases this discussion that we're having right now.
Because from a practical living standpoint, I've got two
facilities --
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MR. ALLEN: You made that point really clear in
your material.
MR. LOPEZ: Can I ask one last question?
MR. ALLEN: Yes.
MR. LOPEZ: One last question. Did you see my
pictures?
MR. ALLEN: No.
MR. LOPEZ: You haven't seen the pictures that
I've submitted to Dave Kiff, 18 of them?
MR. ALLEN: No, I have not.
MR. KIFF: They are in your file, and here they
are. You can thumb through them.
MR. LOPEZ: Could you, please?
UNKNOWN SPEAKER: Mr. Lopez can have my time.
MR. ALLEN: Are they part of what was e- mailed
to me?
MR. KIFF: Yeah.
MR. ALLEN: I didn't get through them. I will
look at them before.
MR. LOPEZ: Would you, please, because I think
they kind of graphically represent -- can I have that
woman's time? I'm able to have that? Is she able to
designate her time to me?
MR. ALLEN: We don't have any procedure or
rules for these meetings, as I understand it. Take two
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more minutes.
MR. LOPEZ: Okay. So again, I just want to
show a little bit of a pattern here by the operator.
"The operator states" --
MR. ALLEN: Because you lived next door, you do
have a vested interest here. Go ahead.
MR. LOPEZ: I appreciate that. I've lived
there for five years.
"The operator states there's at least four
staff members on site at the 1115."
This is not true. Several local residents have
gone on record questioning whether any staff is there
during the day.
"The operate states one man transports all 22
residents to off -site events and meetings."
This is not true. In fact, the number of vans
is at least two, and you'll see in your package there is
a picture of the vans in the alleyway picking -- two vans
picking up the residents.
"Operate states curfew is 10 p.m. on weekdays
and 12 o'clock on weekends, and lights are out at it
o'clock."
This is not true. Local residents have gone on
record with observations that residents are coming and
going on bikes and cars at all hours of the night well
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past any of these stated times. Rarely are lights ever
out at this facility.
And then finally, the overconcentration issue,
which I think is a big one. I talked about kind of the
arbitration assignment of West Balboa Boulevard. I've
got two recommended approvals. One approved facility,
one being recommended by the City staff. That's going
put two facilities within 80 feet of my residence.
And we've submitted in our package
documentation that the residents at 1115 are in
interacting back and forth with the apartment complex at
1120.
MR. ALLEN: You've gotten all that documented
well in your --
MR. LOPEZ: Thank you.
MR. ALLEN: -- material.
MR. LOPEZ: I very respectively request denial
of the application.
MS. DARLING: Hi. My name is Colleen Darling,
and I'm the owner of the property at 1113.
MR. ALLEN: Spell the last name, please?
MS. DARLING: D- a- r- l- i -n -g.
MR. ALLEN: Thank you.
MS. DARLING: I've owned the property for 13
years, and I lived there before I had children, when it
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was a residential apartment house. There was never the
amount of people that you had stated there. At the most,
there was two people in every apartment, which was a
normal apartment. And there were two studios.
And even with them not hitting any kind of
code, the people that lived in the single places were
totally respectful of the neighborhood. They were nice
to be with, and we all used to hang out and have a great
i time.
When the facility moved in next door, I moved
out. I've got two tenants now, and I rent the houses.
And I've got to tell you something. It's pretty hard to
tell somebody that you can have a house in Newport Beach
and live next to a recovery home.
I experienced it firsthand last year. We were
there for six months. And the hours of use? The noise?
I went to that fence many times, because my kids' bedroom
is right on that corner. 10:30, 11, 12 o'clock at night,
there's guys out smoking. They are drumming their hands.
They are singing. They are talking. And then they all
go in when you go in.
And when you say something, then you hear the
door slam. And they're aluminum doors, and they said,
"Well, we'll take care of it. We'll put closers on it."
See the guy the next day, and he said, "You know what?
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It's kind of expensive. We're going to do our best."
So then they are in their houses, and the
windows are all open. I can't open my window at night
when it's 90 degrees last summer because the TVs are
blarring. And it's not that the TV was off at 12
o'clock. That TV is on all night long.
And those people are up and about at 6 o'clock
in the morning, because that's when they start their day.
It's not 8 o'clock. Never did I experience no noise
until 8 o'clock.
They have got the talking, the drumming, the
doors slamming. We can't open our windows. We can't
have a life down there, and that's not fair. I have two
little girls who deserve to have freedom at the beach,
and they can't do that because of what's next door to me.
The trash, we've addressed that. We've
addressed the flies. My tenants can't go out on the
patio because of the Thursday meetings. They don't know
who's next door. They both have girls, also. The guy
across the wall talk to the girls next door. They are
like 12 and 16 years old and really pretty.
You know what? The mother's experienced it.
She's like, "I don't know who these people are. I don't
want them talking to me." So we've seen it firsthand.
You know, you mentioned the other building
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that's going to be at Bay 1129. Why do we have to wait
six months? I experienced it last year. I called the
City when the place was going to happen in the beginning,
and they said, "There's nothing we can do. It's going to
be discriminatory, and the Federal government says we
have to allow this."
So I do thank you for at least putting some
practices in that we can maybe move forward and get some
of these places cleaned up.
You mentioned a reduction of income of 36
percent? If I lose one tenant, I lose 50 percent. If I
lose two, I lose 100 percent. That's doesn't help me at
all.
So, you know, looking at your side saying 36
percent, I lose a lot. I've got a vacant property, which
becomes a nuisance to Newport Beach. And the reason I
live in Newport was because it was a beautiful place. I
,moved from back East, and I landed in Newport. I thought
it was the greatest city in the world. I want you guys
to see if you can keep it that way.
My suggestions with the smoking, which is just
ridiculous, there's smokeless ashtrays. Build a wall
between my house. I've got a pony wall like this high,
and then goes up to four or five feet higher. Build a
wall that's 8 for 10 feet high. I don't want to see your
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people. Put some greenery there. Put some big trees
that absorb some of the smoke. We don't want it. Maybe
it will help absorb some of the noise.
So I thank you.
MR. WOOD: My name is Douglas Wood. My family
has lived in Newport Beach for 60 years. My wife's
family, even longer.
I want to talk about one issue, and that's the
overconcentration of these properties. If you place that
chart to North, Mr. Allen --
MR. ALLEN: Sir?
MR. WOOD: Did you get a chart?
MR. ALLEN: I was just handed the chart, yes.
MR. WOOD: Right. If you look at that chart,
place it North, see "North" at the top left side?
MR. ALLEN: Yes.
MR. WOOD: My property is at 1119. It's the
one than outlined in green, okay? And beside it at 1111
is a property that's been identified by the City as being
a rehab home. And then you go directly behind my house
at 1119, 1132 is a rehab home. And if you go toward the
east, 1120 is a rehab home. And if you go across the
street, the 1115 and 1129 are there. And if you go to
the west, beyond.12th Street, there's 1217 and 1216.
This is clearly an overconcentration of rehab
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facilities in this area, and this application and any
others in that area should be denied.
I thank you.
MR. ALLEN: Thank you.
MS. CURRAN: My name a Laura Curran. I live in
.Corona Del Mar.
MR. ALLEN: Spell the last name, please.
MS. CURRAN: C- u- r- r -a -n.
MR. ALLEN: Thank you.
MS. CURRAN: I go to the beach frequently, and
there are also group residential facilities in Corona
Del Mar, so this hearing creates precedents, so those are
my interests.
First, I want to talk about my own personal
perspective and then ask to provide some comments from a
neighbor. Why does the City not site it for violations,
such as the garage use? Why are we considering approval
with conditions when we've shown -- when the operator has
shown they can't control inappropriate behavior and .
violates codes, specifically the use of the garage for
assembly and other uses.
This is a use that happens here and happens in
other group homes facilities in part to support smoking.
So if the operator is currently using the garage for an
illegal use, why has the City not stopped it before, and
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what confidence do we have that we are going to continue
to comply with the revised terms of permit stated on page
6 and further in the document?
Further, related to Exhibit 1, item eight,
smoking and tobacco products, I'm trying to understand
what it says. "Smoking on -site shall be restricted to a
designated area interior to the facility or an area
enclosed on all sides but open to the sky to prevent
secondhand smoke from impacting adjacent residents."
Now, if the smoke goes to the sky from all
sides, aren't we outside or, de facto, experiencing the
same activity? So I would like some clarification and a
firm understanding that this is interior smoking in a
room which is a part of the residence.
I was also asked to reiterate input from a
resident who lives approximate to this facility. I'll
identify her as a mother with children, and I'll just
exert. This person moved into recently and has issues,
such as loitering.
And I'll quote. It says, "As I come home with
my children in tow, we have a rather rough looking person
standing in our yard smoking his cigarette as if he lives
there. As we park, he continues to remain on our steps
smoking a cigarette. We have to walk through side stream
smoke to get to our front door. It's an intimidating and
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unhealthy situation."
Loud noises and profanity. This person
discusses, "I lay in bed listening to groups of people
talking, laughing, yelling, coughing, banging,
televisions blarring, in and out of doors, just beyond
the bedroom windows, and this happens to the children."
Paraphrasing, "When my school children ask
about -- tell me about it, they say they fall asleep
listening to the neighbors every night. And this is a
especially disruptive on schools nights."
Again, related to the smoke. "Constant smoking
next door has prohibited my children from be able to play
in the backyard, which is a part of our property. When
someone goes outside to smoke, we are required to send
our children inside, so that they are not affected by the
smoke again."
Finally, this person wants to reiterate that,
"Newport Elementary School is in close proximity to this
and many like kind facilities, which the City has allowed
to operate. This is not right and poses an unnecessary
danger to children. It is within close proximity to
other facilities of like kind and other situations the
City has allowed to occur."
Again, this resident and others ask that you
deny this permit.
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Thank you.
MS_ VERDUGO: Hi. I'm not quite sure the set
up. I've never spoken at a City meeting. I live
adjacent to 1115 West Balboa.
MR. KIFF: Your name, please?
MS. VERDUGO: Christine Verdugo.
And I -- basically, I'm not up here to discuss
real specific issues. I've submitted a letter that is in
your package. I wanted to just come face -to -face with
you and just make sure that you are going to review
everything in the packages that you've received on this
before coming to a determination so that you can see
everybody's story.
Because I think three minutes per person is
really not enough time to give you all the information
that you might need to make a decision, which obviously,
from a general perspective, is side stream smoke,
loitering, language, intimidation, age- inappropriate
contact, waving at the children over the fence, handing
cake -- birthdays cake over to my children to bring it
the home. It's a problem.
I did want to clarify directly to you that it
is misleading to put on record that 1129 has any direct
effect on the situation that's going on at this property.
Okay. Please look at that as a separate issue and then
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the issues that are brought up in our letters and our
comments that are directed to this property.
Certainly we live there. We can tell you if we
see direct contact between the two properties. Not that
they don't come into contact with each other, but the
issues that we're complaining about are specific to this
location.
I did also want to make a note about the
misleading date of the hearing. The signs that are all
posted all over the City state, you know, the February
5th, or whenever the initial date was. So an interested
party walking by the home could still see the 5th on the
7th and think they missed the hearing, when, in fact, the
here was still upcoming and would have an opportunity to
come to the meeting. So they are misled in that sense.
Again, I'm just a little bit nervous. I
apologize. I ask that you please read all the
information in the record and make a determination using
your leadership, which I've seen a lack of within the
City.
And I feel very offended that my letter is
being used to build conditions that they would be using
to abide by, rather than using it as my defense in
helping you find a way to stop it altogether.
And I feel also offended that we have to suffer
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while they figure out the solution to the problems. So
while he's stated specifically they don't have a solution
to the side stream smoke specifically, and da, da, da,
we're going to sit around breathing it every day while
you decide what you're going to do. And I don't think
that's right either, because every second that we breathe
it, we have consequences from that specifically.
So I think the solution, based on the
overconcentration -- I mean, this guy is naming 1111,
1132, 1217: 1 mean, how many more do we have to have in
one specific area?
We pay a lot of money -- and we don't own.
We're not wealthy. We don't own. We.go -- we live here
for the schools for our kids. So we want to -- we're
willing to pay a higher price to have a nice area, and I
think that's just too many people congregating in that
!demeanor.
So thank you.
MR. BUNCH: Good evening. My name is Ray
Bunch. I'm the husband of Colleen Darling. We're the
owners of the 1113 building next door to 1115. And I
wanted to give you my perspective when we stayed there
this summer. It may be a little bit different than
you've already heard.
I see this business next door to us that is
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doing their rehab, which is obviously a fine thing and a
needed thing. It turns out this is a beautiful area, and
it's a very -- I see it as a very attractive place to
draw clients to, knowing that they are going to be near
the beach, and it's a good selling point.
But that means we have a business next to our
property. And instead of apartment buildings with
separate individuals that would stay there on a regular
basis, what we're getting is people that are cycling
through.
Now, these people are -- I don't know the exact
conditions of why they there are, whether it's drug
rehab, or alcoholism, or what have you, but in not
knowing that, that's a little concern being a parent.
And knowing that there's guys coming through on
a regular basis -- I don't know their histories, I don't
know, you know, they are right next door -- there's a
little bit of a fear that comes with that. And, you
know, it's a home, you know. It's where you have your
family, and that shouldn't be there.
In a place where there's more room and less,
you know, less concentrated than Newport Beach,
especially along the boulevard there, I can see having
something like that. But when the quarters are so close
together, so confined, I mean, where there's just a short
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wall away, and guys are leaning over saying hi to my
daughters, is not okay with me.
So this is just a small example of what could
possibly -- what has gone on there. So what could
happen? I don't want to even consider that. But having
those people cycle through, we've already covered the
smoke and the noise, and all the other uncomfortable
things of it.
But I think just because it's an attractive and
it's good for their business, it's not necessarily good
for us, which is the homeowners. All right. That's all
I need to say.
MS. OBERMAN: Denys Oberman.
First, I'd like to say that Mr. McCloskey has
always been personally courteous to me in the times that
I have seen him, which is not been whenever I've
experienced incidents from his residence.
I do have a number of questions that I'd like
to address to you, and perhaps you can address them to
Mr. McCloskey and get answers.
First of all, this is a large facility by any
standard. Who is the on -site manager? Is there one?
That's my first question. I'd like to get an answer.
Shall I just go through what I want to
say, Mr. Allen? I need some direction here. Okay. So
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that's the first question.
MR. ALLEN: I mean, if you asked those
questions, then I hope we can get them and I hope the
Applicant is listening.
MS. OBERMAN: Okay. Who is the on -site
manager, and is that manager, in fact, on -site?
Secondly, there is evidence of people going
from 1115 West Balboa to 1120 West Balboa. There is a
going back and forth. We'd like to know, what is 1120
west Balboa? There is clearly a relationship between
that physical facility and the people in it and 1115.
Thirdly, we'd like to know -- we do believe
that Mr. McCloskey, in certain respects, is trying to be
a better operator than others. Having said that, the law
is very clear in saying that institutionalization
overconcentration is bad for the people seeking
legitimate recovery.
So, we ask why is Mr. McCloskey intent on
establishing another facility, which would be the third
facility within a thousand feet, at 1217 West Bay in
(addition to the facility at 1115? And those two
facilities are within 200 to 250 feet of one another,
contributing to overconcentration. So that is a bad
business decision, because it creates a rehab community,
which is institutionalization. So we don't understand
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that, and it's bad for his clients.
Lastly, we have not observed any evidence of
significant adverse impact from 1601. There are
significant adverse impacts from 1115. And we feel it
may be worthwhile to consider these as two uses to be
considered and approved individually or denied on a
conditional basis rather than commingling them. That may
make the best use management for the City and may be the
more equitable thing to the operator as well.
So we request that 1115 be denied, and we are
comfortable with 1601 West Balboa being approved.
Thank you.
MR. ALLEN: Any more who would like to speak?
MR. MYERS: Can I have 10 seconds?
MR. ALLEN: Pardon?
MR. MYERS: Can I have 10 seconds?
MR. ALLEN: Sure.
MR. MYERS: Jeff Myers, M- y- a -r -s.
I want to say that we value the rehab effort
that they are doing. This particulAr location, 1115,
they don't own that facility. We don't wish them a
financial hardship. We just wish them to move to a more
adequate location.
Thank you.
MR. ALLEN: Okay. Anyone else want to say
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anything?
Okay. Then -- is it compelling, and did you
not write it?
MR. LOPEZ: I didn't write it, I don't think.
Paul Lopez.
I just wanted to make note in the staff report
that when we talked about the box without a ceiling on it
for smoking -- I don't know how you defined it -- is that
you recognize that on all three sides of the building are
buildings that are actually taller than the 1115
facility. So if you shoot smoke up in the air, you're
shooting in the master bedrooms of three different
facilities.
Okay. Thanks.
MR. ALLEN: Thanks. Okay. Let's close the
public hearing then, and bring back -- let's see. It's
10 minutes to 6. We're required to stop at 6, and we
have some questions to respond to, and I think the
Applicant should respond to some of these comments as
well.
Mr. Kiff, do you have a recommendation as to
what direction we might take here?
MR. KIFF: As I noted earlier, I think a number
of the very specific concerns, and you heard them again
today, need to appropriately be addressed. we actually
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could try to address them until maybe about 6:15. The
Planning Commission meets at 6:30. We need to give them
a little bit of time to set up, if that were amenable to
you. And then maybe see how we do, and then you can use
your judgment, if you feel like too many things are
unaddressed, which may, indeed, be.
So your choice, Mr. Allen. I can comment on a
number of things that have been said. Maybe it's better
to let the Applicant do that first, and then I can follow
up maybe with some questions of them as well.
MR. ALLEN: I think that's a good idea, and I
don't mind spending the extra time if we have the
location.
MR. KIFF: We've just talked to the Planning
Commission secretary. There's no meeting. we can go a
little longer, then.
MR. ALLEN: There seems to be one disconnect
that keeps coming up here, from my perspective, and that
is that there's contentions that there hasn't been staff
involvement, and why have these garages been used for
assembly uses and not parking.
And the question becomes, has the City received
a lot of complaints about this? And I realize that
that's a wide open question. But I'd just be interested
in trying to understand the difference between the
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observations of all of these people that have gotten up
and spoken and the seeming lack of records or information
about responses to the complaints.
MR. RIFF: I can offer a couple of comments
there, Mr. Allen, maybe because that may address some of
the questions that came up, including one from Ms. Curran
about noting that in the staff report, we cite that -- we
note that there are at least two ongoing Code violations
that have been occurring at this facility and at 1601,
and that is the conversion of garages to non - parking
uses, and then assembly uses on -site.
And we do operate Code enforcement on a
complaint basis. So we're not out -- we do some
inspections on other own that are obvious to us, illegal
signs, a hedge that, for instance, is a potential hazard
in terms of line of sight for cars, trash violations, and
things like that.
But a number of them, it does take someone to
call in and say, "Hey, look. This is what's happening at
my neighbor's house," and we go out and do an inspection.
I oversee Code enforcement, and this was one
that either we weren't contacted about or we genuinely
missed. And I tried to note that in the staff report
these are violations that should have been Corrected.
And I believe, had they come to our attention earlier, we
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would have districted that they be corrected. So that's
an error on our part.
I will state, though, that these are
common -- one of them, converting a garage, is a very
common violation. And we don't penalize the homeowner
beyond -- we start with a notice of violation that has no
monetary fine. We'll say, you know, you've got to
convert that back. You've got to clean out the stuff
that's in there so you can park two cars.
It's very common in Newport Beach. It's very
common in many beach communities, So I don't think it's
fair to pick on Ocean Recovery for something that we
don't pick on everybody for and /or when they'make the
remedy, they are good.
Similar to the correction that Mr. Myers
brought up, we have all kinds of trash in the alley
violations. We have hundreds a year. So is it a
violation? Definitely. Is it unfair to penalize Ocean
Recovery for a violation that happens all the time with
other folks? Yes, I think it is unfair.
And that's why we did develop a condition to
say, "Look, no more of this. You have a lot of trash.
You need a cover." But I also know that our General
Services Department doesn't allow you to put a cover on
there if you've got a plastic bin, and you leave it out
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the night before. And, arguably, they leave it out too
early.
So one of the conditions does direct them to go
to a bin service with a cover with collection during the
day on a weekday, when hopefully not a lot of folks are
around to hear the trash truck come by.
So with that, I'll stop talking and maybe you
have further questions.
MR. ALLEN: I think it would be good idea if
the Applicant would come forward and try to address some
of these issues as well.
MR. MC CLOSKEY: Sure. Again, Jim McCloskey.
We have tried to address, first off, the trash
issue, which Dave was talking about. We did go to a
trash can with a lid to try to take care of the noise.
And we actually got cited for it the way Dave just
mentioned.
So I know a lot of these things are difficult,
but we've tried to do it. There are no more barbeques.
There's no more outings at either facility, so those are
gone. We have enacted that ourselves. Thursday meetings
are gone.
MR. ALLEN: I'm sorry. You said there's no
more barbeques, no more assemblies. And then you said
something like alleys or what?
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MR. MC CLOSKEY: From this point forward, we're
no longer having the barbeques or assemblies, so it's
dismissed. It's gone.
The other thing I'd probably like to address
that got mentioned is the trips to Hoag Hospital. You
know, there's a difference between what we do and maybe
what some of other rehabs do.
What some of the other rehabs do is what's
caused primary care. Primary care means to get involved
in detox, which is a more direct situation where people
are more susceptible to having to have emergency service.
we do not do that. In order for them to come to our
facility, they have to have some mobility and some
stability within their program.
So to my knowledge, Kevin, correct me if I'm
wrong, have we ever had anybody had to go to Hoag
Hospital? There's nobody from our facility that's ever
had -- for medical reasons had to go to Hoag Hospital for
an emergency situation. So that kind of differs us a
little bit.
We talked about the Thursday meetings.
Our managers are on -site. The person that runs
1115 West Balboa, Karen Knab, as I mentioned before,
she's a master level -- has a Master education. Worked
for Hazelton, which is one of the largest rehab
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facilities in the country. We were lucky to get her from
that facility.
So -- and there is somebody there 24/7.
There's supervision during the day. Our -- I'm sorry.
During the week, there is at least three people there;
sometimes there's four people there. We can address
that. And there is somebody. We do have supervision
24/7 there.
MR. ALLEN: Ms. Oberman specifically asked the
identity of the on -site manager.
MR. MC CLOSKEY: Karen Knab.
MR. ALLEN: And that's Karen Knab, K- n -a -b?
MR. MC CLOSKEY: Yes, correct.
UNKNOWN LADY: Can we make a comment?
MR. ALLEN: No, not now, thanks.
MR. MC CLOSKEY: The other issue I'd like to
address is the recommendation to we build a wall or build
plants in between the two facilities. We'd be more than
willing to do that or consider that if the City would
allow us to do that. We're willing to make changes. So
we're open up to the suggestions on that.
MR. ALLEN; What about the question about what
is 1120 West Balboa? I don't know what the connection
is?
MR. MC CLOSKEY: We have no affiliation with
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it. It's not ours. We don't own it. We don't control
it. I tried to do -- I just found out about this.
One of the things that is perplexing to us or
hard for us is we are just learning about some of these
today. Myself, I just learned about some of them_ So
some of them I don't have all the answers to. I tried to
find out about 1120. Is that what it was?
MR. ALLEN: I thought that's what Ms. Oberman
I said.
MR. MC CLOSKEY: It's not ours. I tried to. I
could be that there was some friends that were visiting
there, but it's not our facility. We don't have any
affiliation with that facility or that residence.
MR. KIFF: So, Mr. McCloskey, to put a finer
point on that, then, you don't know about anybody
operating 1120?
MR. MC CLOSKEY: I'm going to say we have
nothing to do with it. I haven't had a chance to fully
research it to find out who is in there, and what's going
on, if our clients -- if they are friends, or what
relationship our people have in there, but that is not
our facility.
MR. KIFF: I would note, Mr. Allen, for the
record, the City is not aware of whether 1120 was or is
operated as a group residential use. If it is, it's
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subject to abatement in 13 days or 11 days.
And similarly, Mr. Wood's map, he brought up
another address, 1111 West Bay. I was not aware that
that was being used as a group residential use. It's not
on our list, but that would be subject to abatement in it
days as well, just like 1129.
THE REPORTER: Paper, please?
(Pause in proceeding.)
MR. MC CLOSKEY: You know, the last thing that
I forgot to mention was the NA meeting. That's actually
in our clients', for lack of a better word, daily
routines. In my haste -- I'm going to take a fall for
that. In my haste, I actually grabbed a very old
calendar that we used.
Again, our clients do not go to that NA
meeting. It's not part of our program. We do not send
them there, and they do not go there, so --
MR. ALLEN: That's the meeting where they
talked about walking up to the 15th Street?
MR. MC CLOSKEY: Yeah, on the beach.
MR. ALLEN: Yeah.
MR. MC CLOSKEY: It is a very large meeting.
Our clients do not go there. We have no control of it,
and we are not associated with it.
MR. ALLEN: And you don't encourage your
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residents to attend that meeting?
MR. MC CLOSKEY: Absolutely not. In fact, we
discourage them and tell them that they are not allowed.
MS. BROWN: Why is it on the schedule?
MR. MC CLOSKEY: Again, as I said, it's my
error. In the haste to get this into our workup, I
actually grabbed an old schedule that was there from
quite some time ago. So that was actually my error.
UNKNOWN PERSON: I quit.
UNKNOWN PERSON: What about the eyewitness
account?
MR. KIFF: I'm trying to think of what
questions -- Ms. Oberman asked two more. One of them was
more, I think, directed to the City. Do we consider
these two application independent? And we do, which is
why they are set up on the same day but they are two
separate agenda items.
And then her other question was, why establish
1217 west Bay? -
MR. MC CLOSKEY: All I can tell you about 1217
is that it's not operational. It has not been. We've
owned that property for two years.
MR. KIFF: I guess that would allow me to make
a couple of comments based on what Mr. Rush said. We did
follow that 1217 West Bay property closely,
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because -- and it's a little different from what folks
may understand.
Remember, if you're starting a new facility
today and seeking an ADP license, and you're seeking one
for more than six people, you do need a fire clearance.
And the fire clearance applies to the Codes in effect at
the time you ask. And the Codes change nearly every two
years.
So the Codes become more and more challenging
each time they get updated and, in some cases, more and
more protective of what they call group residential use
or group residential occupancies. And it doesn't always
distinguish between someone's ambulatory ability and
non - ambulatory ability.
We don't think that makes a lot of sense, but
the Codes are the way the Codes are. So with
Mr. McCloskey's facility at 1217 West Bay, I believe the
initial application was for eight people in this
facility. And it involved what the Fire Department
believes was a three -story building, because of split
levels and lofts, which a different level of Code
standard apply.
And I don't know if you've ever read the Fire
Code, but it's highly complex. Even the Fire Marshal
struggles with it. But we believe we acted fairly at
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PUBLIC HEARING - 2/12/2009
1217 West Bay. And then eventually, because the bed
count was dropped to six, we were able to sign off on a
fire clearance at that location.
MR. ALLEN: Okay. Any other comments or
questions here?
Okay. Thank you.
MR. KIFF: Mr. Allen, I'll give you a number of
potential answers to questions folks raised. They don't
involve Mr. McCloskey. Forgive me. I'm just going to go
through my notes here a little bit.
I think I addressed how we would deal with Code
violations. In some cases, they're relatively minor and
happen all the time throughout the City. They are still
important to us, but many times we rely on people to
report things to us.
I did want to touch on something Mr. Mathena
spoke about, and that is the definition of a block,
basically. He didn't quite phrase it that way, but in
the APA standard, we talked about one or two uses per
block.
Now, our Ordinance defines what an block is.
And a block is an area bounded by streets. Now, if you
look on the board there, our interpretation of this has
been an area bounded by streets and /or the boardwalk or
the sand, in some cases.
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That the block, in this case where Ocean
Recovery sits, is the 1100 block of West Balboa in the
odd numbered section. And it also would include those
;properties that face Ocean Front West.
Now, the definition of the block also allows
you to stretch that out. It doesn't allow you, unless
you specifically choose to do so, and I would -- staff
would argue it's not the appropriate interpretation -- it
doesn't allow you to draw a circle around something and
go 617 feet.
It allows you to stretch out a rectangle. And
the rectangle is restarted again when you cross a street.
Again, the definition of the block is in the Ordinance.
It's as defined. We even, at one point, had a diagram
showing what a block was. So I wanted to make sure. I
don't think it's arbitrary at all. It's based on the
Ordinance.
I'm going to keep going through some of my
notes. I do think that the number of times folks have
brought up that beach meeting -- and I'll stress it once
again, I think that's something the City needs to
address.
I don't think it's appropriate to shoulder that
burden on one operator, because I've been told people
from throughout the region attend that meeting. What the
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PUBLIC HEARING - 2/12/2009
City will have to do -- and I know Council Member Henn
has spoke about doing this -- is to require special event
permits for things like that, so we can more
appropriately regulate them.
Today, the only special event that requires a
special event permit on the beach is things like large
surf events. I think we even had a threshold of the
amount of people that are in that type of meeting.
So we may have to ratchet that down. Because I
think the loitering is a problem, and breaking in law and
smoking is definitely a problem. So that message has
been heard. We need a change the Ordinance and fix that.
I wanted to address one thing that Ms. Verdugo
brought up, and I apologize. She noted that she was
offended that her letter was used to build conditions.
It wasn't just her letter, and conditions are built to
address -- conditions for use permits are built to
address concerns raised because of that use.
And I do very sincerely want folks in the
audience to understand that people in recovery are a
protected class and entitled to fair housing
opportunities. And that is why the Ordinance was written
the way it was written.
It didn't say we can never have any recovery
homes in Newport Beach anymore. It doesn't say they
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PUBLIC HEARING - 2/12/2009
couldn't be in any residential district. Because Court
cases up and down the nation have shown that they need to
be allowed in residential districts because this is their
home.
So whether it's a business operating in a
residential district, it sure is. You're right. But
we're clearly directed by law to allow that in a
residential district.
What our Ordinance tried to do -- and you're
right. And probably two years ago when you would have
called and said, hey, we can't do anything. What we
decided to do was change that mindset and said, maybe we
can do something. Maybe we can address the secondary
impacts of a overconcentration of homes.
And that's what led to the Ordinance's adoption
more than a year ago. What you're seeing is the
consequences of that Ordinance. It gave folks until
February 22nd to either file for a use permit and get one
or leave.
And cities across the state, and even across
the nation, are looking at this Ordinance to see if it
survives. We're committed to trying to implement it
fairly, and "fairly" includes allowing folks in recovery
to continue to reside in Newport Beach, but to address
the secondary impacts of those residences, to make sure
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PUBLIC HEARING - 2/12/2009
that people around them are protected to the maximum
extent practicable.
We're hopeful this Ordinance succeeds is doing
that. An Ordinance is a device written by humans, and so
it has human error in it. So, thus, you can see all the
struggles we've been going with in crafting conditions.
With that, as we're approaching 6:15,
Mr. Allen, I'd be interested in some of your thoughts.
I guess I'd offer one thing. I think there's
enough uncertainty in this, especially as it relates to
1129, and that certainly a lot of encouraging comments, I
think -- maybe that's not the right word -- by the
Applicant to try to resolve things that I'm reluctant to
ask you to issue a use permit based on the staff's
recommendation.
What I'd rather do, I imagine, is if there was
a way we can continue this action and have a period of
time where the Applicant could prove that they could live
by those conditions, maybe it's -- maybe it's six months.
Then we come back.
And then the assurance that we have is that
something is not issued today, there isn't a guarantee of
this operator's ability to stay, until we pass through
that six -month period with compliance or not, and with
potentially the removal of 1129 from the picture and,
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PUBLIC HEARING - 2/12/2009
gosh, maybe 1120 across the street, and the other ones
that didn't apply, and use that as a test period to see
whether or not this application is worthy of being
approved or denied at that point.
MR. ALLEN: Well, I think that's worth
consideration. This is a very difficult one. It's just
wrought with issues, you know. Sheppard Mullin saying
that the Ordinance isn't enforceable, it's
unconstitutional, but we want to work with you.
The Applicant also says that they can abide by
most of the conditions here. The most compelling issue,
obviously, is the number of beds that are permitted. The
neighbors say that this is a verbal nuisance; that
there's a series of problems.
And it clearly is a problem from their
perspective, given the tight dense relationship.
Mr. Mathena, Mr. Lopez and their families live within 5
feet of it. And I think it was an interesting comment by
one gentleman that you just don't know these people,
because they are here today and gone 90 days later.
I am not persuaded it's a good idea to issue a
use permit at this time, because it becomes a vested
right for this organization. Because once that happens,
that permit vests. And despite -- the recommendation of
staff is to do that. I just don't think it's a good
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PUBLIC HEARING - 2/12/2009
idea. And Mr. Kiff is maybe beginning to go that
direction as well.
Because revocation of a use permit is a very
difficult thing. And Mr. Mathena tried to quantify it or
asked us to quantify that in one of his communications.
And frankly, you just virtually can't do that, because
it's such a wide range of issues, and the degree of which
due process is granted in going forward, with the time
involved in doing it, it's just a very difficult
undertaking.
So I much prefer to see us do, as you alluded
to, Mr. Kiff, and continue this for -- the recommendation
was to issue the use permit and then have it reviewed in
six months. I'd rather see us -- unless there's some
compelling issue here from the Applicant where it's
unacceptable, in which event, then, we have to make some
real hard decisions here -- that we continue it for six
months.
And I don't know that we can set a date
certain, but we do a noticed hearing at that time. And
there certainly has been some grumbling about the fact
that we do a noticed hearings and then continue them. So
let's make it certain when we do it.
But to reopen the hearing in six months, and
see the extent to which the Applicant has been able to
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PUBLIC HEARING - 2/12/2009
live with these conditions. And so we're getting out of
time.
The hard issue that gets put to me is, how many
beds? And if they can't make it with 14 beds, it makes
no sense to restrict them to 14 beds and then see if they
can otherwise comply with conditions, because they are
not going to be there. And that might be beneficial to
the neighbors, but certainly not to them.
So I'm not any more able to know what that
right number is than anyone else, but I think I'm there.
And it just seems to me that 16 is one that works,
But do you have a recommendation in that
respect, Mr. Kiff?
MR. KIFF! I was wrestling with that, too. And
we talked in the staff recommendation about coming back
in six months and potentially allowing an increase if --
an increase for good behavior.
To me, it may make more sense to see if ocean
!Recovery can succeed in addressing all of these concerns,
all of the conditions that are proposed, maybe through an
Operations and Management Plan, which I think would be
(good to see back from them in two weeks for this
six -month period.
But there's two schools of thought. One is
that the beds should be reduced. The other is the beds
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PUBLIC HEARING - 2/12/2009
should be at a level that they suggest they can operate
at, and we can make them prove they can operate at that
level. And if they suggested 18 beds, I think that's
arguably more challenging for them to show that they can
manage that within these conditions.
So maybe they need to be careful what they wish
for, because I do want to really see how this operation
may succeed or fail at the level that it says that they
say they need to operate on.
MR. ALLEN: So this presents us with some
pretty difficulty issues, because we say continue it for
six months and comply with all the issues. And yet, we
don't really have the legal force in place to compel it
the way I would see that here, because we don't have the
Resolution adopted.
So the question becomes, are you willing to
live with this process? And we really do have to get out
of here, I guess.
But would you be willing to attempt to do that,
and not -- I guess the City could open up a hearing in a
shorter period of time, I mean, if things went wild
there. But what is your thought?
MR. O'CONNOR: I think the short answer is we'd
be willing to work along the lines of Mr. Kiff's
suggestion. We've heard a lot of things tonight. As.I
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PUBLIC HEARING - 2/12/2009
mentioned, we're hearing this for the first time.
As we're hearing some of these suggestions made
as to how we could become a better operator,
Mr. McCloskey and I have been nodding each other, saying,
"Let's try that."
For example, when Mrs. Darling came up here and
made some suggestions about what we would do to control
secondhand smoke, we looked at each other saying, "That's
a good idea. Let's give that a shot."
So we would be willing to try to implement
these procedures and come back in a period of time, six
months sounds reasonable to me, in an attempt to show
that we can, in fact, comply with these suggested
conditions.
In terms of the bed count, I think that 18 is a
number that is manageable. It is, coincidentally enough,
the mid -point between our currently licensed 22 and the
14 that was recommended in the conditions that are part
of the staff report. So I think that 18 is a good
number.
I do note Mr. Kiff's comment that that may
presented more challenges to us, but we're willing to
(show you that we can make it work.
I would like to note and ask those in
attendance to work with us as well, and I hope that we're
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PUBLIC HEARING - 2/12/2009
not being set up for failure here. Because I can assure
you, and Mr. McCloskey will do the same, that you will
see legitimate efforts on our part to make this better.
And I don't want to have this a situation where
we're just giving the people that, if there are people
that fall in this category, will be against us no matter
what we do an opportunity to come back again.
MR. ALLEN: Well, of course, you can't control
that. If they are against you, they will stay against
you. But hopefully, they can get work. And if there's
lines of communication that can be set up and workable,
then that's all the better.
There's the discussion about -- it's not peer
group, it's the vested -- the stakeholders' organization,
Maybe there's a communication line that can be set up in
that manner.
MR. KIFF: Let me try to pull together maybe a
recommendation for your consideration, Mr. Allen, in that
we do believe this probably needs to be continued to a
date certain, with the understanding that we could call
it earlier, as you noted, if things were untenable.
And that six months is August 12th, if my math
is correct. And during that time, we would obligate the
operator and enter into an agreement providing that they
would agree to an Operations and Management Plan based on
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PUBLIC HEARING - 2/12/2009
the conditions.
I wanted to make sure we don't have a violation
of the Permit Streamlining Act, too. We would -- this
would be a mutual consent.by yourself and your client to
not state that this is a delay in the City's operations.
It would be a violation of Permit Streamlining Act by
continuing the hearing for six months.
So we want to see that that protection was in
there. And that the bed count be 18, because I think
that is be careful what you wish for. And that that
Operations and Management Plan be brought back to us at a
staff level, which we'll make available to the public,
and talk to you about within two weeks. Because I think
it's pretty clear what needs to be done.
MR. O'CONNOR: I think that all.sounds
reasonable. I.might request a little breathing room on
the two weeks for the following two reasons: Number one,
I'm going to be out of state all of next week on
vacation, not that my personal schedule should burden
everyone else's, but I do envision myself having an
active role in this.
And number two, it's possible that we may want
to solicit some opinions based on some of the comments
we've heard tonight. We do intend to be a good neighbor.
The comments are not falling on deaf ears. And frankly,
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PUBLIC HEARING - 2/12/2009
I'd like to take up some of these people out here on some
of their suggestions as to how we can become a better
operator, and that may take a little bit more time on our
part to do so.
MR. KIFF: Well, as long as that effort was
being made, and I think Mr. McCloskey knows how important
it is to -- he's already addressing some of the problems,
but I think there needs it be a really broad effort to
address the concerns.
I'm comfortable with bringing it back in a
month, then, but you understand that a lot of these
concerns, I think, need to be addressed within that
month, which you've heard.
MR. O'CONNOR: That will be more than enough
time. We're planning to get it done in two weeks, but in
case we can't, I would like a little more breathing room.
Thank you.
MR. KIFF: Okay.
MR. ALLEN: All right. Well, that will be the
decision, and hopefully it works, and we get together on
August the 12th. And if there seems to be satisfactory
progress, it can be continued. If there isn't; it won't.
Okay. Thank you very much for all your
1participation. I realize nobody -- not everybody's
1 happy, and that's how the way things usually work. But
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PUBLIC HEARING - 2/12/2009
let's see if we can't make progress on this.
Thank you.
MR. O'CONNOR: Thank you.
I'd like a copy, please.
(Ending time: 6:25 p.m.)
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I, the undersigned, a Certified Shorthand
Reporter for the State of California, do hereby certify:
That prior foregoing proceedings were taken
before me at the time and place herein set forth; that
any witnesses in the foregoing proceedings, prior to
testifying, were placed under oath; that a verbatim
record of the proceedings was made by me using machine
shorthand which was thereafter transcribed under my
direction; further, that the foregoing is an accurate
transcription thereof.
I further certify that I am neither financially
interested in the action nor a relative or employee of
any attorney of any of the parties.
IN WITNESS WHEREOF, I have this date subscribed
my name. 0
Dated: F�B 2 5 2009
La"uYa A. Millsa , RPR
CSR No. 9266
OR 0363
OR 0364
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PUBLIC HEARING - 2/12/2009
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33:2,22
34:24
35:10
45:10,14
46:14
71:21 80:5
82:21
83:11,11
92:19
usually
104:25
PRECISE REPORTING SERVICE
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Page 28
utterly 19:4
V
vacant 69:15
vacation
27:7 33:21
59:14
103:19
vacationers
45.15
valuable
40:18
45:19
'value 80:19
values33:17
33:20
Ivana65:16
65:18,18
variation
22:24 31:9
variety
12:14
various
40:17
56:10
vehicles
50:11,13
50:16
62:15
verbal 97.13
verbatim
106:9
Verdugo74 :2
74:6,6
94:13
verified
49:3
versus24:16
56:9 61:4
vested65:6
97:22
102:14
vests 97:24
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42:21 43:4
viewed42.8
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36:14
54:14 63:3
71:16 83:8
83:16,24
84:17
92 :12
virtually
98:6
visit 61:22
visiting
88:11
voicing
61:12
W1:9 4:6
wait 69:1
walk 15:10
55:2 61:2
72:24
walking 25:6
30:8 57:17
75:12
89 :19
wall 11:10
68:20
69:22,23
69:25 78:1
87:17
walls 26:5
want 8:7
10:14
20:25 21:5
34:23
38:19
43:10 47:3
49:15
53:21 55:5
PUBLIC HEARING - 2/12/2009
63:9 65:2
68:24
69:19,25
70:2,8
71:14
74:22 75:8
7 6: 14 78:5
78:24
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48:12 49:5
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81:6 93:15
94:13
103:2
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46:12
wants 15:9
73:17
warranted
36:18
warrants
43:18
wasn't94 :16
waste55:5
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waving74:19
way 9:24
11 :16
12 :16,23
13:6 22:23
29:21
30:25
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43:13
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69:20
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85:16
91:16
92:18
94:23
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100 :14
104:25
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wealthy
76:13
Weatherholt
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Web 38:25
week 49:25
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87:5
103 :18
weekday 85:5
weekdays
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weekend
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60:23
weekends
65:21
weekly 56:21
weeks16:21
16:25
17:25
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103:13,17
104:15
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weighted
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welcome
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76:20 77:9
81:17
83:13 86:1
PRECISE REPORTING SERVICE
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Page 29
87:20,21
95:7,22
96:3,7
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101:2,22
101:25
102:5
104:15
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82:24 98:7
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wife's70:6
wild100:21
willing 9:7
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51 :12
76:15
87:19,20
100:16,19
100:24
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70:12,14
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word12:9
89:11
96:12
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words 57:10
wordsmith
12:8
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32:7 37:25
41:3,9,18
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97:9
100:24
101:23,25
102:10
104:25
workable
102:11
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working
13:21
works 99:11
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workup 90:6
PUBLIC HEARING - 2/12/2009
world 69:19
worse 14:13
14:13
45:10
worth97:5
worthwhile
80:5
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wouldn't
10:15,18
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51:2 56:1
60:16 61:4
65:8 66 :25
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60:13
PRECISE REPORTING SERVICE
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Page 30
1129 33 :4
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37:11
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PUBLIC HEARING - 2/12/2009
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PRECISE REPORTING SERVICE
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Page 31
OR 0395
■ Agenda Item #3. —Ocean Recovery, 16oi West Balboa Boulevard
• Use Permit Hearing
• Brief Background on Ordinance 20o8 -05 (Dave Kiff)
• Presentation of the 16o1 West Balboa application (Debbie Linn)
• Public Hearing Opened
• Comments limited to 3 minutes unless Hearing Officer determines otherwise
• Public Hearing Closed
• Applicant can return to rebut or clarify comments made
• Questions from the Hearing Officer to the applicant orto City Staff
• Hearing Officer's determination — alternatives are:
• Approve with conditions;
• Deny; or
• Continue the hearing to a date certain
■ Agenda Item #z —Ocean Recovery,13.15 West Balboa Boulevard
• Same process, separate public hearing.
0
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This is a Use Permit hearing held under NBMC Chapter 2o.gi.(A) — Use
Permits in Residential Districts
■ Ordinance 2008 -oS, effective
■
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February Zz, 20o8, calls out this process:
• Most existing group residential uses had to apply for a Use Permit to stay in
operations by May 22, 20o8.
• A Hearing Officer shall make a determination to approve or deny the Use
Permit.
• The Hearing Officer's decision can be appealed to the City Council.
• The City Council's decision may not be appealed, but "reasonable
accommodation" may be requested. RA requests go before a hearing officer
at a public hearing, and can be appealed to the City Council.
ir Ordinance 2oo8 -oS exempts one type of home from the Use Permit
requirement— ADP - licensed treatment homes:
• Housing six or fewer persons, and
• Which do not operate integrally with other facilities ( "Integral Facilities ").
US District Court Judge James Selna in May 20o8 blocked the City from
requiring networked ADP - licensed 6 and Unders from going through the
Use Permit process (SLBTS).
AI,
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Ocean Recovery
Ib91'l MR&Ibba*
Item xS -LOCrIyom
— MarcononSouthern CaWoy1H, 5810W oro,av
etc QWen from (Gated hn ebat¢ment 2.203h) —IDST ateay.
harlhesc
N>akelkat lnt"Y 3d-W -1327 Wes, SWoba -2004• .
.pmt ona1iPhO"� ° ra[e wtlet)- 115 Easr u ^Sur,- 4ss>,wY
'CRAst Church O�"emsseo day (kahblkbe�raCe�s) 8105 Ease SS"Seteet -747 away
hfadna Vasrk Tot Los p510 Westnsatooa 4qa West Balooe —SIry •K'W
35lYbepY
SUBJECT PROPERTY. 1601 WEST BALBOA (OCEAN RECOVERY)
FINDINGS REQUIRED TO APPROVE THIS GROUP RESIDENTIAL USE PERMIT
K•Accomsect-M ~tbeftfireSaW.Generally 1, this ralant Rem wtt.VA callmord? wcmditbn,Affvfflthl3h)%dingt0b~
M
�2
v
rn -
TiutlmwendpropomdwrAhiowvAllabtheetobe Beds capped a 14.
consistent with the General Men and notbe detrimental to • "cassambty'am
pu rc healds, saw, powoN morals, comfort. " wel" or f4a. • Restore PMM for parking — firnit prap war for pm*ft
persons le"IM in Gr3dje0u, to d1d nek;;kborhMd ofth6 lft� thirstriff, transport van, visitors,
and wontbe daukrAnW to the properties or brcipmwernant; In (meommaynotht""m
tle vidntry or pe the gener;d wdbm at the My,
420910.35—A3.
§20MA35—A,4.
§20910.06 0 -A
620.910.0.60-8
§20,910.X00—C
no
12C1.910.060-0 I llso will be carnpa2lble %Ah the character of the nebMarbood y".
and wowt creall, an Pyermnceotraden of rood"Aill sent uums.
020.91AM—E
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• Declining home values. The belief that the presence of recovery facilities is any more
impactful on property values than changes in the housing market, long -term rentals,
vacation rentals, or other non - single family uses has been challenged nationwide.
• Ocean Recovery's clients' participation (or lack thereof) in the Saturday Qa 9:3o a.m.
Narcotics Anonymous ( "NA ") meetings at 151h Street. Ocean Recovery has consistently said
that its residents do not attend that meeting.
■ Allegations that recovery homes are a cost burden to the City. There is no evidence to
suggest that recovery homes cost the City any more in services than a typical multi - family
building housing the same amount of people, whether that is in police or emergency
medical calls for service or trash collection.
• Allegations that this specific use at =3.5 West Balboa is too close to Newport Elementary
School. This use is roughly 74o' away from Newport Elementary School. While the NBMC
( §20.9aA.o6oD.a..) allows the hearing officer to consider "the proximity of the use location
to schools, parks, other residential care facilities, outlets for alcoholic beverages and any
other uses which could be affected by or affect the operation of the subject use (emphasis
added)," there is no evidence on the record that Newport Elementary — at 75o' away —
affects or is affected by this specific use.
■ General comments about recovery homes citywide, without directing specific comments to
o the operation at:L=5 West Balboa.
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■ Summary of property, use
■ Staff Recommendation:
■ Approve with conditions, including:
• s4 -bed limit (due to staff concerns about possible
inability to manage a facility with 22 beds)
• Cease assembly uses;
• Correct code violations (garage conversions)
• Review sooner than typical UP — 6 months.
• More.
0
A
0
A
SUBJECT PROPERTY: 1115 WEST BALBOA (OCEAN RECOVERY)
FINDINGS REQUIRED TO APPROVE THIS GROUP RESIDENTIAL USE PERMIT
4209L035 -A.1.
7hrt tM rae me pmpased mrdkmna wip dlow Me rcem tz
aemlm m,hh the General Hen and notbe eetrimainlla
42091035 -A.2. puMche+dth,s�ety peao, morah, contort,"Wdraed
peswrieteddeyM os aejaorrt tadxw{�hoaimeaFdq uce,
and won4 be aelAmertbl t a the pmpetde ar brlpraannorts M
the ridnity ormtho gmml weRme of the My.
MSL035 -0.3.
WD9L035 -A.9.
420- "AAe0•A
0=93A.060 -9
42o.9xA.DeD -D
420910.060 -D IUse wlA0e t0mpatmla witfi the durec0erofthe nel�borhwe
ene woKtwp sn'eserrarKeritndon orroslemWl on uwa.
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Os
• gads capped at x4.
• No assearWyroai
No. ' Restma garagm for parWng- Ihek prW use forporking
for staf f, In rwPM een, sbkars.
• Pierrtcmrynot heuecan
• Vmpid•ependdrap.aff Wme.
• Ilse Pemdt nviwrx sraW N7991A35.ii
No
ye;prvdedabate soaenm eWMicfararhigjm en0otermmg anrewkh coiBew¢.
wfth nearby 6,oup ResldedW Um Fo he sulanittatvftcomplbno sport by COee
Fnfamr,r arcemerr� the Neniag ORFareaddeetermMe roruwix
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■ Allegations made that are specific to this property, which may indicate
an inability to manage 3.3.3.5 West Balboa in a manner that is respectful of
the neighborhood's peace and quiet enjoyment. Specifically:
• Threatening, confrontational, or age - inappropriate interactions of clients with
neighbors;
• Excessive profanity, especially when youth are nearby;
• Excessive noise, as well as noise late at night;
• Poor and inappropriate responses from clients when neighbors attemptto
remedy bad interactions, noise concerns, or profanity by themselves;
• Excessive second -hand smoke, more than one would expect if the facility held
an identical amount of persons not in recovery;
• Trash problems — odor, vectors, cans placed too early and removed too late;
• Curfew violations; and
• An apparent lack of adequate on -site supervision.
0
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