HomeMy WebLinkAbout09 - Newport Coast Recovery Staff ReportCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 9
October 27, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Office of the City Attorney
David R. Hunt, City Attorney
949/644 -3131 or dhunt @city.newport- beach.ca.us
SUBJECT: Appeal of Hearing Officer's Denial of Use Permit and Reasonable
Accommodation — 1216 West Balboa Boulevard (Newport Coast Recovery, LP)
(PA2008 -104)
• Use Permit, UP 2008 -033
• Reasonable Accommodation, RA 2009 -009
ISSUE:
Did substantial evidence support the Hearing Officer's denial of Newport Coast Recovery, LP's
( "Newport Coast Recovery") application for a use permit and for reasonable accommodations,
and, if not, what action should the City Council take pursuant to Newport Beach Municipal Code
section 20.91A.040 and 20.98.025?
RECOMMENDATION:
Staff recommends the City Council determine whether substantial evidence in the record supports
the Hearing Officer's decision to deny Newport Coast Recovery's applications for the use permit
and reasonable accommodations.
If the City Council determines that substantial evidence supports the denials, the City Council
should sustain the decisions of the Hearing Officer.
If the City Council determines that substantial evidence in the record does not support any of the
denials, the City Council must then choose between one of three possible actions:
1. Reverse the Hearing Officer's decision and authorize the issuance of a use permit or one
of the requested reasonable accommodations to Newport Coast Recovery, subject to such
conditions the City Council determines are appropriate based upon the evidence in the
hearing record; or
2. Modify the Hearing Officer's decision denying the use permit and /or reasonable
accommodation to Newport Coast Recovery based upon the evidence in the hearing
record; or
3. Remand the matter to the Hearing Officer for further consideration, which remand shall
include direction either to consider specific issues, or to conduct a de novo hearing on
whether to grant, conditionally grant, or deny a use permit and /or reasonable
accommodation to Newport Coast Recovery.
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
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October 27, 2009
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If the City Council determines the Hearing Officer's findings are not supported by substantial
evidence and directs action be taken based upon choosing one of the three options above, staff
recommends that a resolution be prepared setting out the determination of the City Council and
the findings supporting that determination, and that the resolution be brought back for approval
and adoption as the City Council's final decision on the matter.
BACKGROUND:
Newport Beach Ordinance No. 2008 -05 requires group residential uses that were in existence
prior to February 22, 2008, and were not in conformity with the provisions of Ordinance No. 2008-
05 to apply for, and receive, a Use Permit in order to continue the nonconforming use at their
current location. (Newport Beach Municipal Code ( "NBMC ") section 20.91A.020) Alternately,
group residential uses housing disabled individuals may apply for exceptions from the provisions
of the NBMC as a reasonable accommodation. (NBMC Chapter 20.98) All existing group
residential uses subject to this requirement must have either received a use permit by February
22, 2009 or be within the administrative process in order to remain in operation past that date.
(NBMC section 20.62.090)
1. Newport Coast Recovery's Use.
Newport Coast Recovery operates an alcohol or drug abuse recovery and treatment facility
licensed by the state to treat up to 29 men at 1216 West Balboa Boulevard. This use was in
operation at the time the City enacted Ordinance No. 2008 -05. The facility is located in a seven -
unit apartment building that was constructed in 1949 when the property was zoned R -3. The
property was reclassified from R -3 to R -2 zoning in 1989 along with other properties in the area
via enactment of Ordinance No. 89 -24. As a result, the subject structure is legal nonconforming
and may continue at its location subject to the provisions of Chapter 20.62 of the NBMC
(Nonconforming Structures and Uses.)
NBMC Section 20.91A.020 requires nonconforming uses (as opposed to structures) in residential
districts that were rendered nonconforming by the adoption of Ordinance No. 2008 -05 to apply for
and receive a use permit to continue operation at their current locations. Newport Coast
Recovery became a nonconforming use following adoption of Ordinance No. 2008 -05 because it
is a Residential Care Facility, General- Licensed, located in a residential district zoned R -2 (Two -
Family Residential) where, under Ordinance No. 2008 -05, such uses are not permitted or
conditionally permitted. Newport Coast Recovery applied for a use permit within the time period
required by Ordinance No. 2008 -05.
2. Use Permit Application and Hearing.
Newport Coast originally submitted its application for a use permit on May 20, 2008. The
application was not fully complete at the time of the initial hearing of the application held on
December 8, 2008. Staff recommended a continuance of the hearing to allow the applicant to
complete the application. The Hearing Officer continued the hearing to January 12, 2009 after
taking testimony.'
'The full record of all Newport Coast Recovery use permit and reasonable accommodation proceedings at
the Hearing Officer level is submitted to the City Council as Attachment 1 to this report, referred to as the
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
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October 27, 2009
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The continued hearing was conducted as scheduled on January 12, 2009. At that time, the
application was complete. Staff recommended the Hearing Officer grant the use permit subject to
the proposed conditions, which established strict operating standards and limited the facility's
occupancy to 14 beds. (HR, NCR UP /RA 00562 - 00565)
3. First Hearing Officer Action.
At the public hearings in December and January, the Hearing Officer heard testimony from City
staff, the applicant, and the public. At the January 12, 2009 hearing, the Hearing Officer denied
the application and directed staff to prepare a Resolution of Denial of the use permit, stating that
he could not make key findings relating to the preservation of the neighborhood's residential
character and overconcentrabon. (HR, NCR UP /RA 00614 - 00622)
The Hearing Officer considered the proposed resolution at a hearing on January 22, 2009. (HR,
NCR UP /RA 00688 - 00694) The resolution, subject to finalized wording, was approved by the
Hearing Officer at that hearing. (HR, NCR UP /RA 00688- 00694) The Resolution of Denial was
executed on February 4, 2009. (HR, NCR UP /RA 00714)
4. First Appeal of Hearing Officer Action.
On February 11, 2009, Newport Coast Recovery filed an appeal of the Hearing Officer's decision
for consideration by the City Council. (HR, NCR UP /RA 00129)
a. After - Acouired Evidence
While Newport Coast Recovery's appeal to the City Council was pending, staff was
made aware of new information about the operations of Newport Coast Recovery. On
March 25, 2009, the City Manager's Office received a complaint from a resident of
Nevada, who reported that she had enrolled her minor son as a resident client at
Newport Coast Recovery at 1216 West Balboa Boulevard in Newport Beach, and was
not satisfied with the treatment he was receiving or the treatment environment. She
reported she had concurrently assisted in enrolling her son's friend, also a.minor, at
the same facility.
After she was informed by City staff that Newport Coast Recovery was not authorized
or licensed by either the California of Alcohol and Drug Programs ( "ADP ") or the
Department of Social Services ( "DSS ") to treat minors, the complainant removed her
son from Newport Coast Recovery on or about March 29, 2009. Her son's minor
friend remained at the Newport Coast Recovery facility.
On March 31, 2009, the mother of the minor remaining at Newport Coast Recovery
called the. Office of the City Attorney and requested assistance in locating her son.
City Attorney and City Manager staff worked with the Newport Beach and Costa Mesa
Police Departments to locate the minor, who had been placed by Newport Coast
Recovery staff in a sober living home for adult males in Costa Mesa after a relapse.
"Hearing Record" Each page of the Hearing Record is numbered consecutively beginning with HR, NCR
UP /RA 00001. References to the Hearing Record are denoted at "HR ", with the Bates stamp page number.
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
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Costa Mesa Police Department officers reported that the minor was scheduled to
return to Newport Coast Recovery that night. However, Newport Coast Recovery staff
declined to accept the minor's return, stating that they were unauthorized to treat
minors. The minor's mother removed him from the Costa Mesa sober living facility on
April 1, 2009. (HR, NCR UP /RA 00095 - 00098)
On April 1, 2009, Department of Social Services Complaint Officer Michael Valentine
investigated the allegations and confirmed that Newport Coast Recovery had provided
unlicensed care and supervision of minors at 1216 West Balboa Boulevard. He issued
a Notice of Operation in Violation of Law to Newport Coast Recovery for housing
minors without a required license. (HR, NCR UP /RA 00016 - 00018)
b. City Council Action on Appeal.
On April 14, 2009, the City Council heard Newport Coast Recovery's appeal of the
Hearing Officer's denial of its use permit application. Staff and the City's counsel
made a proffer of the after - acquired evidence. The City Council remanded the use
permit application matter to the Hearing Officer for a new hearing, with direction to
consider his prior decision in light of the after - acquired evidence. (HR, NCR UP /RA
00070- 00071)
5. Application for Reasonable Accommodation.
On April 7, 2009, while Newport Coast Recovery's use permit appeal was pending, Newport
Coast Recovery filed an Application for Reasonable Accommodation with the Newport Beach
Planning Department. (HR, NCR UP /RA 00060 - 00067) The applicant submitted two alternate
requests for accommodation:
An exemption from the portions of NBMC Section 20.10.020 (Residential Districts: Land
Use Regulations) that require Residential Care Facilities, General to be established only
in residential districts zoned Multi - Family Residential (MFR) with a use permit, subject to
the operational conditions recommended by City staff in the January 12, 2009 staff report
for Use Permit No. 2008 -33, including a maximum occupancy of 14 residents, which was
denied by the Hearing Officer,
or, in the alternative.
An exemption from the requirements specified in NBMC Section 20.91A.050
(Development and Operational Standards), including:
• A waiver of the occupancy restriction of two persons per bedroom plus one staff member,
and to allow a total occupancy of 18 residents;
• An exemption from the parking requirements of one off - street parking space for each
three resident beds, as specified in NBMC Section 20.66.030 (Off - Street Parking and
Loading Requirements) for Residential Care, General use classifications, and to apply the
off - street parking requirements applicable to Two - Family Residential (R -2) use
classifications which requires two off- street parking spaces per dwelling unit;
• Treat the use of the licensed residential care facility as a legal nonconforming use;
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
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October 27, 2009
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Apply the California Building Code provisions that were applicable at the time the
residential care facility was established as relates to life and fire safety matters; and
A waiver of the required finding specified in NBMC Section 20.91A.060 (D), relative to the
compatibility of the use with the character of the surrounding neighborhood, which
requires a finding that the continued use will not contribute to the changing of the
residential character of the neighborhood, such as creating an overconoentration of
residential care uses in the vicinity, and waiving the impact analysis contained in the
Factors A through C which the Hearing Officer must consider in making or sustaining the
finding with regard to the proximity of the use to schools, churches, playgrounds, day
care centers, and alcoholic beverage outlets, and the application of the American
Planning Association standard of permitting one or two such uses per block.
Finding these requests to be ambiguously worded and, in some cases, contradictory, staff and
outside counsel requested that Newport Coast Recoverys counsel clarify its requests for
accommodation. (HR, NCR UP /RA 00081 - 00082, 00086) Newport Coast Recoverys counsel
declined to do so. (HR, NCR UP /RA 00084, 00087- 00088)
6. Use Permit and Reasonable Accommodation Hearings.
At the applicant's request, the hearing for Newport Coast Recovery's reasonable accommodation
requests was scheduled on the same day as Newport Coast's remanded use permit hearing. The
hearings for Newport Coast Recovery's use permit and reasonable accommodation requests
were held on July 7, 2009.
At the July 7, 2009 hearing, staff made the following recommendations:
(1) Deny the use permit based on an inability to make a finding that Newport Coast Recovery
operates in compliance with state and local law, pursuant to NBMC section 20.91A.060(A);
and
(2) Deny both requests for accommodation, based on the findings discussed in the July 7,
2009 staff report.
At the July 7, 2009 hearing the Hearing Officer heard testimony from City staff, the applicant's
counsel, and the public. Public testimony included testimony from parents of the two minors who
had been admitted to Newport Coast Recovery while the use permit appeal was pending before
the City Council. One parent appeared and testified in person, and another testified
telephonically. One of the minors admitted.to the facility also appeared personally, and with his
mother's consent made himself available to answer questions from the Hearing Officer. (HR, NCR
UP /RA 00870 - 00875, 00881 - 00884, 00950 - 00952)
After hearing the public testimony and arguments from the City and the appellant's counsel, the
Hearing Officer indicated that he was inclined to affirm his denial of the use permit, based on his
prior determination that granting the use permit would result in an overconcentration of similar
facilities in the area.
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
1216 West Balboa Boulevard (Newport Coast Recovery)
October 27, 2009
Page 6
After public testimony and arguments from the City and Newport Coast Recovery's counsel at the
reasonable accommodation hearing, the Hearing Officer indicated he was inclined to deny both
alternate requests for accommodation, also on the basis of overconcentration. (HR, NCR UP /RA
00960 - 00961) However, the Hearing Officer said that if Newport Coast Recovery could show that
it offered a compelling, unique service not available elsewhere in the mid - Peninsula area, that
could overcome his inclination to deny the reasonable accommodation. (HR, NCR UP /RA 00962)
To fully address issues raised during the reasonable accommodation hearing, the Hearing Officer
requested that the City and the applicant each provide supplemental written briefing on several
issues as follows (HR, NCR UP /RA 00962):
• The Hearing Officer asked the City and the applicant to address issues raised by the
appellant's counsel regarding the City's Housing Element, Consolidated Plan, and Community
Development Block Grant (CDBG) applications. The appellant's counsel had produced a
collection of City documents at the hearing, which he said indicated a community need for the
services of facilities such as Newport Coast Recovery. The Hearing Officer required a more
complete explanation of the documents, to determine whether they demonstrated the
necessity of accommodations to provide housing and services to the disabled. (HR, NCR
UP /RA 00957 - 00958)
• The Hearing Officer permitted briefing by the City on whether Newport Coast Recovery's two
documented violations of state licensing laws created a "pattern and practice" of violating the
law. (HR, NCR UP /RA 00958)
• Finally, the Hearing Officer permitted briefing by Newport Coast Recovery to discuss and
provide documentation for its assertions that Newport Coast Recovery provided a unique
service as the only men's primary care facility within the City. Newport Coast Recovery's
counsel had argued that accommodation was necessary to provide housing and services to
the disabled, because it provided a unique service to the disabled as the only men's facility in
the City that could accept patients with only 72 hours of detoxification. (HR, NCR UP /RA
00961)
The Hearing Officer directed that the supplemental briefings be submitted to him within two
weeks, and stated that he would make his final determination in writing after review and
consideration of the briefings. (HR, NCR UP /RA 00963- 00965)
On July 21, 2009, two weeks from the date of Newport Coast Recovery's July 7 hearing, the
City's outside counsel submitted the requested supplemental briefing to the Hearing Officer and
opposing counsel. (NCR, HR UP /RA 01001 - 01007) The City's briefing discussed the meaning of
"pattern or practice" of violating state or local law as described in the NBMC, and clarified that
NBMC section 20.91A.050(8) required that facilities in Newport Beach be operated in compliance
with state and local law in order for a required finding to be made before a use permit can be
issued. The City's briefing also addressed the significance of City documents that the applicant's
counsel produced at the July 7, 2009 hearing, including documents taken from the City's
application for federal CDBG funding and the City's annual performance report to HUD, and
assertions by the applicant's counsel that the City's Housing Element is not in compliance with
state law. The City's briefing included a declaration from Assistant City Manager Sharon Wood
further explaining the significance of the documents submitted by the applicant's counsel at the
July 7 hearing. (HR, NCR UP /RA 01005 - 01007)
Appeal of Hearing. Officer's Denial of Use Permit and Reasonable Accommodation
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Newport Coast Recovery's counsel submitted his supplemental briefing a week past the deadline
established by the Hearing Officer, on July 29, 2009. (HR, NCR UP /RA 01009- 01042) This
briefing addressed the state's. jurisdiction in the licensing of alcohol and drug recovery and
treatment facilities, and staffs analysis of the elements of "necessity," "equal opportunity" and
"reasonableness." The briefing also addressed the requested topic of the City s Housing Element
and Consolidated Plans, and responded to the City briefing's explanation of these documents.
The appellant's briefing did not address the question of whether Newport Coast Recovery was
licensed to serve as a primary care facility, or whether it was the only men's facility in the City
licensed to provide primary care services.
The City objected to Newport Coast Recovery's late filing of its supplemental brief. In its
objection, the City noted that Newport Coast Recovery's attorneys used the additional eight days
to review and rebut the arguments set forth in the City's supplemental brief, an opportunity the
City did not have. (HR, NCR UP /RA 01044 - 01045) The Hearing Officer accepted Newport Coast
Recovery's late filing, but gave the City five days in which to submit a response to issues raised in
Newport Coast Recovery supplemental brief. (HR, NCR UP /RA 01047) The City submitted its
reply briefing within five days, on August 7, 2009. (HR, NCR UP /RA 01049 - 01062)
7. Hearinq Officer Action and Appeal.
On August 18, 2009, the Hearing Officer issued a written order that denied the applicant's
requests for reasonable accommodation. (HR, NCR UP /RA 01064 - 01070) The Hearing Officer
determined that he could not make the three of the findings required to grant the reasonable
accommodations, and directed staff to prepare a Resolution of Denial for his review and adoption,
with findings consistent with the staff report and testimony presented at the hearings.
Specifically, the Hearing Officer determined that he could not make a finding that the requested
accommodation was necessary to afford disabled individuals an equal opportunity to use and
enjoy a dwelling. The Order of the Hearing Officer stated that this decision was based on the
analysis in the staff report, as well as evidence presented by staff and the public of alternate
similar housing opportunities offering the same therapeutic benefit in the immediate vicinity and
surrounding area. The Order also noted that the applicant had contended at the hearing that it
provided a unique service as the only all -male residential primary treatment facility, and had
requested that the record be left open so that it could provide further evidence of this in
supplemental briefing. However, the applicant did not provide further information or evidence.
Therefore, the Hearing Officer concluded that Newport Coast Recovery does not provide a unique
or specialized value to the disabled in the community that is not generally available in other
similar facilities in the Balboa Peninsula area. (HR, NCR UPiRA 01066 - 01067)
The Hearing Officer also determined that he could not make a finding that the accommodation
requests were reasonable, because granting the requests would result in a fundamental alteration
to the City's zoning program. The Order cited the purposes enumerated in NBMC section
20.91A.010, particularly those concerning overconcentration, and noted that a primary therapeutic
benefit for those in recovery is integration into residential settings within the community. The
Order discussed the flexible standards for analysis and evaluation of overconcentration and
institutionalization of a neighborhood specified in Ordinance No. 2008 -05, and how those flexible
standards should be applied to afford disabled individuals an equal opportunity to reside in a
neighborhood while preventing institutionalization. The Hearing Officer found that granting the
requested accommodation would result in an overconcentration of facilities in the immediate area
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
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October 27, 2009
Page 8
of Newport Coast Recovery's facility, and would therefore undermine the purpose of the City's
zoning scheme. (HR, NCR UP /RA 01067- 01068)
Finally, the Hearing Officer determined that the requested accommodation would impose an
undue financial or administrative burden on the City. The Order cited the testimony of numerous
residents in the. vicinity of Newport Coast Recovery who testified that the facility's operations had
required administrative and code enforcement staff time in the past. In addition, the Order cited
City staff testimony of administrative staff and Police Department time assisting complainants
about the facility's operation, and locating one of the minors entrusted to Newport Coast
Recovery's care. The Order of the Hearing Officer also cited the Notice of Operation in Violation
of Law issued by the Department of Social Services to Newport Coast Recovery on April 1, 2009
as evidence that supported a finding that the applicant did not operate its facility in accordance
with applicable law, and that granting the accommodation would place an undue administrative
burden on the City. (HR, NCR UP /RA 01068 - 01069)
Staff prepared Resolutions of Denial for Newport Coast Recovery's use permit application as well
as each alternate reasonable accommodation request, which were signed by the Hearing Officer
on September 17, 2009. (HR, NCR UP /RA 01086 - 01118)
On September 26, 2009, the applicant filed timely appeals with the City Clerk for City Council
review of the Hearing Officer's denial of its use permit and two alternate reasonable
accommodation requests, as allowed by NBMC sections 20.91A.040 and 20.98.025. A copy of
the appeals is attached to this report as Attachment 2.
DISCUSSION:
Appeals of Hearing Officer decisions on reasonable accommodation requests, as well as appeals
on use permits in residential districts, are heard by the City Council. (NBMC sections 20.91A.040
and 20.98.025.) Appeals from a Hearing Officer's decisions on use permits in residential districts
and reasonable accommodation applications are subject to the "substantial evidence" standard
under the Municipal Code. On appeal, the City Council reviews the administrative record from the
Hearing Officer's previous proceedings, and determines whether the Hearing Officer's decision
was supported by substantial evidence in the record. If the Hearing Officer's decision is
supported by substantial evidence, it must be sustained by the City Council. If the Hearing
Officer's decision is not supported by substantial evidence, the City Council may reverse, modify
and/or remand the matter to the Hearing Officer.
1. Standard of Review — Use permits in districts zoned for residential uses, and
reasonable accommodations.
NBMC Chapters 20.91A and 20.98 establish procedures for approval, conditional approval or
disapproval of use permits in residential districts and requests for reasonable accommodation.
These chapters of the Municipal Code do not give the City Council the authority to address the
issues "de novo," as the City Council would when reviewing decisions of the Planning
Commission under NBMC sections 20.91.060 and 20.95.060.
When considering permits for uses conditionally permitted in residential districts such as this one,
and requests for reasonable accommodations, NBMC Chapters 20.91A and 20.98 establish the
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
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October 27. 2009
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City Council's standard of appellate review. Unlike procedures for appeals for use permits
approved, conditionally approved or disapproved by the Planning Commission, NBMC section
20.91A.040 states:
Decisions of the Hearing Officer may be appealed to the City Council.
Notwithstanding Section 20.95.060, the standard of review shall not be de novo
and the City Council shall determine whether the findings made by the Hearing
Officer are supported by substantial evidence presented during the evidentiary
hearing. The City Council acting as the appellate body may sustain, reverse or
modify the decision of the Hearing Officer or remand the matter for further
consideration, which remand shall include either specific issues to be considered
or a direction for a de novo hearing.
(NBMC section 20.91A.040 [Italics added].)
Similarly, NBMC section 20.98.025(A) provides in part:
... notwithstanding Section 20.95.060, the standard of review on appeal shall not be de
novo and the City Council shall determine whether the findings made by the Hearing
Officer are supported by substantial evidence presented during the evidentiary hearing.
The City Council, as the appellate body, may sustain, reverse or modify the decision of the
Hearing Officer or remand the matter for further consideration, which remand shall include
specific issues to be considered or a direction for a de novo hearing.
(NBMC section 20.98.025.A [Italics added].)
a. The "substantial evidence" test and abuse of discretion.
When reviewing the decisions of a Hearing Officer on use permits and reasonable
accommodation applications, the City Council is therefore required by NBMC sections 20.91A.040
and 20.98.025 to apply the "substantial evidence test." As discussed above, this means that the
Council shall uphold the decision of the Hearing Officer if there is substantial evidence in the
hearing record as a whole to support the decision the Hearing Officer made. Thus, the inquiry for
the City Council is whether the Hearing Officer abused his discretion when he denied the
applications for the use permit and the accommodations.
The concept of "abuse of discretion" is well defined in the law. In finding abuse of discretion, the
City Council shall consider whether the Hearing Officer's action was arbitrary, capricious, in
excess of his jurisdiction, entirely lacking in evidentiary support, or without reasonable or rational
basis as a matter of law. A prejudicial abuse of discretion is established if the Hearing Officer did
not proceed in a manner required by law, or if his findings are not supported by substantial
evidence in the record. (Sierra Club v. County of Napa (2004) 121 Cal.App.4 h 1490, 1497.)
City staff, the applicant and members of the public may make comments regarding this issue at
the City Council's hearing on the appeal. However, in making its determination, the City Council
is limited to a review of the hearing record from the proceedings below. It may neither substitute
its views for those of the Hearing Officer, nor reweigh conflicting evidence presented to him. The
decisions of the Hearing Officer are given substantial deference and are presumed correct. (Id.)
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
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October 27, 2009
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The party seeking review (in this case, the applicant) bears the burden of showing that the
Hearing Officer's decisions are not supported by substantial evidence in the record and the City
Council "must resolve reasonable doubts in favor of the administrative findings and
determination." (id.)
"Substantial evidence" means "enough relevant information and reasonable inferences from this
information that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached." 121 Cal.App.0 at 1498. Such substantial evidence may
include facts, and expert opinions supported by facts, but not argument, speculation,
unsubstantiated opinion, or clearly erroneous evidence. (ld.) Although facts in the hearing record
might lead the City Council to a conclusion different from the Hearing Officer's, the City Council
may not overturn the Hearing Officer's decision on the grounds that an opposite conclusion based
on the same set of facts would have been equally reasonable or more reasonable. It also may
not weigh conflicting evidence and determine which side has the better argument. Instead, it
must resolve all reasonable doubts in favor of the administrative finding and decision reached by
the Hearing Officer. (Berkeley Keep Jets Over the Bay Committee v. Board of Commissioners of
the Port of Oakland (2001) 91 Cal.App.4'h 1344, 1356.)
In summary, the City Council may overturn the Hearing Officer's decision only if it finds that there
are insufficient facts, or insufficient expert opinions supported by facts, in the hearing record to
support the Hearing Officer's decision.
b. Was the Hearing Officer's decision supported by substantial evidence?
Staff recommends that the City Council review the administrative record, including the analysis in
staff reports, the transcripts of the hearings, documents submitted by the public and the appellant,
the City's and appellant's supplemental briefings, and the Order of the Hearing Officer. After
review, the City Council should determine whether the Hearing Officer's decisions that certain
required findings could not be made were supported by substantial evidence.
2. Appellant's Specific Grounds for Appeal.
Appellant Newport Coast Recovery's grounds for appeal of the denial of the use permit are, to
quote Newport Coast Recovery's appeal, "Denial with prejudice of application for a use permit,
HO- 2009 -022." Newport Coast Recovery's grounds for appeal of its reasonable accommodation
requests are, "Denial with prejudice of the request for a reasonable accommodation HO -2009-
023" and "Denial with prejudice of the request for a reasonable accommodation HO- 2009 -024."
Therefore, the City Council should consider whether there is substantial evidence in the record
that supports the Hearing Officer's decision to deny the use permit and reasonable
accommodation requests 2
Appropriate Relief:
2Memoranda from staff who handled the administrative proceedings is attached, arguing the Council should
sustain the hearing officer's decision and deny the appeal. Appellant has been given the opportunity to
submit written argument of the issues (see email dated October 16, 2009 attached) but nothing has been
received to date. We will forward any written submissions from appellant as soon as received.
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
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October 27, 2009
Page 11
Per NBMC sections 20.91A.040 and 20.98.025, the City Council may sustain, reverse or modify
the decision of the Hearing Officer if it concludes that decision is not supported by substantial
evidence. It may also remand the matter to the Hearing Officer for further consideration. If the
City Council remands the matter to the Hearing Officer, NBMC sections 20.91A.025 and
20.98.025 requires that the Council either identify specific issues to be considered or direct that
the Hearing Officer conduct a de novo hearing on the matter.
Environmental Review:
This application has been determined to be categorically exempt under the requirements of the
California Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). This class of
projects has been determined not to have a significant effect on the environment and is exempt
from the provisions of CEQA. The City Council's consideration of this Agenda Item does not
require environmental review.
Public Notice:
This agenda item has been properly noticed as an appeal of a denial of an application for
reasonable accommodation (published in the Daily Pilot and mailed to property owners and
occupants within 300 feet of the subject property 10 days in advance of the hearing date) and in
accordance with the Ralph M. Brown Act (72 hours in advance of the public meeting at which the
City Council considers the item).
CONCLUSION:
Staff requests that the City Council determine whether the decisions of the Hearing Officer should
be sustained or reversed, modified, or reversed with conditions, or remanded for further
consideration. If the City Council reverses or modifies a Hearing Officer decision, staff
recommends that a resolution be prepared setting out and memorializing the City Council's
findings and conclusions, and will bring that resolution back for City Council review, comment,
and adoption at the first available meeting.
Submitted by:
OF-ECE OF THE CITY ATTORNEY
David R. Hunt, City Attorney
Attachment 1: Hearing Record: Proceedings regarding Newport Coast Recovery, LP, and related
documents.
Memo to Hearing Officer from Planning Department dated July 1, 2009 for the July 7,
2009 Public Hearing - with attachments including:
July 7, 2009 use permit staff report
Attachment to use permit staff report— DSS Notice of Operation in Violation
of Law
July 7, 2009 reasonable accommodation staff report (with attachments)
Attachments to July 7, 2009 reasonable accommodation staff report
include:
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
1216 West Balboa Boulevard (Newport Coast Recovery)
October 27, 2009
Page 12
Application for Reasonable Accommodation (PA 2009- 104)(RA 2009 -009)
Minutes of City Council meeting, April 14, 2009
Correspondence with Applicant's counsel
Email from Licensing Division of ADP
Administrative record from May 20, 2008 to April 14, 2009
Memo from City Attorney to City Council addressing after - acquired
evidence
Memo from Assistant City Manager to City Council addressing after -
acquired evidence and related police report
Memo from City Attorney to City Council addressing Applicant's
request for stay of appeal hearing, and related correspondence
Staff report from City Attorney for April 14, 2009 appeal hearing
Hearing Officer's Resolution of Denial of Use Permit
Application for Appeal
Memorandum from Assistant City Manager and Planning
Department for April 14, 2009 hearing
Administrative record as of April 14, 2009
Agenda for December 8, 2008 Public Hearing
Staff report for December 8, 2008 Public Hearing
Exhibits for December 8 staff report include use
permit application, notice of incomplete application,
and resident correspondence
Staff Power Point presentation for December 8, 2008 Public
Hearing
Transcript of December 8, 2008 Public Hearing
Agenda for January 12, 2009 Public Hearing
Staff report for January 12, 2009 Public Hearing
Exhibits for January 12, 2009 staff report include
December 8 staff report and exhibits, and resident
correspondence for January 12 Public Hearing
Staffs Power Point for January 12 Public Hearing
Transcript of January 12, 2009 Public Hearing
Agenda for January 22, 2009 Public Hearing
Correspondence from public for January 22 Hearing
Proposed Resolution of Denial for Consideration at January
22, 2009 Hearing
Revised Resolution of Denial presented at January 22, 2009
Hearing
Staff's Power Point for January 22, 2009 Hearing
Transcript of January 22, 2009 Public Hearing
Resolution of Denial, adopted February 4, 2009
City Attorney letter to City Council, addressing Applicant's request
for continuance of appeal to April 14, 2009
Correspondence submitted between February 4, 2009 and April 14,
2009
Correspondence submitted between April 14, 2009 and July 7, 2009
Agenda for July 7, 2009 Public Hearing
Staff Power Point for July 7, 2009 Public Hearing
Staff Attorney Power Point for July 7, 2009 Public Hearing
Appeal of Hearing Officer's Denial of Use Permit and Reasonable Accommodation
1216 West Balboa Boulevard (Newport Coast Recovery)
October 27, 2009
Page 13
Documents submitted to Hearing Officer prior to close of July 7, 2009 hearing
Transcript of July 7, 2009 Public Hearing
Supplemental letter brief submitted by City
Supplemental letter brief submitted by Applicant
City's objection to appellant's late filing
Hearing Officer's acceptance of late filing, with leave for City to file response
City's response to Applicant's supplemental brief
Order of the Hearing Officer to Prepare Resolution of Denial of Request for Reasonable
Accommodation
Hearing Officer's Resolution of Denial — Use Permit
Hearing Officer's Resolution of Denial — Reasonable Accommodation Request No. 1
Hearing Officer's Resolution of Denial — Reasonable Accommodation Request No. 2
Supplement to documents submitted prior to close of December 8, 2008 Public Hearing
Attachment 2: Applications to Appeal Decision of the Hearing Officer
Attachment 3: Staff Memoranda for October 27, 2009 Appeal
Attachment 4: Email dated October 16, 2009
(A09- 004311 CC staff Report for 10.27.09 Agenda
ATTACHMENT 1
Hearing Record
Public copy available for review at City Clerk's office or online
at www.newportbeachca.gov (Under City Government, Current
Projects & Issues, Group Homes, Resolutions)
Staff Report: Newport Coast Recovery - Appeal of Hearing Officer's Denial of
Use Permit and Reasonable Accommodation
ATTACHMENT 2
Applications to Appeal Decision of the Hearing
Officer
Staff Report: Newport Coast Recovery - Appeal of Hearing Officer's Denial of
Use Permit and Reasonable Accommodation
Brown, Leilani
From: Steven Polin [spolin2 @earthlink.net]
Sent: Saturday, September 26, 2009 12:58 PM
To: Brown, Leilani; pbobko; Wolcott, Cathy; Kiff, Dave
Cc: Chris Brancart; ebrancart@brancart.com; james dee; mnewman198o@,hotmail.com; Dana
(CRT) Mulhauser; paul.e.smith
Subject: appeal of newport coast recovery
Attachments: AppealofHearingOfficersDecision use permit with signature.pdf;
AppealofHearingOfficersDecision reasonable accommodation #1 with signature.pdf;
AppealofHeadngOfficersDecision reasonable accommodation #2 with signature.pdf
Follow Up Flag: Follow up
Flag Status: Flagged
Please find attached signed copies of the notice of appeal from the denial of its use permit application and requests for a
reasonable accommodation. the original of documents are being mailed via first class mail. thank you.
Steven Polin
Steven Polin
Law Office of Steven G. Polin
3034 TennysonStreet, NW
Washington, DC 20015
202- 331 -5848
202 -537 -2986 (fax)
soolin20earthlinlc net
This transmission is protected by the Electronic Communications Privacy Act,
18 U:S.C. Sections 2510 -2521 and intended to be delivered only to the
named addressee(s) and may contain information that is confidential,
proprietary, attorney work - product or attomey- client privileged. If this
information is received by anyone other than the named addressee(s), the
recipient should immediately notify the sender by E -MAIL and by telephone
202- 331 -5848 and obtain instructions as to the disposal of the transmitted
material. In no event shall this material he read, used, copied, reproduced,
stored or retained by anyone other than the named addressee(s), except
with the express consent of the sender or the named addressee(s). Thank you.
CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA2008 -104
Application No.
2008 -033
Name of Appellant Newport Coast Recovery Phone 202- 331 -5848
Site Address 1216 West Balboa Blvd., Newport Beach, CA 92661
Date of Hearing Officers decision September 17 2009
Name of Applicant Newport Coast Recovery
(Description of application filed with Hearing Officer)
Application for a use permit to continue
for
providing residential treatment services to person in recovery from alcoholism and
substance abuse.
Reasons for Appeal Denial with prejudice of the application for a use permit,
HO- 2009 -022
Stevdf "G.Tfo-iin a ��
Signature of Appellant
FOR OFFICIBUSE ONLY:
R ived Fee received
09/26/2009
Date
s
C.NDocu'ments and Settings%sobomy'Local SettingslTemporary Internet Files \Content.OuHoold277DB2P71Appeal of
Hearing Officers Decision.doex
Revised 02 -04-09 jjb
CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA2008 -104
Name of Appellant
Site Address
Newport Coast Recovery
Application No.
2009 -009
Phone 202- 331 -5848
1216 West Balboa Blvd., Newport Beach, CA 92661
Date of Hearing Officer's decision September 17
Name of Applicant
Newport Coast Recovery
(Description of application filed with Hearing Officer)
"EEO
Request for a reasonable accommodation
for
requesting a waiver from the provisions of NBMC 20.10:020 or in the alternative
a waiver from the provisions of NBMC 20.91A.050
Reasons for Appeal _
HO- 2009 -023
Steven
Denial with prejudice of the request for a reasonable accommodation
Signature of Appellant
FOR OFFICE USE ONLY:
Rece ed by
r
GyYy�se py6MnG. PYn
GH aM.h..wi 4 Ar.� A w. lNMI M6
d42omm]B 1ltiAV6�Otm
Fee received
09/26/2009
Date
Date
C:\Documents and Setdngs\sobomy\Local Settingsk1emporary Internet Files \Content.OuHook1277DB2P7ftpeal of
Hearing Officer's Deasion.docx
Revised 02 -04-09 bb
CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA 2008 -104 Application No. 2009-009 #2
Name of Appellant Newport Coast Recovery Phone 202- 331 -5848
Site Address 1216 West Balboa Blvd., Newport Beach, CA 92661
Date of Hearing Officer's decision September 17 2009
Name of Applicant Newport Coast Recovery
for
(Description of application filed with Hearing Officer) Request for a reasonable accommodation
requesting a waiver from the provisions of NBMC 20.10.020 or in the alternative
a waiver from the provisions of NBMC 20.91A.050
Reasons for Appeal Denial with prejudice of the request for a reasonable accommodation
HO -2009 -024
SWen %- P`olin
Signature of Appellant
FOR OFFu-c Jifflac ONLY:
Received Fee received
09/26/2009
Date
q 1�
Dat
C:1Documents and Setfings%obomyUzcal Settingffemporwy IMemet FiieslCon tentOutbok%277DB2P7Wppeal of
Hearing Officer's Dedsion.docx
Revised 02 -04-09 jib
ATTACHMENT 3
Staff Memoranda for October 27, 2009 Appeal
Staff Report: Newport Coast Recovery - Appeal of Hearing Officer's Denial of
Use Permit and Reasonable Accommodation
CITY OF NEWPORT BEACH
MEMORANDUM
TO: Mayor and Members of the City Council
FROM: Catherine Wolcott, Deputy City Attom
Janet Brown, Associate Planner
DATE: October 27, 2009
RE: Newport Coast Recovery (1216 West Balboa) Appeal — Reasonable
Accommodation (PA2008- 104)(RA 2009 -009) Staff Analysis and
Recommendation Regarding Hearing Officer's Decision
On July 7, 2009, the City held a public reasonable accommodation hearing before Hearing
Officer Thomas W. Allen to consider Appellant Newport Coast Recovery, LP's application for
two alternate reasonable accommodations. On August 18, 2009, Hearing Officer Allen issued a
written Order of Hearing Officer to Prepare Resolution of Denial of Reasonable Accommodation.
Subsequently, the Hearing Officer adopted two Resolutions of Denial of Reasonable
Accommodation on September 17, 2009.
The staff report submitted by the Office of the City Attorney for this appeal sets forth the
background of the application process, the public hearing, supplemental briefing submitted by
the parties after the public hearing, and the Hearing Officer's Order to Prepare the Resolution of
Denial. The City Attorney's staff report also discusses the "substantial evidence" standard of
review that Newport Beach Municipal Code (NBMC) Section 20.98.025 establishes for appeals
of Hearing Officer decisions granting or denying reasonable accommodation.
This memorandum focuses on a discussion of evidence in the Newport Coast Recovery
reasonable accommodation hearing's administrative record that supports the Hearing Officer's
decision on September 17, 2009. Staff concludes that there is substantial evidence in the
record to support the Hearing Officer's decision.
I. SUBSTANTIAL EVIDENCE TEST GIVES DEFERENCE TO HEARING OFFICER'S
FINDINGS
Under the substantial evidence test, the Council must uphold the decision of the Hearing Officer
if there is substantial evidence in the record to support the decision that the Hearing Officer
made. If the City Council does not find substantial evidence in the record to support the Hearing
Officer's decision, the City Council may reverse or modify the decision, or remand the matter for
further consideration, which remand shall include specific issues to be considered or a direction
for a de novo hearing. (NBMC §20.98.025(A))
City Hall a 3300 Newport Boulevard a Post Office Box 1768 a Newport Beach, California 92659 -1768
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 2
The City Council is limited on appeal to a review of the record from the proceedings below. It
may neither substitute its views for those of the Hearing Officer, nor reweigh conflicting
evidence presented to him. The decisions of the Hearing Officer are given substantial
deference and are presumed correct. (Sierra Club v. County of Napa (2004) 121 Cal.App.0
1490, 1497.)
The party seeking review (in this case, the applicant) bears the burden of showing that the
Hearing Officer's decisions are not supported by substantial evidence in the record and the City
Council "must resolve reasonable doubts in favor of the administrative findings and
determination." (ld.)
"Substantial evidence" means "enough relevant information and reasonable inferences from this
information that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached." (121 Cal.App.4"' at 1498.)
Although facts in the record might lead the City Council to a conclusion different from the
Hearing Officer's, the City Council may not overturn the Hearing Officer's decision on the
grounds that an alternative conclusion based on the same set of facts might have been equally
reasonable. It may not weigh conflicting evidence and determine which side has the better
argument. Instead, the City Council must resolve all reasonable doubts in favor of the
administrative finding and decision reached by the Hearing Officer. (Berkeley Keep Jets Over
the Bay Committee v. Board of Commissioners of the Port of Oakland (2001) 91 Cal.App.4'h
1344, 1356.)
When reviewing an administrative decision under the substantial evidence test, the reviewing
body considers all relevant evidence in the administrative record, beginning with the
presumption that the record contains evidence to sustain the hearing officer's findings of fact.
(TG Oceanside, LP v. City of Oceanside (2007) 156 Cal.App.4 h 1355, 1370 - 1371.)
WHAT KIND OF EVIDENCE IS CONSIDERED "SUBSTANTIAL EVIDENCE ?"
In general, substantial evidence has been defined as "evidence of ponderable legal significance
...reasonable in nature, credible and of solid value" (156 Cal.App.4'h at 1371.) It has also
been defined as "relevant evidence that a reasonable mind might accept as adequate to support
a conclusion." (ld) (citations and internal quotation marks omitted.) "If the word 'substantial'
means anything at all, it clearly implies that such evidence must be of ponderable legal
significance. Obviously, the word cannot be deemed synonymous with 'any' evidence. It must
be reasonable in nature, credible and of solid value; it must actually be 'substantial' proof of the
essentials which the law requires in a particular case." (DeMartino v. City of Orinda (2000) 30
Cal.App.4'h 329, 336) (internal quotation marks omitted.)
Substantial evidence may include facts, and expert opinions supported by facts, but not
argument, speculation, unsubstantiated opinion, or clearly erroneous evidence. (Sierra Club v.
County of Napa, 121 Cal.App.4`h at 1498.) The testimony of a single witness can constitute
substantial evidence. (Phelps v. State Water Resources Control Board (2007) 157 Cal.App.4"'
89,99)
This memorandum highlights some of the evidence in the record that is consistent with the
standards of substantial evidence established in the court's decisions quoted above. Some of
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 3
the evidence was provided through the written or verbal testimony of members of the public who
had personal experience with Newport Coast Recovery, either as a neighbor or as a client. In
certain matters, City staff testified to direct experience or knowledge of specific facts as well.
The staff reports for the public hearing presented evidence as well as arguments to the Hearing
Officer.
III. SUBSTANTIAL EVIDENCE IN THE ADMINISTRATIVE RECORD SUPPORTS THE
HEARING OFFICER'S DECISIONS
In order for the Hearing Officer to approve or conditionally approve an application for reasonable
accommodation, he or she must be able to make each of the five required findings following a
noticed public hearing. If even one of the five required findings identified in NBMC Section
20.98.025(B) cannot be made, the Hearing Officer must deny the request.
As shown in the two Resolutions of Denial for Newport Coast Recovery, the Hearing Officer
determined that only two of the five findings required by NBMC Section 29.98.025(8) could be
made. This memorandum discusses some of the evidence in the record that supports the
Hearing Officer's decision that the other three required findings could not be made.
The examples of evidence below are in no way an exhaustive list of the substantial evidence in
the record; they are intended solely as an illustration for the City Council of the type of evidence
in the extensive administrative record that support the decisions of the Hearing Officer.
A. NBMC §20.98.025(B)(2) - Finding No. 2: The requested accommodation is
necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling. HEARING OFFICER'S DETERMINATION:
This finding cannot be made.
Discussion:
The Order of Hearing Officer to Prepare Resolution of Denial of Request for Reasonable
Accommodation ( "Decision of the Hearing Officer) (HR, NCR, UP /RA 01064 — 70) stated that
the finding of necessity could not be made.' Staff believes the Hearing Officer largely based his
decision on facts presented in the analysis of necessity in the July 7, 2009 staff report, from
staffs testimony that there were many beds available in licensed recovery facilities offering
similar services and setting on the Balboa Peninsula, and the testimony of a resident at the
public hearing that many similar treatment facilities were nearby. The Hearing Officer's Order
noted that specific substantially similar facilities were identified in the public hearing testimony.
(HR, NCR UP /RA 01066 — 67)
As NBMC Section 20.98.025(C)(4) authorizes the Hearing Officer to consider whether the
existing supply of facilities of a similar nature and operation in the community is sufficient to
provide individuals with a disability an equal opportunity to live in a residential setting, this
evidence was appropriate to consider in determining necessity.
' All references to the administrative record are designated "HR, NCR UP /RA." followed by the page
numbers. The designation means Hearing Record, Newport Coast Recovery, Use PermittReasonable
Accommodation.
Newport Coast Recovery— Appeal to City Council
October 27, 2009
Page 4
The Decision of the Hearing Officer also noted that Newport Coast Recovery's counsel had
argued that Newport Coast Recovery, as an all -male primary treatment facility, offered a unique
recovery environment not available to the disabled elsewhere in the City, but Newport Coast
had been unable to answer staffs questions as to whether the facility actually held that licensing
category. Newport Coast Recovery's counsel asked that the record be left open to submit more
evidence of the unique type of recovery services the facility provided. (HR, NCR UP /RA 00933
—36)
The Hearing Officer's Order stated that although he left the record open to give Newport Coast
Recovery the opportunity to provide additional information, the information was not provided.
This led the Hearing Officer to conclude that Newport Coast Recovery does not provide a
unique or specialized therapeutic value to the disabled in the community, not generally available
in other similar facilities in the Balboa Peninsula area. (HR, NCR UP /RA 01067)
Examples of evidence in the record that support the Hearing Officer's decision:
Facility does not provide recovery services and recovery environment that are not available in
numerous other facilities in similar locations and settings on the Balboa Peninsula.
• Newport Coast Recovery's license from the California Department of Alcohol and Drug
Programs ( "ADP ") — lists services that Newport Coast is licensed to provide. Non-
medical detox not listed among the authorized services. (HR, NCR UP /RA 00194)
Staff (Kill) stated at the July 7, 2009 reasonable accommodation hearing that Newport
Coast Recovery's ADP license classification is "RES,' not "RES -DETOV RES -DETOX
is the designation ADP confers on facilities it licenses to provide non - medical detox to its
residents. Staff asked Newport Coast Recovery's operator to explain this at the April 14,
2009 use permit appeal hearing, since the operator stated all other facilities required 30
days of primary care prior to entrance. At the July 7, 2009 reasonable accommodation
hearing, Newport Coast Recovery's attorney did not present evidence or testimony on
this point, but said the primary care designation allowed the facility to accept residents
after only 72 hours of detox. (HR, NCR UP /RA 00933 -35)
• Staff (Wolcott) stated at the July 7, 2009 reasonable accommodation hearing that there
are currently 207 beds in licensed recovery facilities which had received approval to
operate from the City and were not subject to abatement. Most of these facilities were in
similar physical settings and similar locations on the Balboa Peninsula and West
Newport. (HR, NCR UP /RA 00902)
The staff report for the July 7, 2009 reasonable accommodation hearing states that
potential disabled residents seeking to live in a licensed recovery facility with 14 to 18
residents in an apartment building had alternative similar housing at Ocean Recovery's
men's facility one block away, and a number of Sober Living by the Sea facilities housing
up to 12 residents in duplexes throughout West Newport. (HR, NCR UP /RA 00033)
Examples of the evidence supporting the Hearing Officer's decision that alternate requests from
Request No. 2 were not necessary
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 5
Request for occupancy restriction waiver:
Staff report for July 7, 2009 reasonable accommodation hearing — 'The Newport Coast
Recovery facility is housed in a seven -unit apartment building. Even if subtracting the
bedrooms used for office rather than residential functions, the Newport Coast Recovery
facility still provides nine bedrooms. Under the standards of NBMC 20.91A.050(C)(2),
this would set the maximum number of residents ... at 19. Newport Coast Recovery
requests a maximum of 18 residents. Therefore, this requested accommodation is not
necessary..." (HR, NCR UP /RA 00044)
Accommodation of 18 residents:
Staff report for the July 7, 2009 reasonable accommodation hearing — In order to show
necessity for an increased number of residents, the applicant would need to provide
evidence showing that 1) the accommodation was necessary for the facility's financial
viability ...or 2); the requested accommodation is necessary to provide a therapeutic
benefit (and thus directly ameliorate an effect of the handicap.) The applicant has not
provided evidence to support either argument . . . The applicant has provided no
information or evidence that suggests that Newport Coast Recovery requires 18
residents in order to be financially viable." (Staff did find necessity for resident clients
currently in treatment at the facility, so that residents in treatment would not lose their
current housing.) (HR, NCR UP /RA 00045)
Parkin Requirements and Visitor Parking Restriction Waivers:
Staff report for the July 7, 2009 reasonable accommodation hearing — 'The applicant's
request to be subject to residential parking standards rather than the parking standards
applicable to group homes is not necessary ... At the maximum requested resident
occupancy of 18 residents, the facility already meets off - street parking requirements
established by NBMC Section 20.66.030 for Residential Care Facilities, General." (HR,
NCR UP /RA 00045) The applicant's request that the Hearing Officer impose not
restrictions on visitor parking is also not necessary.... [Tjhe applicant has made no
showing that the conditions placed on visitor_ parking would prevent family members from
attending educational sessions at the facility. it has also made no argument or showing
that waiver of the proposed visitor parking conditions in any way hindered the applicant's
ability to provide housing and related services to the disabled. Thus, there has been no
showing that the requested accommodation is necessary." (HR, NCR UP /RA 00046)
Classification of Newport Coast Recovery as a legal nonconforming use:
Staff report for the July 7, 2009 reasonable accommodation hearing — "The City has
always treated Newport Coast Recovery as a legal nonconforming use in the past, and
continues to treat Newport Coast Recovery as a legal nonconforming use under NBMC
Section 20.91A.020.... Staff has processed Newport Coast Recovery's use permit
application as it has processed all other applications for permits to continue existing
nonconforming uses in residential areas. Therefore, the requested accommodation is
not necessary to afford disabled individuals an equal opportunity to use and enjoy a
dwelling ... By this request, applicant may be attempting to request a waiver from the
application of any conditions imposed by Ordinance No. 2008 -05... this also is not
necessary to afford disabled residents an equal opportunity to use and enjoy a dwelling.
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 6
Disabled individuals do not need such a broad waiver to be able to use and enjoy a
dwelling within the City. The appropriate conditions which a use permit or reasonable
accommodation can impose ... do not prevent disabled individuals from residing in the
facility or receiving the services their disability requires ..." (HR, NCR UP /RA 00046)
Application of California Building Code provisions pertaining to life safety in effect at time the
facility was established:
outlets:
Staff report for the July 7, 2009 reasonable accommodation hearing — "The use of the
structure at 1216 West Balboa Boulevard changed in 1997 from an apartment building
occupancy to a residential care facility occupancy with more than six residents. The
correct version of the California Building Code to apply would be the 1994 Building Code
... Because the 2008 Building Code supplies alternate and equally effective life safety
protection provisions, the Newport Beach Fire Marshal is willing to apply the 2008
Building Code rather than the code in effect at the year a facility established. However,
this is not a requirement. Therefore, the requested accommodation is not necessary. .
. "(HR, NCR UP /RA 00047)
Staff report for the July 7, 2009 reasonable accommodation hearing — "(Tjhe
considerations to which the applicant is referring are not prohibitions or standards that
stand as absolute bars to granting a use permit for a group home. Rather they are
factors taken into consideration when determining in the context of a use permit hearing
whether the proposed use would be compatible with surrounding uses.
"!n analyzing overconcentration factors, and proximity to schools, parks and alcoholic
beverage outlets in a reasonable accommodation setting ... staff considers whether, but
for the specific factors named by the applicant, disabled individuals would be given an
opportunity to reside at Newport Coast Recovery ... All three factors were considered at
the January 12, 2009 use permit hearing by the Hearing Officer, who cited
overconcentration and proximity to schools and alcoholic beverage outlets among his
reasons for denying the applicant's use permit.. . However, other facts were also
considered by the Hearing Officer, including evidence of persistently disruptive resident
behavior, impacts of facility vans, and impacts of secondhand smoke. "
"Some of the impacts of the latter category could be controlled with appropriate
conditions. However, reports of continued disruptive conduct on the part of Newport
Coast Recovery's facility residents presented evidence of impacts on neighbors that
were not consistent with stated purposes of NBMC Chapter 20.91A ... The result for
Newport Coast Recovery is that even if the factors which NBMC Section 20.91A.060(D)
directs the Hearing Officer to consider are not considered, the findings necessary for a
use permit still cannot be made. Therefore, the requested waiver is not necessary to
provide disabled individuals with an equal opportunity to use and enjoy a dwelling. "(HR,
NCR UP /RA 00047 — 48)
Newport Coast Recovery— Appeal to City Council
October 27, 2009
Page 7
B. NBMC §20.98.025(6)(3) - Finding No. 3: The requested accommodation will not
impose an undue financial or administrative burden on the City as "undue
financial or administrative burden" is defined in Fair Housing Laws and
interpretive case law. HEARING OFFICER'S DETERMINATION: This finding cannot
be made.
Discussion:
The Decision of the Hearing Officer stated that granting Newport Coast Recovery's request
would impose an undue administrative burden on the City. The Hearing Officer emphasized
that numerous residents in the vicinity testified at past hearings regarding the conduct of the
Newport Coast Recovery operation that had required City staff time to address in the past, and
might continue to do so in the future. In particular, the Hearing Officer noted that administrative
and police department staff had spent substantial time assisting complainants and, in one case,
locating a minor entrusted to Newport Coast Recovery's care. The Decision of the Hearing
Officer acknowledged the Notice of Violation in Operation of Law by the California Department
of Social Services, evidence that supported a finding that Newport Coast Recovery did not
operate its facility in accordance with applicable law, and that an undue administrative burden
resulted. (HR, NCR UP /RA 01068 — 69)
• March 31, 2009 Newport Beach Police Department Report by Lt. Frizzell — (HR, NCR
UP /RA 00097 — 98)
April 1, 2009 Complaint Investigation Report and April 1, 2009 Notice of Violation in
Operation of the Law issued by the California Department of Social Services to Newport
Coast Recovery for housing minors without a license — "You are hereby notified that the
above referenced facility is operating without a license which is a violation of California
Health and Safety Code, Section 1508 ... In accordance with Health and Safety Code
Sections 1540, 1541, 1547 and other applicable laws, your continued operation without
a license could result in civil and /or criminal action being taken against you." (HR, NCR
UP /RA 00016 —18)
Email from Joan Robbins (California Department of Alcohol and Drug Programs,
Licensing Division) to Dave Kiff — "Newport Coast Recovery, 1216 West Balboa Blvd.,
Newport Beach is not approved as an adolescent waiver program." (HR, NCR UP /RA
00090)
Staff (Kill) testimony at the July 7, 2009 public hearing — '[T]his comes about as a result
of a discussion of a call that was made to me on or about April 1, March 30th of 2009,
where a mother claimed to have had a 17 -year old child in treatment at Newport Coast
Recovery for substance abuse. Among the troubling issues she raised with me were
that apparently Newport Coast Recovery knowingly accepted at least up to two minor
boys for treatment ... a subsequent investigation by the Department of Social Security
Services which governs youth and youth facilities brought forth a claim by a Newport
Coast staff member that they held an adolescent waiver that allows treatment of minors
for the Newport Coast facility. Adolescent waiver is granted by ADP on a condition
basis, but my follow -up call with ADP resulted in them telling me that there's no record of
Newport Coast ever having had an adolescent waiver authorizing Newport Coast to treat
adolescents." (HR, NCR UP /RA 00842)
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 8
Public testimony at the July 7, 2009 use permit public hearing of C. Willis, J. Willis and J.
Golden -. (HR, NCR UP /RA 00870 — 873) (HR, NCR UP /RA 00881 — 883)
C. NBMC §20.98.025(B)(4) - Finding No. 4: The requested accommodation will not
result in a fundamental alteration in the nature of the City's zoning program, as
"fundamental alteration is defined in Fair Housing Laws and interpretive case law.
HEARING OFFICER'S DETERMINATION: This finding cannot be made.
Newport Coast Recovery's accommodation Requests No. 1 and 2 requested a waiver of the use
permit requirement. When a reasonable accommodation request is made, the City must grant
the request if it is both necessary to afford a disabled individual an equal opportunity to use and
enjoy a dwelling, and reasonable. (HR, NCR UP /RA 00777) A request may be considered
unreasonable if granting the requested accommodation would result in an undue financial or
administrative burden on the City, or a fundamental alteration in the nature of a City program.
"Fundamental alteration" has also been described as "undermining the basic purpose the
requirement was put in place to achieve." (HR, NCR UP /RA 00778 — 79)
The July 7, 2009 staff report and testimony for Newport Coast Recovery's Requests No. 1 and 2
considered whether granting the requested accommodations would fundamentally alter the
nature of a City program. Both Requests No. 1 and 2 required the waiver of the use permit
requirement. The Decision of the Hearing Officer determined that granting the waiver of the use
permit requirement and accommodating Newport Coast Recovery's continued operation would
result in a fundamental alteration in the nature of the City's zoning program. (HR, NCR UP /RA
01068)
The Hearing Officer found the City seeks to avoid the overconcentration of residential care
facilities, such that facilities are reasonably dispersed throughout the community and are not
congregated or over - concentrated in any particular area so as to institutionalize that area. The
Hearing Officer also found that a primary therapeutic benefit for those in recovery is integration
into residential settings in the community. Therefore, the Hearing Officer found that dispersal of
the facilities to avoid institutionalization of residential areas was a fundamental part of the use
permit process in the R -2 zone. (HR, NCR UP /RA 01067 — 68)
The Hearing Officer also noted the City Council developed flexible standards for analysis and
evaluation of overconcentration, which followed the recommendations of the American Planning
Association to avoid institutionalization of neighborhoods while affording the disabled an
opportunity to reside there. For the same reasons he found granting a use permit would result
in overconcentration at the January 12, 2009 and July 7, 2009 use permit hearings, the Hearing
Officer found that granting the requested accommodation to waive the use permit requirement
would result in an overconcentration of recovery facilities in the area. This would fundamentally
alter the City's purpose of avoiding clustering and preserving the residential character of a mid -
Balboa Peninsula neighborhood, and was therefore unreasonable.
In addition, the Decision of the Hearing Officer stated that Newport Coast Recovery's violations
of state law were not consistent with one of the operating standards that must be met for a use
in a residential zone to obtain a use permit. One of the conditions that must be met is that the
facility must be operated in accordance with state and local law. (NBMC § 20.91A.050(B)) (HR,
NCR UP /RA 00888, 01002 - 03) The Hearing Officer determined that documented violations of
state licensing laws constituted a basis for a finding that Newport Coast Recovery does not
operate its facility in accordance with applicable law. (HR, NCR UP /RA 01069)
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 9
In deciding whether to issue a use permit, the Hearing Officer also considered the proximity of
Newport Coast Recovery to other uses, which the NBMC directed him to consider. The
evidence that supported the Hearing Officer's decision to deny the use permit application was
based in part on the use's proximity to other types of uses.
Examples of evidence supporting determination that granting the accommodation would alter
fundamental nature of City's zoning program:
Staff memorandum for April 14, 2009 use permit appeal —'The APA Standard reads as
follows: 'Finding #5. Community residences should be scattered throughout residential
districts rather than concentrated in any single neighborhood or on a single block. For a
group home to enable its residents to achieve normalization and integration into the
community, it should be located in a normal residential neighborhood. If several group
homes were to locate next to one another, or be placed on the same block, the ability of
the group homes to advance their residents' normalization would be compromised.
Such clustering would create a de facto social service district in which many facets of an
institutional atmosphere would be recreated and would change the character of the
neighborhood.
'Normalization and community integration require that persons with disabilities be
absorbed into the neighborhood's social structure. The existing social structure of a
neighborhood can accommodate no more than one or two group homes on a single
block (emphasis added). Neighborhoods seem to have a limited absorption capacity
for service dependent people that should not be exceeded. Social scientists note
that this level exists, but they can't quite determine a precise level. Writing about
service dependent populations in general, Jennifer Wolch notes, At some level of
concentration, a community may become saturated by services and populations and
evolve into a service dependent ghetto.'
From the APA's Policy Guide on Community Residences, September 22, 1997" (HR,
NCR UP /RA 00136)"
Staff testimony (Kiff) at the January 12, 2009 use permit public hearing — 1'll try to put
something up on the screen to show folks what is coming. What the APA standard says,
and it's Policy 4 — 'Halfway houses should be allowed in all single family zones by a
special use permit due to their multi - family characteristics -- multiple family — that
warrant the extra scrutiny provided by the use permit.'. . . Halfway houses are not, per
se, incompatible with single family, but the heightened scrutiny of a conditional use
permit hearing,' which is what we're doing right now, 'is warranted to assure that the
proposed halfway house will be compatible with other land uses in the single family
district The standards to apply are the same ones used by other special uses.'" (HR,
NCR UP /RA 00608)
• Staff report for the January 12, 2009 use permit public hearing - Diagrams with locations
and addresses of other recovery facilities in Newport Coast Recovery's immediate
neighborhood. (HR, NCR UP /RA 00533, 00552)
Public testimony at the July 7, 2009 use permit hearing (Wood) — 'In the midst of the
overconcentration of commercial rehab for - profit businesses, directly across the alley
from our property is 1132 West Balboa, a for-profit commercial rehab business. Nearby,
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 10
at 1120 West Balboa Boulevard, is a non - licensed for - profit commercial or rehab
business. Across the street, at 1115 West Balboa Boulevard, is another profit
commercial rehab business. in the block --- in the next block north, at 1217 West Bay
Avenue, is another for - profit commercial rehab business. Behind 1217 West Bay
Avenue, at 1216 West Balboa Boulevard, is subject for - profit commercial rehab
business. In this residential zone within the 1100 and 1200 blocks, there are five for -
profit commercial rehab businesses. "(HR, NCR UP /RA 00942 — 43)
Staff testimony (Kill) at the January. 12, 2009 use permit hearing, discussing the
requirements of Ordinance No. 2008 -05 — "(Ujp on the screen is the text of the
ordinance. And this is ... Section D of 20.91A.060. These are the findings that the
Hearing Officer has to make, and I'm focusing on D, that's the one that Mr. Allen was
referring to, where it says that 'The Hearing Officer needs to make a finding that the use
will be compatible with the residential character of the surrounding neighborhood. In
making this finding or sustaining a finding, the Hearing Officer' ... 'if appealed to the
City Council, shall consider as appropriate the following factors:' First one is the
proximity of schools and parks, outlets for alcoholic beverages. The second one is the
existence of substandard physical characteristics of the area in which the use is located,
such as lot width, set backs, etc.. .. if something . ..exists in the non - standard
subdivision area, then the Hearing Officer can decide, whether, in light of that, it's
appropriate to apply the APA standard of one or two such uses per block. And then it
discusses this concept that in Newport Beach, block differences — block lengths vary
quite a bit. The average calculable block length, though, is 711 feet. The median is 617.
So then, it directs the Hearing Officer to apply the APA standard in a manner which
eliminates those differences in block lengths. And then in making the determination, the
Hearing Officer is supposed to be guided by those block lengths. And then there's an
important sentence. It says, 'The Hearing Officer shall retain the discretion to apply any
degree of separation of uses which he or she deems appropriate in any given case.' And
then if refers to the APA document that i had on the screen earlier." (HR, NCR UP /RA
00613-15)
Examples of evidence that integration into residential settings in the community is a Primary
therapeutic benefit for those in recovery, and that dispersal of the facilities to avoid
institutionalization of residential areas was consistent with the stated purpose of the use Permit
requirement of Ordinance No. 2008 -05:
Staff report for the July 7, 2009 reasonable accommodation hearing - "The HUD /DOJ
Joint Statement says that, 'if a neighborhood came to be composed largely of group
homes, that could adversely affect individuals with disabilities and would be inconsistent
with the objective of integrating persons with disabilities into the community. Especially
in the licensing and regulatory process, it is appropriate to be concerned about the
setting for a group home. A concern about over- concentration could be considered in
this context. "' (HR, NCR UP /RA 00034)
Staff (Wolcott) testimony at the July 7, 2009 reasonable accommodation hearing — "The
purpose of community -based care . . . as ADP has explained it to us, is to allow
individuals in recovery to begin to reintegrate into the surrounding neighborhood and to
learn the skills of living in a neighborhood. . . `(HR, NCR UP /RA 00914)
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 11
The Hearing Officer's Resolution of Denial also acknowledged the impact of the Newport Coast
Recovery facility on immediate neighbors, and noted that overconcentration in combination with
the.operator's inability to adequately control and supervise the facility's residents in a manner
that allowed neighbors to have quiet enjoyment of their properties would fundamentally alter the
character of the neighborhood. (HR, NCR UP /RA 01095)
Examples of evidence that the character of the neighborhood was altered by Newport Coast
Recovery's inability to adequately control and supervise facility residents and other impacts:
• Public testimony at the December 8, 2008 and January 12, 2009 use permit public
hearing —
The use generates traffic in excess of other residential uses in the neighborhood —
(N. Bacich) — °I have been in the garage and working, and in a 45- minute period,
there [sic] was 18 vehicles that came up [to Appellant's property]. And several of
them were white vans, so they must have been picking up [residents/ quite frequently
... And sometimes there would be multiple cars blocking the alleyway while people
ran in and out So the car transport is a factor. "(HR, NCR UP /RA 00293)
Traffic impacts — (P. Bacich) - "One Saturday, while we worked in the garage over
there when we were turning tenants, we counted, l believe, 16 — I have it written
down somewhere at home — 16 vehicles coming and going in a couple -hour period
from the back alley [behind Appellant's property]" (HR, NCR UP /RA 00578 79)
The Applicant has a history of doing work without permits, jeopardizing the safety of
residents and neighbors — (Myers) "The 1216 West Balboa facility actually had a fire
several years ago during the summer ... and apparently, they were doing some
work in the garage converting the two --- there's two two -car garages there, along
with another garage, like a carport. Both of those two -car garages have never been
used as long as I've been down there. In fact, what they were doing is converting
one of the garages into --- originally it was a gym. Now, l guess, it's a laundry room
or whatever. But they were actually moving a gas pipe to a washer and dryer without
the proper City permits. So that type of information, in addition to, you know, the
smoking and everything else, and the proximity of our houses, gives me an extreme
amount of uneasiness. Because .. , there is a probability of fire, and it actually
occurred at that facility." (HR, NCR UP /RA 00307 — 08)
Disruptive noise and behavior from residents of Newport Coast Recovery — (Myers) —
"I mentioned earlier about my two young kids, ages 9 and 7. Well, there's constant
profanity that occurs from the facility" (HR, NCR UP /RA 00309) ; (Myers) - `And the
music is just glaring out of this facility ... I was sitting in my living room, which races
West Bay. So our lot is, what, 30 by 90. So, 90 -plus feet away, my house is shaking
from this music. The music was full of profanity. " (HR, NCR UP /RA 00584)
Tenant Impacts, with direct financial burden on neighboring property owners. (P.
Bacich — owner of duplex across alley from Newport Coast Recovery) — "We did
have an incident about two years ago where we had a car keyed after our tenant had
a confrontation with some of the people at the rehab facility. And they left
subsequently because they were so frustrated in having, as he said, pissing matches
with 20- year -olds on a regular basis." (HR, NCR UP /RA 00578)
Newport Coast Recovery — Appeal to City Council
October 27, 2009
Page 12
Tenant impacts — (Myers) — "I've lost tenants in my rental unit because of the
proximity and the noise and profanity coming from this place. So I've had a financial
burden.) (HR, NCR UP /RA 00315)
(Although testimony in the section above was offered in the context of Newport Coast
Recovery's various use permit hearings, it was included in the administrative record that
accompanied the July 7, 2009 reasonable accommodation staff report, and supported
the Hearing Officer's finding that granting the accommodation would undermine a
fundamental purpose of a City program.)
Examples of evidence that the facility was not operated in compliance with state and local law:
• NBMC § 20.91A.060 — °ln addition to the findings required by Section 20.91.035, the
Hearing Officer shall make the following findings before approving or conditionally
approving an application for a use permit in a Residential District ..." (A) The use
conforms to all applicable provisions of Section 20.91A.050." (HR, NCR UP /RA 00376,
00378)
• NB MC § 20.91A.050(B) —"Management and Operation. The property shall be operated
in compliance with applicable state and local law.. ." (HR, NCR UP /RA 00234, 01002
—04)
See evidence of Newport Coast Recovery's violations of state law identified above in
section of this memorandum that lists evidence that supports the Hearing Officer's
finding that granting the requested accommodation would result in a financial or
administrative burden.
Treating the use as a nonconforming use- Staff report for the July 7, 2009 reasonable
accommodation public hearing — "[T]he applicant may believe this request, if granted,
would allow it to continue operation without the imposition of reasonable conditions
required under a use permit. This is not the case ... However, if all provisions of
Ordinance No. 2008 -05 applicable to this facility were waived, it would result in
undermining two of the basic purpose the ordinance was put in place to achieve —
promoting public health safety and welfare, and to implement the policies of the General
Plan by ensuring that conditional uses in residential neighborhoods do not change the
character of such neighborhoods, and protecting the recovery and residential integration
of the disabled. (NBMC Section 20.91A.010)° (HR, NCR UP /RA 00053)
Waiver of overconcentration requirements — Staff report for the July 7, 2009 reasonable
accommodation public hearing — "Preventing overconcentration and excessive clustering
of residential care facilities, so that facilities are not congregated or overconcentrated to
the extent of institutionalizing an area, was one of the primary purposes the provisions of
the current Zoning Code were put in place to achieve ... (C]ourts have recognized that
the presence of too many group homes in a residential neighborhood can potentially
undermine the very purpose of such a district and therefore be unreasonable. In United
Newport Coast Recovery— Appeal to City Council
October 27, 2009
Page 13
States. v. City of Chicago Heights, 161 F.Supp.2d 619, 837 (N.D.11l. 2001), the District
Court stated,
'There may be situations in which the distance between the homes is so
little, where there is already more than one group home within 1000 feet,
or where the homes are so similar in nature or operation, under which a
request for a special use permit would fundamentally alter the City's
purpose of avoiding clustering and preserving the residential character of
certain neighborhoods.'
'The HUD /DOJ Joint Statement on Group Homes, Local Land Use and the Fair Housing
Act indicates that those agencies are also concerned with the appropriate setting for
residential care facilities, and are not in favor of overconcentration that leads to
institutionalization of a neighborhood. (See HUD /DOJ Joint Statement on Group
Homes, Local Land Use and the Fair Housing Act, quoted in the analysis for Request
No. One, Finding Two, above.)" (HR, NCR UP /RA 00053 — 54)
CITY OF NEWPORT BEACH
MEMORANDUM
TO: Honorable Mayor and Members of the City Council
FROM: Janet Johnson Brown, Associate Planner
Catherine Wolcott, Deputy City Attorney
DATE: October 27, 2009
RE: Newport Coast Recovery, LP Appeal of Hearing Officer's Denial of Use
Permit No. 2008 -033 (PA2008 -104) for property located at 1216 West Balboa
Boulevard — Staff Analysis and Recommendation Regarding Hearing
Officer's Decision
A public hearing was reopened on July 7, 2009 by Hearing Officer Thomas W. Allen to consider
the remanded use permit application with regard to evidence acquired after the January 12,
2009, hearing closed. As noted in the staff report submitted by City Attorney David Hunt, the
use permit application was remanded to the Hearing Officer by the City Council following a
public hearing held on April 14, 2009 on Newport Coast Recovery's appeal of the Hearing
Officer's denial of the use permit.
At the conclusion of the July 7, 2009 public hearing during which testimony was provided by the
applicant's legal counsel, City staff and the City's legal counsel, and members of the public,
Hearing Officer Allen again determined the findings to approve a use permit as submitted by
Newport Coast Recovery could not be made. Staff was directed to prepare a supplemental
resolution to deny Use Permit No. 2008 -033. Resolution No. HO- 2009 -022 was issued on
September 17, 2009 and is attached to the administrative record (HR, NCR UP /RA 01072 -84)'.
This memorandum presents discussion of evidence provided in the administrative record for the
use permit hearings in support of the Hearing Officer's decision on July 7, 2009 to deny Use
Permit No. 2008 -033. Staff concludes that there is substantial evidence in the record to support
the Hearing Officer's decision. In general, substantial evidence has been defined as "evidence
of ponderable legal significance ...reasonable in nature, credible and of solid value" (156
Cal.App.0 at 1371.) For a complete discussion of what kind of evidence is considered
"substantial evidence" please refer to the staff memorandum prepared for the Newport Coast
Recovery Reasonable Accommodation applications attached to the Staff Report submitted by
the Office of the City Attorney.
USE PERMIT HEARINGS AND HEARING OFFICER'S DECISION
All references to the administrative record are designated "HR, NCR UP /RA"" followed by the page
number. The designation means Hearing Record, Newport Coast Recovery, Use Permit/Reasonable
Accommodation.
City Hall • 3300 Newport Boulevard • Post Office Box 1768 a Newport Beach, California 92659 -1768
Newport Coast Recovery Appeal — Use Permit
October 27, 2009
Page 2
The Hearing Officer is designated by Newport Beach Municipal Code ( "NBMC ") Section
20.91A.040 to approved, conditionally approve, or disapprove a use permit to allow an existing
group residential care facility to remain in operation. In order to issue a use permit, he or she
must be able to make each one of eleven (11) findings identified in NBMC Section 20.91.035(A)
and in Section 20.91A.060 following a noticed public hearing. These findings are summarized in
the Findings Chart at the end of this memorandum.
As shown in Resolution No. HO- 2009 -033 (HR, NCR UP /RA 01072 -84), the Hearing Officer
made five (5) of the eleven (11) required findings and was unable to make six (6) of the eleven
(11) required findings. This memorandum does not discuss the findings the Hearing Officer was
able to make, as they are included in the Resolution. The six (6) findings the Hearing Officer
was unable to make, and evidence that supports that decision, are discussed herein:
A. NBMC §20.91.035 (A) Finding
accord with the objectives of
the site is located. HEARING
made.
Discussion.
No. 1: That the proposed location of the use is in
this code and the purposes of the district in which
OFFICER'S DETERMINATION: This finding cannot be
The context that the Hearing Officer used in regards to this finding (that the proposed use is in
accord with the objectives of this code) was the location of the facility on the Balboa Peninsula.
During the January 12, 2009 public hearing, staff provided the Hearing Officer information to
show that these uses, each of which are called out in NBMC Section 20.91A.060(D), are
proximate to Newport Coast Recovery and could be affected by or affect the operation of the
subject use. (See location maps on page HR. NCR UP /RA 00533 -34, and Diagram A, below.)
Each of the uses depicted on the location map are described below.
• Within 300 feet: Balboa Horizons Recovery Services (11 -bed licensed treatment facility
located at 1132 West Balboa Boulevard, with an approved use permit) is one block east of
Newport Coast Recovery, on the same side of the street.
• Within 300 feet and across the street: Newport Elementary School for students from
Kindergarten through 5th grade located at 1327 West Balboa Boulevard.
• Within 750 feet: Christ Church's large (44 children capacity) state - licensed day care center
located at 1400 West Balboa Boulevard.
• Within 1250 feet: Outlets for alcoholic beverages are the American Legion Hall located at
215 15"' Street and Fry's Market located at 115 15th Street.
• Within 500 feet: Ocean Recovery's Men's Facility (ADP - licensed for 22 persons located at
1115 West Balboa Boulevard, with an approved use permit).
• Within 40 feet: Ocean Recovery's pending "6 and Under' ADP - licensed facility for women
dually- diagnosed with eating disorders and alcohol or drug dependency at 1217 West Bay
Avenue.
Newport Coast Recovery Appeal – Use Permit
October 27, 2009
Page 3
Diagram A – Newport Coast Recovery's Location Map
5� E Vrf4100
,
S�UU
Ameri can LegionOfi']'C.
� Chrlstchurd, NN��
t
Ocean Recovery
Ocean Recovery
- --
m - - 10 Balboa Horizons
F 4Vf W
Fry's Market - - -� _ - -�. J., &AZ "
,,.. Newport Elementary -_ o q�F FRONrgzjEVrr, -
,�
RQNrW. -._ -
NC Recovery -
a — - a411ft
The Hearing Officer found the location of Newport Coast Recovery in relation to its proximity to
Balboa Horizons, a licensed residential care facility; to Christ Church's large day care center
licensed by the State of California Department of Social Services; to Newport Elementary
School; and to facilities either selling or serving alcoholic beverages made the use incompatible
with the surrounding residential character of the neighborhood.
Staff believes that the information in the administrative record is supportive of the Hearing
Officer's determination that the proposed use would be incompatible with the surrounding
residential character of the neighborhood; and therefore, his determination that this first finding
could not be made is justified by the record.
B. NBMC §20.91.035(A) Finding No. 2: That the proposed location of the use permit
and the proposed conditions under which it would be operated or maintained will
be consistent with the General Plan and the purpose of the district in which the
site is located; will not be detrimental to the public health, safety, peace, morals,
comfort, or welfare of persons residing or working in or adjacent to the
neighborhood of such use;
improvements in the vicinity
OFFICER'S DETERMINATION:
Discussion.
Newport Coast Recovery Appeal — Use Permit
October 27, 2009
Page 4
and will not be detrimental to the properties or
or to the general welfare of the city. HEARING
This finding cannot be made.
The Hearing Officer, as well as staff, viewed aspects of this finding as being similar to Finding
No. 1 above. As discussed in the Resolution of Denial, the City's General Plan policy LU 6.2.7
directs the City to regulate day care and residential care facilities to the maximum extent
allowed by federal and state law so as to minimize impacts on residential neighborhoods.
Approval of a use permit for the facility would include conditions regulating the use and
operational characteristics related to curfew hours, smoking, transportation of clients off -site,
trash collection, delivery of goods, and types of services provided.
Neighbors and residents testified at the public hearings that:
Traffic generated by this use is excessive (Bacich) "/ have been in the garage working, and in a
45- minute period, there [sic] was 18 vehicles that came up [to Appellanrs property]. And several
of them were white vans, so they must have been picking up [residents] quite frequently");
(Bacich) "One Saturday, while we worked in the garage over there when we were turning
tenants, we counted, 1 believe, 16 — 1 have it written down somewhere at home — 16 vehicles
coming and going in a couple -hour period from the back alley [behind Appellant's property] );
(HR, NCR UP /RA 00293,00578-9)
• The Applicant's vehicles block alleyways and driveways (Bacich) And sometimes there would
be multiple cars blocking the alleyway while people ran in and out So the car transport is a
factor'); (HR, NCR UP /RA 0093)
The Applicant uses the neighbors' trash cans when their own are full, and residents at the facility
litter the neighborhood with cigarette butts (Bacich) "They do have trash pick -up, but somehow
we always seem to get cigarettes and different things in the trash cans of our tenants ... [O]ne
of the [sic] time we were working at our place, and opened up - - because all the trash cans were
full, and one as full as the lasagna and probably a couple - - hundreds of cigarettes butts'); (HR,
NCR UP /RA 00294)
The Applicant has a history of doing work without permits, jeopardizing the safety of residents
and neighbors, particularly given the `zero lot lines" in this neighborhood (Myers) '[w]hat they
were doing is converting one of the garages into - - originally it was a gym. Now, I guess, it's a
laundry room or whatever. But they were actually moving a gas pipe to a washer and dryer
without the proper City permits. So that type of information, in addition to, you know, the
smoking and everything else, and the proximity of our houses, gives me an extreme amount of
uneasiness. Because there is a potential - - not potentiality, but there is a probability of tire, and
it actually occurred at that facility); (HR, NCR UP/RA 00308)
Profanity spoken by residents of Newport Coast Recovery and profanity in music played loudly at
Newport Coast Recovery (Myers) "i mentioned earlier about my two young kids, ages 9 and 7.
Well, there's constant profanity that occurs from the facility'); (HR, NCR UP /RA 00309) (Myers)
"So our lot is, what, 30 by 90. So, 90 plus feet away, my house is shaking from this music. The
music was full of profanity." (HR, NCR UP /RA 00584) (McBride), , "I don't want my son to hear
that kind of language that I hear consistently coming from this house.... when I'm walking past);
(HR, NCR UP/RA 00950)
Newport Coast Recovery Appeal — Use Permit
October 27, 2009
Page 5
Secondhand (McBride) "1 don't want my son ... or to inhale the second -hand smoking [sic] that I
hear or smell in the alley when I'm walking past'); ( HR, NCR UP /RA 00950)
Tenant impacts. Additionally, neighbors whose properties are adjacent to the Appellants'
complained that they had lost tenants because of the noise, profanity and confrontations
coming from Newport Coast Recovery. The loss imposed a direct financial burden on one of
the neighbors. (Myers) "I've lost tenants in my rental unit because of the proximity and the
noise and profanity coming from this place. So I've had a financial burden'); (HR, NCR
UP /RA 00315) (Bacich) "We did have an incident about two years ago where we had a car
keyed after our tenant had a confrontation with some of the people at the rehab facility. And
they left subsequently because they were so frustrated in having, as he said, pissing
matches with 20- year -olds on a regular basis.'). (HR, NCR UP /RA 00578)
The quotes above are from certified transcripts of the three hearings for Newport Coast
Recovery, held December 8, 2008, January 12, 2009, and July 7, 2009.
From this testimony, it did not appear to City staff that the operator could adequately control the
facility's ADP - allocated caseload of clients (29) in a manner that allows the neighbors quiet use
and enjoyment of their homes. While staff recommended that the Hearing Officer consider a
condition limiting the client caseload to fourteen (14) in the January 12, 2009 staff report, the
facility had been operating at this lower level (or below) for a significant period of time.
Neighbors' testimony led the Hearing Officer to believe that, even at a lower bed count, the
applicant may not be capable of properly managing the facility.
Further, and as noted, the subject property is proximate (within 300 feet) to Newport Elementary
School located at 1327 West Balboa Boulevard and proximate (within 750 feet) to Christ Church
by the Sea's Children's Center, a large day care facility licensed by the State of Califomia
Department of Social Services located at 1400 West Balboa Boulevard with a capacity of 44
children. These facilities could be affected by the use due to residents of Newport Coast
Recovery using the open recreational area associated with Newport Elementary School and the
potential for residents of Newport Coast Recovery to loiter, smoke, and engage in offensive and
disruptive behaviors incompatible with nearby school and daycare uses. In fact, one 35 -year
Newport Beach resident testified she believed the conditions in the neighborhood had
deteriorated so substantially that she removed her children from Newport Beach Elementary.
(Deininger) (°Mr. Allen: 'You took your children out of Newport Elementary because of the
conduct of the - -' Ms. Deininger.• 'Because of the atmosphere there.' Mr. Allen: `- - rehab
facilities ?' Ms. Deininger: 'Yes.' "). (HR, NCR UP /RA 00296)
The Hearing Officer found the operator's inability to effectively manage and control the
proposed use would: (a) adversely impact the neighbors' quiet use and enjoyment of their
homes; as well as (b) negatively affect other nearby uses. Based on testimony provided during
the public hearings, the continued use of the subject property as a residential care facility in this
location would be detrimental to the public health, safety, peace, morals, comfort, or welfare of
persons residing or working in or adjacent to the facility.
C. NBMC §20.91.035 (A) Finding No. 3: That the proposed use will comply with the
provisions of this code, including any specific condition required for the proposed
use in the district in which it would be located. HEARING OFFICER'S
DETERMINATION: This finding cannot be made.
Newport Coast Recovery Appeal — Use Permit
October 27, 2009
Page 6
Discussion.
The Hearing Officer found that the facility does not comply with the provisions of the code,
specifically with the operational standard stated in NBMC Section 20.91A.050(B), that the
property shall be operated in compliance with applicable state and local law.
As reported in the July 7, 2009 staff report, staff provided information that Newport Coast
Recovery had accepted minor clients without the appropriate Department of Social Services
(DSS) license or the adolescent waiver required by the Department of Alcohol and Drug
Programs (ADP) to provide residential treatment to minors (HR, NCR UP /RA 00010 -11). This
violation of state law resulted in the issuance of a Notice of Violation of Law to Newport Coast
Recovery by DSS (HR, NCR UP /RA 00016 -18). Other supporting evidence provided to the
Hearing Officer included a Newport Beach Police Department Employees Report dated March
31, 2009 (HR, NCR UP /RA 00097 -98) and an email from ADP dated April 3, 2009, confirming
that ADP had not granted an adolescent treatment waiver to Newport Coast Recovery (HR,
NCR UP /RA 00090).
The Hearing Officer concluded from the information and testimony provided during the public
hearing that Newport Coast Recovery was not being operated in compliance with state law, and
therefore, that the use did not comply with the provisions of the Newport Beach Municipal Code.
D. NBMC §20.91.035(A) Finding No. 4: If the use is proposed within a Residential
District (Chapter 20.10) or in an area where residential uses are provided for in
Planned Community Districts or Specific Plan Districts, the use is consistent with
the purposes specified in Chapter 20.91A and conforms to all requirements of that
Chapter. HEARING OFFICER'S DETERMINATION: This finding cannot be made.
Discussion.
The Hearing Officer's discussion of this finding centers on NBMC Section 20.91A.060(D) again,
similar to Finding No. 1. Staff concluded it was appropriate to apply the American Planning
Association's ( "APA ") standard to this application. The APA Standard reads as follows:
"Finding #5. Community residences should be scattered throughout residential districts
rather than concentrated in any single neighborhood or on a single block. For a group
home to enable its residents to achieve normalization and integration into the community,
it should be located in a normal residential neighborhood. If several group homes were to
locate next to one another, or be placed on the same block, the ability of the group homes
to advance their residents' normalization would be compromised. Such clustering would
create a de facto social service district in which many facets of an institutional atmosphere
would be recreated and would change the character of the neighborhood.
"Normalization and community integration require that persons with disabilities be
absorbed into the neighborhood's social structure. The existing social structure of a
neighborhood can accommodate no more than one or two group homes on a single block
(emphasis added). Neighborhoods seem to have a limited absorption capacity for service
dependent people that should not be exceeded. Social scientists note that this level
exists, but they can't quite determine a precise level. Writing about service dependent
populations in general, Jennifer Wolch notes, 'At some level of concentration, a community
may become saturated by services and populations and evolve into a service dependent
ghetto."
Newport Coast Recovery Appeal — Use Permit
October 27, 2009
Page 7
From the APR's Policy Guide on Community Residences, September 22, 1997,
(HR, NCR UP /RA 00136)
The City has incorporated the APA standard of "no more than one or two group homes on a
single block' into NMBC §20.91A.060 (D)(3).
Newport Coast Recovery is located in the mid - Balboa Peninsula area which, as defined by
NBMC Section 20.91A.060(D)(2) is a part of the Nonstandard Subdivision Area characterized
by properties with short setbacks and short blocks. Per NBMC Section 20.91A.060(D)(2), the
Hearing Officer can determine the applicable block length for the mid - Balboa Peninsula area.
He chose a median block length of 617 feet, as permitted under NMBC Section
20.91A.060(D)(3).
While the NBMC defines a block as an area bounded on all sides by streets (NBMC Section
20.03.030), the Hearing Officer may use NMBC §20.91A.060 (D)(3) to extend a block beyond
smaller streets like 12"' and 11°i Streets in an effort to "eliminate the differences in block
lengths' to achieve a 617 -foot block standard. He did so in this instance.
During the January 12, 2009 public hearing, the Hearing Officer noted that within the 617 -foot
median block length where Newport Coast Recovery is located there is already one 11 -bed
residential care facility (Balboa Horizons). He found the proposed use at 1216 West Balboa
Boulevard was within the same extended 617 -foot block as Balboa Horizons, and determined
the proposed use would result in an overconcentration of residential care facilities within the
neighborhood. He used this information to direct staff to prepare a resolution that this
overconcentration showed the proposed use was inconsistent with the purposes specified in
Chapter 20.91A and would not conform to all requirements of that Chapter (HR, NCR UP /RA
00610 -22).
The Hearing Officer reiterated his position on the denial of the use permit on the basis of
overconcentration during the July 7, 2009 public hearing for the reasonable accommodation
applications, stating "the primary focus of thinking remains the overconcentration issue that /
think was founded in the first Resolution we did' (HR, NCR. UP /RA 00960). The Hearing. Officer
also expressed his opinion on the matter of overconcentration in the Order of Hearing Officer
dated August 18, 2009, in which he directed staff to prepare a resolution denying the
reasonable accommodation (HR, NCR UP /RA 01068).
E. NBMC §20.91A.060 Finding A: The use conforms to all applicable provisions of
NBMC §20.91A.050. These development and operational standards are
summarized as follows:
1. No secondhand smoke can be detectable outside the property.
2. Operations of the facility must comply with state and local law, and the submitted
management plan, including any modifications required by this Use Permit. Each plan shall
provide a contact name and number to the City.
3. In order to ensure that unlicensed residential care facilities operate in a manner consistent
with state and federal law and established industry standards and to ensure that operators
do not have a pattern or practice of operating similar facilities in violation of state or local
Newport Coast Recovery Appeal — Use Permit
October 27, 2009
Page 8
law, no services requiring a license can be provided if the facility does not have a license for
those services.
4. There shall be no more than two persons per bedroom plus one additional resident, unless a
greater occupancy is requested and granted. Occupancy must also comply with State
licensing if applicable.
5. If certification from an entity other than ADP's licensing program is available, applicants
must get that certification.
6. All individuals and entities involved in the facility's operation and ownership must be
disclosed.
7. No owner or manager shall have any demonstrated pattern of operating similar facilities in
violation of the law.
HEARING OFFICER'S DETERMINATION: This finding cannot be made.
Discussion.
The Hearing Officer determined this finding could not be made, specifically with regard to the
second operational standard listed above (the facility must comply with state and local law),
based on the newly acquired evidence and testimony presented during the July 7, 2009
reopened public hearing. As this finding is discussed in greater detail in NBMC Section
20.91.035(A) Finding No. 3 above (item #3), staff does not believe it necessary to restate the
discussion here.
F. NBMC Section 20.91A.060 Finding D: The use will be compatible with the
character of the surrounding neighborhood, and the addition or continued
maintenance of the use will not contribute to changing the residential character of
the neighborhood, such as creating an overconcentration of residential care uses
in the vicinity of the proposed use. In making this finding or sustaining such a
finding, the Hearing Officer shall consider, as appropriate, the following factors:
1. 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;
2. The existence of substandard physical characteristics of the area in which the use is located
such as lot widths, setbacks, narrow streets, limited available parking, short blocks, and
other substandard characteristics which are pervasive in certain areas of the City of Newport
Beach, including portions of West Newport, Lido Isle, Balboa Peninsula, Balboa Island,
Corona del Mar and Newport Heights, which portions were depicted on a map referred to as
the Nonstandard Subdivision Area presented to the Newport Beach Planning Commission
on September 20, 2007 and on file with the Director of Planning; and
3. Whether, in light of the factors applied in subsections 20.91A.D.1 and D.2, it would be
appropriate to apply the American Planning Association standard of permitting one or two
such uses per block. Median block lengths in different areas of Newport Beach widely
range from 300 feet in the Nonstandard Subdivision Areas to as much as 1,422 feet in
standard subdivision areas. The average calculable block length in much of the standard
Newport Coast Recovery Appeal — Use Permit
October 27, 2009
Page 9
subdivision areas is 711 feet and the calculable median block length is 617 feet. The
Hearing Officer shall apply the American Planning Association standard in all areas of
Newport Beach in a manner that eliminates the differences in block lengths. In making this
determination, the hearing officer shall be guided by average or median block lengths in
standard subdivisions of the City. The Hearing Officer shall retain the discretion to apply
any degree of separation of uses, which he or she deems appropriate in any given case. A
copy of the American Planning Association standard is on file with the Director of Planning.
HEARING OFFICER'S DETERMINATION: This finding cannot be made.
Discussion.
The Hearing Officer's interpretation of this finding mirrored that of the previous finding in section
D (finding #4) above, and staff incorporates examples of evidence cited in Section III(D) in this
section. In addition, staff incorporates by reference the evidence cited in the October 27, 2009
staff memorandum that accompanies this memo, addressing evidence that supports the
Hearing Officer's denial of reasonable accommodation Requests No. 1 and 2 Section III(D),
pages 8 -13 of staff memorandum on Newport Coast Recovery requests for reasonable
accommodation). Additionally, the Hearing Officer included a statement in his Order dated
August 18, 2009, regarding the request for reasonable accommodation, that the granting the
accommodation would result in an overconcentration of recovery facilities in the area (HR, NCR
UP /RA 01068). Staff believes that there is sufficient evidence in the record to conclude that the
Hearing Officer's action to determine that this Finding could not be made is justified by the
record.
Newport Coast Recovery Appeal — Use Permit
October 27, 2009
Page 10
FINDINGS CHART
FINDINGS REQUIRED TO APPROVE A GROUP RESIDENTIAL USE PERMIT
NBMC Code Section What the
§20.91.035 — A.1.
That the use and proposed conditions will allow the use to be
consistent with the General Plan and not be detrimental to public
§20.91.035 —A.2. health, safety, peace, morals, comfort, or welfare of persons residing
in or adjacent to the neighborhood of the use, and won't be
detrimental to the properties or improvements in the vicinity or to
the general welfare of the City.
§20.91.035 — A.3. ....
§20.91.035 —A.4. That the proposed use complies with Chanter 20.91A
§20.91A.060 - A
§20.91A.060 — F
Delivery of goods is made within compatible hours and won't
adversely impact the neighborhood.
law.,
ATTACHMENT 4
Email dated October 16, 2009
Staff Report: Newport Coast Recovery - Appeal of Hearing Officer's Denial of
Use Permit and Reasonable Accommodation
Hunt, David
From:
Sent:
To:
Subject:
CyAutold:
CycomPath:
CyMatterld:
CyMultiRecMemos:
CyStaffId:
Mr. Polin and Mr. Brancart:
Hunt, David
Friday, October 16, 2009 9:40 AM
Steve Polin Esq. (spolin2 @earthlink.net); Christopher Brancart Esq.
(cbrancart@brancart.com )
Hearing October 27 and Agenda Materials (File: A09 -00583 Pacific Shores: RA Appeal)
2052127
C:lcycomsgll
2042134
N
DRH
We confirm the appeal of the denial of Pacific Shores' application for reasonable accommodation is scheduled for
hearing by the City Council at its regular meeting on October 27, 2009. We will set the matter for a time certain
immediately following the appeal in the Newport Coast Recovery matter so there is some certainty as to when the
hearing will be held.
We are in the process of preparing our staff report in the appeal. It must be to the City Clerk Wednesday morning,
October 21, 2009, to go out with the regular agenda packet that afternoon. If you wish to have an written presentation
routed to the City Council with the agenda packet, please provide it to us by close of business on Tuesday, October 20,
2009, and we will be sure it is routed with our staff materials.
Thank you in advance for your anticipated cooperation. Please let us know if you have any questions or concerns.
Sincerely,
David R. � aS
City Attorney
City of Newport Beach
3300 Newport Blvd
Newport Beach, CA 92658 -8915
(949) 644 -3131
city. newport- beach.ca. us
CONFIDENTIALITY NOTICE: This email may contain material that is confidential, privileged and /or attorney -work product for the sole
use of the addressee. Any review by, reliance or distribution by others or forwarding to others without express permission is strictly
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waive the attorney - client privilege as to this communication. If you have received this communication in error, immediately notify
the sender. Thank you.
Authorized hi Publish Advertisements of all kinds Including public notice% by
Decree of the Superior Court of Orange County. California Vumtt
September 29. 1%1, and A -24831 June 11,
PROOF OF PUBLICAITiCA22 0 06
V
-i.
STATE OF CALIFORNIA) %.-
) ss.
COUNTY OF ORANGE )
I am a Citizen of the United States and a
resident of the County aforesaid: I am
over the age of eighteen years, and not a
party to or interested in the below entitled
matter. I am a principal clerk of the
NEWPORT BEACH - COSTA MESA
DAILY PILOT, a newspaper of general
circulation, printed and published in the
City of Costa Mesa, County of Orange,
State of California, and that attached
Notice is a true and complete copy as
was printed and published on the
following dates:
October 17, 2009
declare, under penalty of perjury, that
the foregoing is true and correct.
Executed on October 20, 2009 at
Costa Mesa, California.
i
Signatumd
=Mnsl 8 -tor 33 and RA2009 W9
KN/rosla Me%n Daily Pilot sa9gG
Gkw RESDENTIAI (AAE FACRfrf
USE lefRMfT AND REASONABLE ACCOMMODATION
NEWPORT (OAST RE(OYERY, LP
NOTICL 6 KREBY GNEN that me City Cou'll of
to Cely of Newport Beach will conduct a pudic
hearing on Oclope, 27. 2009. at 7W p.m n Me
City Council Chambers (BUlOrlg A) at 330(1 Newport
Boulevard. Newport Beare. Caklorora The City
Coond wiry cunmde, an appeal of the (tearing
DMrai decisions to deny the applications filed by
Newport Coast Recovery. LP for Use Permit No
2008 -033. and Reasonable Accommodation No
2003009 for property located at 1216 Wet Balboa
Boulevard. The appeals were tied by the applicant.
Following n a brief description, of the appubuns.
w War laawiF Nor. 2006032: An appheabon
requesting Approval of a use permit to allow a
residential Care facility to operate a acemed adull
alcohol aria drug abuse recovery treatment
fscity for an only
RAaaadA, AgsnwlaaNn Na 2000-009: A
Reasonable Accommadabon Application fa an e-
nbng resdmlla care facility to opeele a keraec
adult alcohol andior drug abuse recovery aric
easement facility in an R 1 Drslrict. where such
tae are nor permitted. The applicant requets rise
fol
1. An exemption from the portions of FIRM[
Section 20.10.020 (Residential Districts. Land Use
Regulations) that remove Residential Care Fault
Les. Geoaal to be established only in residents
disMcls zoned Multi Family Resdental (MFR'
with a use permit. sublet( to Me opaationa
conditions recommended by City slaty in the
January 12. 2009 %left report for Use Permit No
200 &33, including a maximum occupancy of lit
residents. which was denied by the Newml
rational Standards). including a waiver of 1
upancy restriction of two persons per be
in plus one staff member, and to allow
if aceupancy of IS residents.
An exemption from the parking remunemer
one off- street parkin space for each Mr
ident beds, as we<keed in NOMC Sect,
mueements) la Residential Care. Genera use
sanficaltons, and to apply the oft s1reet park
reamrements applicable to Two-family Rev.
,',At (P 2) use classifications which requires
o aB street parking spaces par dwelling unit,
Treat the use of the licensed residential care
dley as a legal nonconforming use,
Apply the California Building Code provisions
it were applicable at the time the residential
'e facility was established as relates to life
d fire safety, outlays. and
A waiver of the required finding specified in
MC Section 20.91A060 (11), relative to the
wpabbility of the use with to character of
r surrounding neighborhood, which requires a
ding Mal the continued use will not contribute
the changing of the residential character of
i neighborhood, such u creating an overcoe
relate. of rmodenWl care uses in the vKimty.
J waiving the impact analysis contained in the
:Iors A through C which the Hearing Office,
at consrMr in making or sustaining the finding
I, regard to the proximity of the use to
roots. churches, playgrounds. day care centers.
I alcoholic beverage outlets, and the applve
n of Me American Planning Association slim
d of permitting one or two such uses par
s activity has been determined to be calegorr
ly exempt under the reauuemenls of the
Idornia Envnonmenlal Quality Act (CEQA)
der Class I (Existing Facilities). This class of
elector has been determined not to have a
ndmant effect on the environment and is
emit from the provisions of CEQA. This
noty is also Covered by the general rule that
QA applies only to protects that have the
lentil for causing a significant effect on the
reconnect (Section 15061(b)(3) of the CEQA
idelnes). 11 can be seen worth certainty that
ere Is no possibility that this activity will have
4gp11Kant effect an the environment and II is
I sublect to CE QA.
interested parties may appear and peasant
timony in regard to this application. It you
,binge this project in court. you may be
lead to raising only those issues you Or
more else raised It the public hearing
scribed m this notice) Or in written cor-
pondence delivered to the City. al. or prior
the public hearing The staff report may be
'rowed at the City Clerk's Office, City of
wp .1 Beach. 3300 Newport Boulevard, New
't Beach, California. 92663 or at the City of
wport Beach weasite of
wep.saay pKK to the hearing For more
prmabon. cyn vGap) Fits 3232 or (949) 61a
32. To be added 10 . nermaoent notification
I of these hearings, email I6resvn LA
wlpeaMadaaa4w and ask to recave Mesa
"RECEIVED AFTER AGENDA
Brown, Leilani
1� 2
I7R" -1 1
From: Denys Oberman Id .oberman @obermanassociates.coml
Sent: Wednesday, October 21, 2009 3:25 PM
To: Brown, Leilani; City Clerk's Office
Subject: Document re group residential use - please insert in Council package and into public record.
Attachments: City- Correspondence re group residential use at 1216 W Balboa.doc
Importance: High
Please include this document in the information package concerning the Group Residential Use located at 1216 W.
Balboa,
Newport Coast Recovery that is being forwarded to City Council for 10 -27 meeting ----- -and,
Please enter this document into public record.
I appreciate your confirmation, and your assistance.
Denys H. Oberman, CEO
A
OBERMAN
OBERMAN Strategy and Financial Advisors
2600 Michelson Drive, Suite 1700
Irvine, CA 92612
Tel (949) 476 -0790
Cell (949) 230 -5868
Fax (949) 752 -8935
Email: d.obermanaobermanassociates.com
CON FIDENTI A L,ITY NOTICE: 'nte documents accompanying this transmission contain confidential information belonging to the sender which is
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th s transmission in error, please notify us imntodiately at 9491476-0790 or the electronic address above, to arrange for the return of the document(s) to us.
October 20,2009
City of Newport Beach
att: Dave Kiff ,City Manager and City Clerk
3300 Newport Blvd.
Newport Beach, CA
Re: Group residential care and treatment use- UP No. 2008 -033 and Reasonable
Accomodation No. 2009 -009- Newport Coast Recovery, located at 1216 W. Balboa Blvd.
Dear Dave,
This letter confirms our prior discussion with you clarifying several prior testimonies in
connection with this use. We hereby request that you enter this into the public record in
advance of the appeal scheduled to be heard by Council on October 27,2009.
Following is a summary of our corrections and amplification to Staff Reports and record
of Public Hearings in connection with this Use.
LOver- concentration of uses in the immediate neighborhood creating
Institutionalization -There are currently 4 known residential care and treatment uses
within 300 feet of one another, all within several hundred ft. of Newport Elementary
School .Three of these have already been approved by the City - -1 132 W. Balboa
Blvd( large female ADP); 1115 W Balboa(large male ADP); and 1217 W Bay Ave(
small female - permitted by right). The fourth, subject Use at 1216 W Balboa, is less
than 300 ft from Newport Elementary School and adjacent playground.
In addition to these residential uses, the City has approved a large female ADP
facility at 1601 W Balboa, and a small male facility at 900 W Balboa
The American Planning Association has stated that drug/alcohol recovery facilities
should be located at least 1,000 ft or more from one another,and has acknowledged
that their impacts on the community(including those seeking legitimate recovery), are
greater than those associated with other types of group homes(ex.,elderly).
In presentations and discussion, staff reports documenting the hearing officer's ruling
failed to mention the facility at 1115 W Balboa when addressing Over - concentration.
2. Repeated Illegal Business Practices - The record contains evidence of numerous
illegal business practices demonstrated by this operator, including: illegal treatment
of minors; health and safety, fire code violations; and others.
The operator also illegally operated another residential facility at 1219 W Balboa,
which was not identified in his CUP application, but which the operator admitted to
in the December, 2008 public hearing(the initial CUP hearing).
Page 2- Kiff correspondence re group residential use at 1216 W. Balboa
3. Public testimony concerning impacts- A petition concerning impacts and requesting
UP denial and abatement was signed by 43 families with children attending and using
Newport Elementary School and playground and was submitted to the City at the
December, 2008 hearing. Additionally, several parents testified at the hearing.
The City has a duty, both for the neighbors and those seeking legitimate
recovery, to prevent Institutionalization associated with Over- concentration, and
protect public health and safety.
This neighborhood is heavily Over - concentrated with this type of use. This
operator has proven to be irresponsible in his business practices, and has created
risk both to his clients, and the community.This is precisely the reason that
regulation is needed - -- regulation that the City has adopted and enforced with
other uses (including other types of group homes).
We request that the City to uphold the rulings of the Hearing Officer, an affirm
the denial of both Use Permit and Reasonable Accomodation.
Sincerely,
Denys H. Oberman - prepared at the request of:
RESIDENTS Of THE CENTRAL PENNINSULA
STEVEN G. PCUN, ESQ.
Attorney At law RECEIVED
7109 OCT 27 AMW32
c rl �s "'K : �ctober 27, 2009
SENT VIA ELECTRONIC MEAN
David Hunt, Esquire
City Attorney
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Re:
Dear Mr. Hunt,
3�V034 Tr.NNYSON ST. N.W.
WAsmi%6ToN, D.C. 20015
TEL (202) 331 -5848
FAx (202) 537 -2986
SrouN2C'Qe_kRTnu x.Ner
"RECEI'JE AFTER AGEP�OA
PRINTED:"
Appeal of Newport Coast Recovery, LLP
Please be advised that as of October 23, 2009, Newport Coast Recovery, LLP (hereinafter
"NCR "has ceased operations. Based on this change of status, its appeals of the denial of its
application for a use permit and requests for a reasonable accommodation are moot in terms of its
administrative remedies under the Newport Beach Municipal Code. Therefore, NCR will not be
going forward on its appeal before the City Council on October 27, 2009. This should not be
construed as a concession that the issues in the Newport Coast Recovery, LLP, el al v. City of
Newport Beach, Case No. SACV 09- 701 -JVS (RNBx) are also moot since there are now important
issues concerning damages.
During the time period of 2002 -2008, Newport Coast Recovery located at 1216 West Balboa
Blvd, was a viable business entity providing the only residential "men's only," "primary" drug and
alcohol rehabilitation program in Newport Beach.' After the enactment of Ordinance No. 2008-005,
Primary care facilities usually have a program lasting three to four weeks and are an intensive
treatment type which requires a doctor or psychiatrist to examine the patient and refer them to the
facility. Residents stay in the facility is on in- patient basis for the duration of their stay but are
allowed visitors at specified times and only after their first week in treatment. The first week is
generally a time for detoxification if needed or if it has not been completed in a hospital already,
and also a time to settle in and become introduced to the recovery program. The program at a
primary care facility will consist of intensive therapy groups, individual counseling and written
work throughout the day. Also included are attendance at recovery meetings such as Narcotics
Anonymous and Alcoholics Anonymous. In primary care facility, addicts begin the process of
living each day without drugs, yet without much stress of exposure to the outside world as this
may cause heavy emotional reactions resulting in the relapse of the resident.
David Hunt, Esquire Page 2
October 23, 2009
NCR applied for a use permit. The City staff recommended approval of the use permit application.
However, after hearing the complaints made by NCR's neighbors and from representatives of the
Concerned Citizens of Newport Beach, the Hearing Officer denied the application and incorporated
into his decision the unsupported, undocumented, generalized discriminatory animus expressed?
The recommendation of the denial of NCR's use permit had a negative effect on NCR's business.
This decision was appealed to the City Council. After being notified of "after acquired
evidence" concerning allegations of providing residential treatment of two minors, the City Council
remanded the matter for a further hearing on this issue. This was done over the objection of NCR
in that this was a licensing issue and not a zoning issue. At the remand hearing it was apparent that
the City expended considerable time and resources in creating an issue that NCR was operating in
violation of its license, hence it was violating the laws of Newport Beach. NCR objected on the
basis that only the California Department of Alcohol and Drug Programs hasj urisdiction concerning
licensure compliance. As a result of the hearing, the publicity surrounding the treatment of the two
minors, NCR began to receive extremely harassing and vituperative phone calls and emails. This
phone calls and emails were not only directed to the NCR staff at work, but also to the homes of
NCR's principals and their families. In addition, NCR's business was so adversely affected in the
manner that the City chose to pursue and publicize this issue that it could no longer afford to stay
in business, hence the closure of the NCR facility.
NCR is preserving all the issues raised in my July 29, 2009 letter to Mr. Allen, which I have
attached.
cc: Christopher Brancart
Newport Coast Recovery
Catherine Wolcott
Patrick Bobko
Dana Mulhauser
Paul E. Smith
'It should be noted that the same complaints were made by the public at the hearings of
Balboa Horizons and Ocean Recovery, which are in same vicinity as NCR. The permits of these
facilities were approved.
STEVEN G. POLIN, ESQ.
Attorney At Law
SENT VIA ELECTRONIC MEAN
Mr. Tom Allen
Hearing Office
City of Newport Beach
Newport Beach, CA
Dear Mr. Allen:
RECEIVED
79 OCT 27 AM 11, 32
cf
CliYj(lly'29 '2tlOt3 - ""
Reasonable Accommodation Request
Newport Coast Recovery
3034 "IT.Nwr -4 ST. N.W.
WAsnIN6TON, D.C. 20015
TFi (202) 331 -5848
FAx (202) 537 -2986
SP0Un2@ranTnuNx.KeT
Please consider this as additional supplemental to the record of the request of Newport Coast
Recovery ( "NCR ") for a reasonable accommodation in the application of the City of Newport
Beach's zoning code.
STATE LICENSING AND COMPLIANCE, WITH STATE LICENSING
In 2007, the City of Newport Beach commenced a campaign to convince state officials that
the Department of Alcohol and Drug Programs ( "ADP ") should take into consideration whether a
city has more than its fair share of substance abuse treatment facilities and whether
overconcentration of such facilities should be part of the licensing criteria for application for new
and renewed licenses. (See Exhibits A and B) (Health & Safety Code §§ 11834.01 - 11834.50. The
City's position was rejected by the California Attorney General in opinion number 90Ops. Cal. Ally.
Gen. 109. (See Exhibit C) The Attorney General opined in the negative to the question of whether
the Department of Alcohol and Drug Programs can deny an application for licensure or suspend or
revoke the license of an alcoholism or drug abuse treatment facility because the particular
community already has more than a sufficient number of treatment facilities to meet the local need.
Specifically, the Attorney General stated "... each licensure applicant must complete an application
form, obtain a fire clearance, and pay a fee to the Department. (Sec also § 11834.09, subd. (b).)
Sections 11834.01 and 11834.03 provide no authority for the Department to deny a license because
the community already has an overconcentration of such facilities." The City is pre - empted by
Health & Safety Code § 11834.01 - 11934.50 from denying a use permit or reasonable accommodation
request by a facility licensed by ADP on the basis of overconcentration.
In the same opinion, the Attorney General opined that only ADP has the authority to deny,
suspend or revoke a license based on the standarjs set by the State Legislature. The City seeks to
sidestep this requirement and use permit process as a vehicle to determine NCR's compliance with
Tom Allen
Hearing Officer
July 29, 2009
2
its licensure requirements. The City seeks to make a record and convince the Hearing Officer that
NCR acted in violation of state law in the admission of two minors into its facility. Both the City
and the parents of the minors have complained to both the Department of Social Services ( "DSS ")
and ADP about this incident. The City's only legal recourse is to complain to DSS and ADP about
what it perceives to be NCR's violation of its licensure.
A request for a reasonable accommodation is not a licensure compliance hearing or an
adjudication on compliance with state licensure standards. The City alleges that NCR has engaged
in a "pattern and practice" of violating state and local law. The City cannot deny a request for a
reasonable accommodation on the basis of incident that may be a minor violation of its licensure
requirements. One incident does not a "pattem and practice" make. See, United States v. Parma, 661
F.2d 562, 573 (6th Cir. Ohio 1981 xA pattern and practice suit necessarily involves a number of
discriminatory acts.) ne City erroneously asserts that an investigation by two state agencies
involving the same incident constitutes a pattern and practice of violating state or local law. DSS
closed out its investigation without taking any action. ADP allegedly has stated that it will
investigate the incident.
Regardless of the outcome of the ADP investigation, this tribunal is without authority to use
an alleged licensing violation as the basis for denying NCR's request of a reasonable
accommodation. Matters relating to licensure are not proper matters for consideration in a zoning
hearing. See. Oconomowoc Residential Programs v. City of Greenfield, 23 F. Supp. 2d 941, 958
(L•.D. Wis.1998); Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775,785
(7th Cir. Wis. 2002)(Complaints about mistreatment of patients which does not result in refusal,
revocation or suspension of license by the State agency found not to have a causal connection to
matters relating to zoning.) The crux of the dispute raised by the parents of the minors is contractual
in nature. It's a business dispute. It may or may not be a violation of NCR's license, and if it is it
may be considered a minor infraction. There are appropriate forums and means for addressing such
a dispute. Unfortunately for NCR, the Hearing Officer accepts the complaints of the parents at face
value and has included the complaints to the findings in denying NCR's request for a reasonable
accommodation.' NCR has operated as NCR at this location since 2002. It is quite obvious that the
City staff has expended a considerable number of man hours to secure the testimony of the two
parents, emailing ADP, amending and appending the staff report to put before the Hearing Officer
one incident, which occurred in March, 2009. StafT'has alluded to other complaints it has received
since the hearing which has not been shared with NCR or its attorneys. Notwithstanding the
'Many of the allegations of one of the parents about her contact with NCR cannot be
verified. For instance, one of the parent's claims a demand has been made to both Mr. Newman
and the attorneys for NCR. There is no such record of such a demand being made. The City has
muddied the waters by bringing the parents into the hearing and giving a statement that is not
subject to cross examination to complain about NCR.
Tom Allen
Hearing Officer
July 29, 2009
immense expenditure of resources to convince by the City's Staff, it has failed to demonstrate a
connection between issues of licensure and zoning.
The City intentionally placed NCR in a position of facing serious allegations in a public
forum without the ability or the legal means to respond. It is error and a violation of federal law to
find that "NCR refused to respond to the allegations." NCR is prohibited by federal law from
disclosing much less discussing its clients and substance abuse treatment history. See 42 U.S.C.
2901313-2; 42 CFR 2.22, et seq.
REASONABLE ACCOMMODATION ANALYSIS
The staff recommendation is that a finding cannot be made as to future residents concerning
the necessity of residing in NCR. The staff concluded that there exist other similar facilities in close
proximity to NCR that future residents could choose. (Staff report, page 13) This conclusion is
contrary to the law on reasonable accommodation. Schwarz v. City of Treasure Island, 544 F.3d
1201, 1225 - 1226( 11th Cit. 2008X The availability of another dwellingsomewhere within the City's
boundaries is irrelevant to whether local officials must accommodate recovering substance abusers
in the halfway houses of their choice.) See Howard v. City of Beavercreek, 276 F.3d 802, 806 -07
(10th Cit. 2002) (analyzing whether the requested accommodation was necessary to afford the
plaintiff an "equal opportunity to enjoy the housing ... of his choice "); Hovsons, Inc. v. Township
of Brick, 89 F.3d 1096, 1103 (3d Cir. 1996xrejecting argument that township reasonably
accommodated plaintiff by allowing construction of a nursing home in another area of town).
42U.S.C. 3604( I)( 3)( B) contains three operative elements: "equal opportunity," "necessary,"
and "reasonable."
With respect to the phrase "equal opportunity," the House Report on the Fair Housing Act
offers relevant context:
The Fair Ilousing Amendments Act, like Section 504 of the Rehabilitation Act of
1973, as amended, is a clear pronouncement of a national commitment to end the
unnecessary exclusion of persons with handicaps from the American mainstream.
House Comm. on the Judiciary, Fair Housing Amendments Act of 1988, H.R. Rep.
No. 711, 100th Cong., 2d Sess. 18, reprinted in 1988 U.S.C.C.A.N. 2173, 2179
(footnote omitted) (hereinafter 1988 U.S.C.C.A.N.) (emphasis added).
A cogent analysis of "equal opportunity" can be found in Smith & Lee Assocs. v. City of
Taylor, 102 F.3d 781, 794 -795 (6th Cit. 1996). The Court stated:
We find persuasive the analysis of courts that define equal opportunity under the
FHAA as giving handicapped individuals the right to choose to live in single - family
Tom Allen
Hearing Officer
July 29, 2009
neighborhoods, for that right serves to end the exclusion of handicapped individuals
from the American mainstream: The Act prohibits local governments from applying
land use regulations in a manner that will exclude people with disabilities entirely
from zoning neighborhoods, particularly residential neighborhoods, or that will give
disabled people less opportunity to live in certain neighborhoods than people without
disabilities. Bryant Woods Inn, Inc. v. Howard County, 911 F. Supp. 918, 946 (D.
Md. 1996) (citation omitted); see also City of Edmonds v. Washington State Bldg.
Code Council, 18 F.3d 802, 806 (9th Cir. 1994), afPd, I IS S. Ct. 1776 (1995)
( "Congress intended the FHAA to protect the right of handicapped persons to live in
the residence of their choice in the community. "). Moreover, the phrase "equal
opportunity," at least as used in the FHAA, is concerned with achievingequal results,
not just formal equality. See City of Edmonds, 18 F.3d at 806 ( "The FIJAA imposes
an affirmative duty to reasonably accommodate handicapped people. "); Proviso Assn
of Retarded Citizens v. Village of Westchester, Ill., 914 F. Supp. 1555, 1563 (N.D.
Ill. 1996) (rejecting city's argument that "because Plaintiffs are subject to
requirements imposed on all groups of unrelated non - disabled people, they have an
'equal opportunity' to live in the ... dwelling ").
4
The City Staff ignores the requirement that a future resident's "equal opportunity" is a choice
that person gets to make, not a choice the City can make by making one less dwelling unavailable
or asserting as long as there are other facilities of a similar nature, then a residents "choice" of
housing will be preserved.
The Staff Report states that NCR failed to provide information as to what the optimum
number of residents would make it financially viable. (Staff report, page 15). NCR is not required
to put forward any information on financial viability unless it is seeking an accommodation in whole
or in part on financial viability. The City has not put forward any case law that an applicant is
required to demonstrate financial viability if it is not seeking an accommodation based on the same.
The burden is on the City to show that the requested accommodation is unreasonable. The City has
failed to do so. As was argued above, the City cannot claim that NCR committed "illegal acts" on
issues involving licensing and refuse to grant an accommodation that involve land use and zoning.
The City has consistently applied the wrong standard in determining whether the applicant's
requests are reasonable. The standard is whether the request seems reasonable on its face. US
Airways, Inc. v. Barnett, 535 U.S. 391, 401A02 (2002). The burden then shifts to the City to
demonstrate that the requested accommodation is an undue burden financially or administratively
or will fundamentally alter its zoning scheme. The City concedes that it will not be burdened
financially or administratively.
The City posits that granting the requested accommodation will cause a fundamental
alteration to the City's general plan because it would allow more than one such facility per block and
Tom Allen
Hearing Officer
July 29, 2009
5
would cause overconcentration. All requests for a reasonable accommodation in the land use context
require an alteration to a "rule, policy, practice or procedure." An alteration is not a fundamental
alteration. Allowing NCR to continue at a location it operated at since 2002 is not a "fundamental
alteration" of the City's zoning ordinances. This is supported by the fact that the City has approved
use permits for similar facilities in the same vicinity. The City's erroneously believes that granting
the requested accommodation would result in an overconcentration of residential care facilities.
Overconcentration arguments have been rejected as violating the Fair Housing Act. Oconomowoc
Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 787 (7th Cir. 2002)(City's
overconeentration argument resulting in disproportionate costs to emergency services for those
facilities rejected); Reg'l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 50 (2d
Cir.2002XArgument that granting variance would cause an overconcentration of residential and
social services facilities in the City found to be pretext for discrimination). Oxford house -C v. City
of St. Louis, 843 F. Supp. 1556, 1577 (E.D. Mo. 1994), rev'd in part, 77 F.3d 249 (8"' Cir.
19%)(City's fear that it was being unduly singled out for an over- concentration of social service
institutions has some basis in fact. These concerns, however, do not justify discrimination against
the handicapped. Simply put, the complaint of "no more in my back yard" is just as unacceptable an
excuse for discrimination against the handicapped as the discriminatory cry of "not in my back yard."
), See also, See Horizon House Developmental Services, Inc. v. Township of Upper Southampton,
804 F. Supp. 683, 698 ( "the FHAA rejects any notion that a Township can somehow avoid the
anti- discrimination mandate by accepting some sort of'fair share' or apportionment of people with
disabilities "), afj°d 995 F.2d 217 (3rd Cir. 1993).
Adopting the discriminatory animus of the community opposition to the granting of the
request for a reasonable accommodation and to support the overconcentration argument in a
violation of the Fair Housing Act. Adopting assertions put forward to those who oppose NCR on the
basis that the presence of the recovering alcoholics and substance abusers diminishes the quality of
life becomes actionable discrimination becomes discriminatory when it is adopted by a city official
in decisions to deny land use permits or requests for reasonable accommodations.
The record is quite clear that the Hearing Officer is more than willing to accept without
question each statement made by each member of the community concerning complaints about the
conduct of what is thought to be residents of NCR. It should be noted that these same citizens
appeared before the same Hearing Officer and presented the same complaints about the applications
made by Ocean Recovery and Balboa Horizons. It is ironic that the complaints were not credited
in those applications but were credited against NCR.
The law is quite clear that "even where individual members of government are found not to
be biased themselves," a group home provider may demonstrate a violation of the FHAA if it can
show that "discriminatory governmental actions are taken in response to significant community
bias." Tsomlwnidis v. City of West Haven, 129 F. Supp. 2d 136,152 (D. Conn. 2001), rev d on other
groundv, 352 F.3d 565 (2d Cir. 2003). Accordingly, "a decision made in the context of strong,
Tom Allen
Hearing Officer
July 29, 2009
0
discriminatory opposition becomes tainted with discriminatory intent even if the decision - makers
personally have no strong views on the matter." Innovative Health Sys, Inc. v. City of White Plains,
117 F.3d 37, 49 (2d Cir. 1997); see also Samaritan Inns v. District of Columbia, 1995 U.S. Dist.
LEXIS 9294,rev'd on other grounds, 114 F.3d 1227 (D.C. Cir 1997) (finding a violation of the
FHAA when government officials were influenced by political pressure exerted by the area
residents); McKinney Found. v. Town Plan & Zoning Comm'n, 790 I'. Supp. 1197, 1212 (D. Conn.
1992) (same); Support Ministries for Persons with AIDS, Inc. v. Village of Waterford, 808 F. Supp.
120, 134 (N.D. N.Y. 1992) (finding that zoning officials violated the FHAA when they bowed to
political pressure exerted by those hostile to persons with alcohol and drug - related disabilities);
United States v. Audubon, 797 F. Supp. 353,361 (D.NJ. 1991)( Discriminatory intent found where
Audubon officials stated they agreed with or were responding directly to community opposition).
See also Cmry. Hous. Trust v. Dept of Consumer & Regulatory Affairs, 257 F. Supp. 2d 208, 226
(D.D.C.2003).
Unfortunately for all concerned, the unsupported discriminatory animus of the those opposed
to NCR's applications have infected the proceedings and now forms the crux of the denial by the
Hearing Officer.
HOUSING ELEMENTS AND CONSOLIDATED PLANS
The City misstates the actions of the Department of Housing and Community
Development( "HCD ") in its review of the City's Housing Element Plan. In a letter dated October
24, 2008 to David Lepo, Planning Director, City of Newport Beach, the Deputy Director of HCD
which advised the City that revisions were required in the City's Housing Element Plan to bring it
into compliance with State law. In particular HCD found that the City's group home ordinance
constituted a "constraint on persons with disabilities." HCD is requiring the City to provide a
detailed description of the City's group home ordinance and analyze it for requirements that may
constrain housing for persons with disabilities. (See Attached Exhibit D, at HCD 6). The other
deficiency HCD found that is relevant to this applicant is that when the City amended its zoning code
to address the issue of group homes, it failed to identify zones where transitional housing will be
permitted and conditionally permitted. State Law, specifically SB 2, requires the City to demonstrate
that transitional and supportive housing are treated as residential uses subject only to those
restrictions that apply to other residential uses of the same type in the same zone. (Exhibit D, at HCD
5).
Please contact me or my co- counsel, Christopher Brancart, if you need to discuss these issues
further, or in need of additional information.
Tom Allen
Hearing Officer
July 29, 2009
�<if�'
cc: Patrick Bobko
Catherine Wolcott
Christopher Brancart
Newport Coast Recovery
Dana Mulhauscr
Paul E. Smith
"RECEIVED R AGENDA
October 23, 2009
Dear Ms. Brown,
We are requesting that this letter be included as part of the public record for the
October 27'h, 2009 hearing regarding the Group Residential Use Permit appeal for
Newport Coast Recovery at 1216 W. Balboa Blvd.. We are writing to you to voice our
strong support to uphold the denial of the Group Residential Use Permit for this facility.
This facility and its clients have consistently operated in a manner that is detrimental to
the local neighborhood. Noise, profanity, illegal gatherings, excessive second hand
smoke on adjoining properties, no full time supervision, utilization of parking garages for
meeting rooms were all substantiated by the neighbors. This facility has also treated
minors; which is in violation of Newport Recovery's license. Additionally, this facility
is in close proximity to other previously approved residential care facilities which
represents an over - concentration of these businesses in our neighborhood, and more
importantly, the number of these businesses that are close to Newport Elementary School
and playgrounds. We believe that the City of Newport Beach has done its due diligence
and has compiled strong and compelling evidence that this permit appeal should be
denied. We all support legitimate rehab /recovery efforts and programs. We do not
support:
• over - concentration of these facilities in our residential neighborhoods;
• irresponsible, poor operators providing little or no supervision to large groups of
at -risk individuals;
• operators that violate their own license requirements.
The City has already approved over 40 facilities in the Coastal/West Newport area alone.
Enough is enough.
The citizens and residents of this great community need to have their voices heard and
rights upheld, as well.
Sincerely,
Terry and Laurie McKenzie
1151 West Balboa Blvd.
Balboa, CA 92661
urr ter. �,T nr
Washington, Lillian
From: Kiff, Dave
Sent: Monday, October 26, 2009 11:31 AM
To: City Clerk's Office
Subject: FW: Rehab homes and property values
For the record.
Dave
From: Billings, Tom [ mailto :Tom.Billings@camoves.com]
Sent: Monday, October 26, 2009 9:15 AM
To: Henn, Michael
Cc: Kiff, Dave
Subject: Rehab homes and property values
Dear Mike and Dave,
I'm writing in support of stronger regulation and control of rehab homes in Newport Beach, particularly on the Peninsula
and West Newport communities. As a realtor who recently held numerous open houses at 12th and Oceanfront, I wanted
to share some information that you may not be aware of:
-The 12th St. area has historically been a strong 'residential' neighborhood vs. heavier rental areas like West Newport.
The emergence of several rehab homes in that area is changing that.
-In addition to 1216 W Oceanfront, there are three other Rehab homes within 112 mile of the property I had listed.
-As agents, we are required by law to disclose to prospective buyers and sellers 'environmental' concerns that could affect
the quality of life in a neighborhood surrounding a home for sale.
-A huge concern is the safety and health of children that attend Newport El which is one to two blocks away from these
homes.
-These homes negatively impact the values of properties in that area since it must be disclosed to prospective buyers
and sellers.
In this already challenging market due to economic conditions, having illegal rehab homes and their occupants moving
into a residential neighborhood like 12 St. exacerbates the problem with a lessening of the quality of life and properly
values that ultimately determine the character of our city.
The quality and character of the peninsula and Newport Beach in general is one of safety, beauty and healthful lifestyles.
That has clearly already changed but we can stop further decline by enforcing the law.
In short, we all know how special Newport and the peninsula is. I urge you and the council to hold your ground and
uphold the law because there is too much to lose by not doing so.
Thank you,
Tom Billings
Brown, Leilani
From: Steve Barnard [barnard.co @sbcglobal.netj
Sent: Monday, October 26, 2009 11:48 AM
To: Brown, Leilani "RECEIVED AFTER AGENDA
Cc: 'Douglas M. Wood'; breasy @aol.com MN I EY' I D• 1102
Subject: City Council hearing re: 1216 W. Balboa Blvd.
City Council c/o City Clerk
I am writing to request denial of the appeal on 1216 West Balboa Blvd.
The hearing officer made the correct decision at the hearing and it should not be reversed.
Newport Coast Recovery, the operators, were, and are, in violation of state law, they cannot and did not control their
clients which, in conjunction with the overconcentration of units in the area, is an overriding burden on the
neighborhood. The testimony of a number of witnesses including the mother of one minor aged 18 now, who testified
that Newport Recovery required her to pay $30,000. In advance to accept her son for admission to the facility on the
representation that there would be an M. D. on call at all times. In fact, there was no M. D., he was the only minor and
was housed with all adults with no supervision — a violation of state law. Newport Coast Recovery has not, does not and
will not meet the state requirements to operate.
These folks are exactly the type and character that the city should be removing from the drug and alcohol recovery
scene. Again, I respectfully request that their appeal be denied.
Stephen Barnard, 1100 West Bay Ave, Balboa, CA 92661
NOTICE OF PUBLIC HEARING
GROUP RESIDENTIAL CARE FACILITY
USE PERMIT AND REASONABLE ACCOMMODATION
NEWPORT COAST RECOVERY, LP
NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will conduct a public hearing on
October 27, 2009, at 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport
Beach, Califomia. The City Council will consider an appeal of the Hearing Officer's decisions to deny the applications
filed by Newport Coast Recovery, LP for Use Permit No. 2008 -033, and Reasonable Accommodation No. 2009 -009 for
property located at 1216 West Balboa Boulevard. The appeals were filed by the applicant. Following is a brief
description of the applications:
• Use Permit No. 2008 -033: An application requesting approval of a use permit to allow a residential care facility to operate
a licensed adult alcohol and/or drug abuse recovery treatment facility for men only.
• Reasonable Accommodation No. 2009-009: A Reasonable Accommodation application for an existing residential care
facility to operate a licensed adult alcohol and/or drug abuse recovery and treatment facility in an R -2 District, where such
uses are not permitted. The applicant requests the following:
1. An exemption from the portions of NBMC Section 20.10.020 (Residential Districts: Land Use Regulations) that require
Residential Care Facilities, General to be established only in residential districts zoned Multi- Family Residential (MFR)
with a use permit, subject to the operational conditions recommended by City staff in the January 12, 2009 staff report
for Use Permit No. 2008 -33, including a maximum occupancy of 14 residents, which was denied by the Hearing Officer;
or, in the alternative.
2. An exemption from the requirements specified in NBMC Section 20.91A.050 (Development and Operational Standards),
including a waiver of the occupancy restriction of two persons per bedroom plus one staff member, and to allow a total
occupancy of 18 residents;
3. An exemption from the parking requirements of one off- street parking space for each three resident beds, as specified in
NBMC Section 20.66.030 (Off-Street Parking and Loading Requirements) for Residential Care, General use
classifications, and to apply the off -street parking requirements applicable to Two - Family Residential (R -2) use
classifications which requires two off - street parking spaces per dwelling unit;
4. Treat the use of the licensed residential care facility as a legal nonconforming use;
5. Apply the California Building Code provisions that were applicable at the time the residential care facility was established
as relates to life and fire safety matters; and
6. A waiver of the required finding specified in NBMC Section 20.91A.060 (D), relative to the compatibility of the use with
the character of the surrounding neighborhood, which requires a finding that the continued use will not contribute to the
changing of the residential character of the neighborhood, such as creating an overconcentration of residential care uses
in the vicinity, and waiving the impact analysis contained in the Factors A through C which the Hearing Officer must
consider in making or sustaining the finding with regard to the proximity of the use to schools, churches, playgrounds,
day care centers, and alcoholic beverage outlets, and the application of the American Planning Association standard of
permitting one or two such uses per block.
This activity has been determined to be categorically exempt under the requirements of the Califomia Environmental
Quality Act (CEQA) under Class 1 (Existing Facilities). This class of projects has been determined not to have a
significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the
general rule that CEQA applies only to projects that have the potenfial for causing a significant effect on the environment
(Section 15061(bx3) of the CEQA Guidelines). It can be seen with certainty that there is no possibility that this activity
will have a significant effect on the environment and 4 is not subject to CEQA.
All interested parties may appear and present testimony in regard to this application. If you challenge this project in court,
you may be limited to raising only those issues you or someone else raised at the public hearing (described in this notice)
or in written correspondence delivered to the City, at, or prior to, the public hearing. The staff report may be reviewed at
the City Clerk's Office, City of Newport Beach, 3300 Newport Boulevard, Newport Beach, Califomia, 92663 or at the City
of Newport Beach website at www.citv.newport- beach.ca.us beginning on the Wednesday prior to the hearing. For more
information, call (949) 644 -3232 or (949) 644 -3002. To be added to a permanent notification list of these hearings, e-
mail ibrownPriewnortbeachca.aov and ask to receive these notices.
Project File No.: PA2008 -104 Activity No.: UP2008 ZZ, A2009 -009
0
Leilaru I. Brown
City Clerk
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ROGER V BOYVEY TECHENTIN THOMAS A
1139 W BALBOA BLVD 640 MAGNOLIA AVE
NEWPORT BEACH, CA 92661 PASADENA, CA 91106
047 261 01 047 26102
JOHN WELLS EARL DEXTER
1140 W BAY AVE ���2659
NEWPORT BEACH, CA 92661
047 263 01 047 263 02
HARRIET V PHILLIPS ALBERT C WALTERS
481 VEREDADELCIERVO 1125 W BAY AVE
GOLETA, CA 93117 NEWPORT BEACH, CA 92661
047 263 04 047 26320
DOUGLAS M WOOD DAVID LONGRIDE
1214 E BALBOA BLVD 8006 E EUCALYPTUS TRL
NEWPORT BEACH, CA 92661 ORANGE, CA 92869
047 263 22 047 263 23
JOHN M SCIARRA GRACF M STFINHOFF
4,120 WOOOLEIGiI LN t 1.:t 1,;1; {i.1A !�_ "•iJ �:,:
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MARK M LUCAS DARWIN U812 N KALAHEO AVE #L 1249.5 W
KAILUA, HI 96734 NEW,9w6<T BEACH, CA 92661
939 710 17 939 71.0 18
PATRICIA BOTWINICK MICHAEL K FLYNN
1201 W BALBOA BLVD 4738 E INGRAM ST
NEWPORT BEACH, CA 92661 MESA, AZ 85205
939 710 22
HIRAM D CARRINGTON III
1710 N CATALINA AVE
PASADENA. CA 91104
LAW OFFICES OF KELLY S JOHNSON
Aim. KELLY S JOI INSON
180 NEWPORT CENTER DRIVE #100
NEWPORT BEACH. CA 92660
PA2008 -104 for UP2008 -033 Council District 1
1216 W Balboa Blvd 79 Labels
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CONSTANCE C QUARRE
3 MONTEREY CIR
CORONA DEL MAR, CA 92625
047 261 03
EARL DEXTER
0 PO BOX 15875
NEWPORT BEACH, CA 92659
047 263 03
ALLEN KLINGENSMITH
453 VIA LIDO SOLID
NEWPORT BEACH, CA 92663
047 263 21
DAVID G RUCKER
1136 W BALBOA BLVD
NEWPORT BEACH, CA 92661
047 263 24
DOLORESJSHAW
1.150 W 6.ALBOA Ii-\: U
NEWPORTBEACII,CA 92661
939 710 12
DARWIN K PEARSON
1249.5 W BALBOA BLVD
NEWPORT BEACH, CA 92661
939 710 21
CRAIG A MILLS
2703 BOTTICELLI DR
HENDERSON, NV 89052
CENTRAL NEWPORT BEACH
COMMUNITY ASSOC
808 W BALBOA BLVD
NEWPORT BEACH, CA 92661
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AHE CLYDE V VONDER
226 S RIMPAU BLVD
LOS ANGELES, CA 90004
047 232 04
ANTHONY S DELFINO
1224 W BAY AVE
NEWPORT BEACH, CA 92661
047 232 07
JOHN W HANCOCK LTD
192 N MARINA DR
LONG BEACH, CA 90803
047 233 13
JAMES A FRASER
900 HILLCREST PL
PASADENA, CA 91106
047 234 02
IRENE ELSIE BOTTS
1225 W BAY AVE
NEWPORT BEACH, CA 92661
04723406
MICHAEL D BECKMAN
967 GREEN OAK LN
GLENDORA, CA 91741
047 234 09
STUART MCKENZIE
1205 W BAY AVE
NEWPORT BEACH, CA 92661
047 234 13
JAMES H MCKENNON
1930 PORT DUNIEIGH CIR
NEWPORT REACH, CA 92660
047 234 16
JOSEPH W & NICOLE A HAY
1230 W BALBOA BLVD 4D
NEWPORT BEACH, CA 92661
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MURRIETA, CA 92563
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J F & L B JENKINS JR.
1236 W BAY AVE
NEWPORT BEACH, CA 92661
047 232 05
P A SENIZERGU
291 ETTE RD
PORT BEACH, CA 92663
047 232 09
RONALD B LABOWE
1200 W BAY AVE
NEWPORT BEACH, CA 92661
047 233 14
JOANN F CLARKE
1300 W BALBOA BLVD
NEWPORT BEACH, CA 92661
047 23403
CHARLES C HAMILTON
12.1.3 }qr BAY AVE
NEWPORT BEACH, CA 92661
047 234 07
DONNA L STEVENS
1209 W BAY AVE
NEWPORT BEACH, CA 92661
047 234 10
STEVEN J HAYES
3655 PRUNERIDGE AVE #115
SANTA CLARA, CA 95051
047 23414
HAYES PROPERTIES LLC
16882 CORAL CAY LN
HUNTINGTON BEACH. CA 92649
047 234 18
DENNIS L GRIEBEL
1036 W BALBOA BLVD #B
NEWPORT BEACH, CA 92661
047 23422
JEFF MYERS
1215 W BAY AVE
NEWPORT BEACH, CA 92661
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047 232 03
LOUISE C CHAPMAN
1226 W BAY AVE
NEWPORT BEACH, CA 92661
047 232 06
P A SENIZERGUES
2912 LAFAYETTE RD
NEWPORT BEACH, CA 92663
047 233 12
HAGOP TOOKOIAN
1305 W BAY AVE
NEWPORT BEACH, CA 92661
047 233 15
WILLIAM D WITTING
211 TRAFALGAR LN
SAN CLEMENTE, CA 92672
047 234 04
KELLEEEN ANN FITZGFORGE
1221 %V BAY AV F
NEWPORT BEACH, CA 92661
047 23408
JACKIHARA
2374 ROSCOMMON AVE
MONTEREY PARK, CA 91754
047 234 11
RICHARD M FRANCISCO
1200 W BALBOA BLVD #C
NEWPORT BEACH, CA 92661
047 234 15
AMERICAN 1ST CREDIT MTG
4751 WILSHIRE BLVD #203
LOS ANGELES, CA. 90010
047 234 19
HAL TUCKER
3021 CAROB ST
NEWPORT BEACH, CA 92660
047 234 23
CREEK DIVFRSIFIED WILLOW
1100 E BALBOA BLVD
NEWPORT BEACH, CA 92661
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MELVIN SEYMOUR MANN CARPA II LLC
1219 W BAY AVE 111 N SEPULVEDA BLVD #336
NEWPORT BEACH, CA 92661 MANHATTAN BEACH, CA 90266
047 23427 047 234 28
JOHN CRAIG NELSON CAROLYN W
6470 E EL JARDIN ST 256 HITE SANDS ST
LONG BEACH, CA 90815 DA A POINT, CA 92629
047 240 01 047 241 02
SCHOOL NEWPORT BEACH MARILUE K CENOZ
0 PO BOX 1368 0 PO BOX 987
NEWPORT BEACH, CA 92659 NEWPORT BEACH, CA 92661
047 241 04
047 2410S
HAROLD L O'NEAL
BLANCHARD
2163 SHIRE DR
5 SEA COVE LN
EL CAJON, CA 92019
NEWPORT BEACH, CA 92660
047 24108 047 24109
FRANK JBRUDER 1 FRANK IBRUDER
1160 11FEAN •CIR 1160 I IFFANY OR S
PA SPRINGS, CA 912W PALM SPRINGS. CA 92262
047 241 11 047 241 12
DOBLE ONE LLC ANTOINETTE HANSEN
17055 MARINA BAY OR 1205 W BALBOA BLVD
HUNTINGTON BEACH, CA 92649 NEWPORT BEACH, CA 92661
047 241 15
047241 16
DENYS H OBERMAN
BEN YOUNGLOVE
1210 W OCEANFRONT
0 PO BOX 2925
NEWPORT BEACH, CA 92661
NEWPORT BEACH, CA 92659
047 241 18 047 241 19
FIMIANO PETER G GREENFIELD
1220 W OCEANFRONT 924 WESTWOOD BLVD #1000
NEWPORT BFACH. CA 92061 LOS ANGFLES. CA 90024
047 241 21 047 24123
GCL LAURENCF K LEICHTFUSS
1232 W OCEANFRONT 2844 E BLUERIDGE AVE
NEWPORT BEACH, CA 92661 ORANGE, CA 92867
047 25101
TERENCE JAMES MCKENZIE
1151 W BALBOA BLVD
NEWPORT BEACH. CA 92661
047 25102
THEODORE MARK LEVENTHAL
207 N BAYFRONT
NEWPORT BEACH, CA 92662
*0915 *Amv w p8 M =gI"
+oNd 0 mWW nnoribpa
047 234 26
DANA GAUL
1400 BRISTOL STN #200
NEWPORT BEACH, CA 92660
047 234 29
CAROLYN W BAUM
25691 WHITE SANDS ST
DANA POINT, CA 92629
047 24103
JEFF & JENIFER MCANINCH
17585 PAGE CT
YORBA LINDA, CA 92886
047 241 07
JOHN JAMES WEST
22111 CAPE MAY LN
HUNTINGTON BEACH, CA 92646
047 241 10
DOBLE ONE LLC
17055 MARINA BAY UR
HUNTINGTON BEACH, CA 92649
047 241 14
MARY L LEAR
3000 BEACON ST
NEWPORT BEACH, CA 92663
047 241 17
MICHAEL A SALTMAN
1216 W OCEANFRONT
NEWPORT BEACH, CA 92661
047 241 20
MICHAEL 1 RYAN
1228 W OCEANFRONT
NFWPORT BFACH. CA 92661
047 241 24
BARBARA J LOVELL
1242 W OCEANFRONT
NEWPORT BEACH, CA 92661
047 2 S 1 03
JOHN VYN
14751 MULBERRYAVE
IRVINE, CA 92606
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RESIDENT
1216 OCEANFRONT W
NEWPORT BEACH, CA 92663
047 234 07
RESIDENT
1209 BAY AVE W
NEWPORT BEACH. CA 92663
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RESIDENT
1213 BAY AVE W
NEWPORT BEACH, CA 92663
047 241 19
RESIDENT
1224 OCEANFRONT W
NEWPORT BEACH, CA 92663
Council District 1
125 Labels
Occupant
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047 23406
RESIDENT
1211 BAY AVE W
NEWPORT BEACH, CA 92663
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047 241 20 047 263 21 047 234 11
RESIDENT RESIDENT RESIDENT
1228 OCEAN FRONT W 1136 BALBOA BLVD W 1200 BALBOA BLVD W B
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92663
047 234 11 047 234 11 047 241 15
RESIDENT RESIDENT RESIDENT
1200 BALBOA BLVD W A 1200 BALBOA BLVD W C 1210 OCEANFRONT W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 24103 047 263 01 047 23413
RESIDENT RESIDENT RESIDENT
1241 BALBOA BLVD W 1127 BAY AVE W 1212 BALBOA BLVD W C
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92663
047 234 13 047 234 13 047 234 08
RESIDENT RESIDENT RESIDENT
1212 BALBOA BLVD W B 1212 BALBOA BLVD W A 1207 BAY AVE W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 241 08 047 234 26 047 234 26
RESIDENT RESIDENT RESIDENT
1221 BALBOA BR +D IA' 12'4 BAI.ROA BLVD W D 1234 BALBOA BLVD W B
NEWPORT BEACH, CA 92663 NEWPORT BFACH, CA 92663 NEWPORT BEACH, CA 92663
047 234 26 047 234 26 047 23426
RESIDENT RESIDENT RESIDENT
1234 BALBOA BLVD W F 1234 BALBOA BLVD WE 1234 BALBOA BLVD W A
NEWPORT BEACH, CA 92563 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 23426 047 21429 047 234 29
RESIDENT RESIDENT RESIDENT
1234 BALBOA BLVD W C 1204 BALBOA BLVD W C 1204 BALBOA BLVD W B
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 234 29 047 251 02 047 233 15
RESIDENT RESIDENT RESIDENT
1204 BALBOA BLVD W A 1145 BALBOA BLVD W 1304 BALBOA BLVD W
NFWPORT BEACH. CA 92663 NFAA,'PORT BFACH. CA 97661 NEWPORT BFACH, CA 82663
047 233 15 047 23425 047 23404
RESIDENT RESIDENT RESIDENT
1306 BALBOA BLVD W 1217 BAY AVE W 1221 BAY AVE W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 23404 047 233 13 047 234 16
RESIDENT RESIDENT RESIDENT
1221 BAY AVE W 112 1301 BAY AVF W 1230 BALBOA BLVD WD
NEWPORT BEACH, CA 92663 NEWPORT BFACH, CA 92663 NEWPORT BEACH, CA 92663
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047 234 16 047 234 16 047 234 16
RESIDENT RESIDENT RESIDENT
1230 BALBOA BLVD W C 1230 BALBOA BLVD W B 1230 BALBOA BLVD W A
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 251 22 047 241 10 047 241 10
RESIDENT RESIDENT RESIDENT
1136 OCEAN FRONT W 1213 BALBOA BLVD W 5 1213 BALBOA BLVD W 6
NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 241 10 047 23204 047 251 01
RESIDENT RESIDENT RESIDENT
1213 BALBOA BLVD W4 1224 BAY AVE W 1149 BALBOA BLVD W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92661
047 234 02 047 23402 047 263 02
RESIDENT RESIDENT RESIDENT
1225 BAY AVE W1/2 1225 BAY AVE W 1125 BAY AVE W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92661
047 23201 047 241 18 047 263 22
RESIDENT RESIDENT RESIDENT
1240 BAY AVE W 1220 OCEAN FRONT W 1140 BALBOA BLVD W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH. CA 92661
047 241 09 047 23424 047 234 24
RESIDENT RESIDENT RESIDENT
1219 BALBOA BLVD W 1219 BAY AVE W B 1219 BAY AVE W A
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 234 28 047 23428 04723429
RESIDENT RESIDENT RESIDENT
1208 BALBOA BLVD W C 1208 BALBOA BLVD W A 1208 BALBOA BLVD W B
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 241 16 047 251 04 047 263 23
RESIDENT RESIDENT RESIDENT
1212 OCEANFRONT W 1139 BALBOA BLVD W 1144 BALBOA BLVD W
NEWPORT BEACH. CA 92663 NEWPORT RFACH. Ui 92661 NE% ^.1PORT BEACH. CA 92661
047 234 19 047 234 19 047 234 19
RESIDENT RESIDENT RESIDENT
1244 BALBOA BLVD W4 1244 BALBOA BLVD W 6 1248 BALBOA BLVD W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 234 19 047 234 19 047 234 19
RESIDENT RESIDENT RESIDENT
1244 BALBOA BLVD W 3 1244 BALBOA BLVD W5 1244 BALBOA BLVD W 1
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
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047 234 19 047 241 12 047 24107
RESIDENT RESIDENT RESIDENT
1244 BALBOA BLVD W2 1205 BALBOA BLVD W 1225 BALBOA BLVD W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 261 01 047 263 25 047 241 11
RESIDENT RESIDENT RESIDENT
1140 BAY AVE W 1123 BAY AVE W 1209 BALBOA BLVD W 3
NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92663
047 241 11 047 241 11 047 240 01
RESIDENT RESIDENT RESIDENT
1209 BALBOA BLVD W 2 1209 BALBOA BLVD W 1 107 13TH ST
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 240 01 047 263 24 047 26324
RESIDENT RESIDENT RESIDENT
1327 BALBOA BLVD W 1150 BALBOA BLVD W 1/2 1150 BALBOA BLVD W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92661
047 263 24 047 232 06 047 234 27
RESIDENT RESIDENT RESIDENT
1148 BA_BOA BLVD V., 1210 BAY AVF W 1236 BALBOA BLVD 1°J
NEWPORT BEACH, CA 92661, NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
939 710 12 939 710 11 047 24102
RESIDENT RESIDENT RESIDENT
1249 BALBOA BLVD W 112 1249 BALBOA BLVD W 1245 BALBOA BLVD W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 241 21 047 232 05 047 234 18
RESIDENT RESIDENT RESIDENT
1232 OCEANFRONT W 1220 BAY AVE W 1240 BALBOA BLVD W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 23314 047 233 12 047 233 12
RESIDENT RESIDENT RESIDENT
1300 BALBOA BLVD W 1305 BAY AVE W 1305 BAY AVE W 1/2
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH. CA 92663
047 24104 047 234 15 047 234 15
RESIDENT RESIDENT RESIDENT
1237 BALBOA BLVD W 1224 BALBOA BLVD W A 1224 BALBOA BLVD W B
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 2 32 02 047 241 05 047 234 10
RESIDENT RESIDENT RESIDENT
1236 BAY AVE. W 1235 BALBOA BLVD W 1201 BAY AVE W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
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RESIDENT RESIDENT
107 12TH ST 1201 BALBOA BLVD W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
939 710 21 047 261 02
RESIDENT RESIDENT
1229 BALBOA BLVD W 1136 BAY AVE W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92661
047 263 04 047 232 07
RESIDENT RESIDENT
1119 BAY AVE W 1206 BAY AVE W
NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92663
047 251 23 047 234 22
RESIDENT RESIDENT
1140 OCEANFRONT W 1215 BAY AVE W A
NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92663
047 234 09 047 25103
RESIDENT RESIDFNT
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NEWPORT BEACH, CA 92663 NEWPORT BLACK CA 92661
047 26320 047 234 03
RESIDENT RESIDENT
1132 BALBOA BLVD W 1223 BAY AVE W
NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92663
047 26303 047 241 14
RESIDENT RESIDENT
1121 BAY AVE W 1200 OCEANFRONT W
NEWPORT BEACH, CA 92661 NEWPORT BEACH, CA 92663
047 24124 047 234 21
RESIDENT RESIDENT
1240 OCEAN FRONT W 1231 BAY AVE W
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 23203 047 234 14
RESIDENT RESIDENT
1220 BAY AVE W 1216 BALBOA BLVD W 4
NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663
047 2.34 1.1 0.17 234 14
RESIDENT RESIDENT
1216 BALBOA BLVD \•V 3 1216 BALBOA BLVD W 1
IVFWPORT 61ACH, CA 92663 NEWPORT BFACFI, CA 92663
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RESIDENT
1229 BALBOA BLVD W 1/2
NEWPORT BEACH, CA 92663
047 26103
RESIDENT
1132 BAY AVE W
NEWPORT BEACH, CA 92661
04723208
RESIDENT
1200 BAY AVE W
NEWPORT BEACH, CA 92663
047 234 22
RESIDENT
1215 BAY AVE W B
NEWPORT BEACH, CA 92663
047 25103
RESIDENT
1141 BALBOA BLVD':'
NEWPORT BEACH, CA 92661
047 241 23
RESIDENT
1236 OCEANFRONT W
NEWPORT BEACH, CA 92663
047 241 24
RESIDENT
1242 OCEANFRONT W
NEWPORT BEACH, CA 92663
047 234 21
RESIDENT
206 13TH ST
NEWPORT BEACH, CA 92663
047 234 14
RESIDENT
1216 BALBOA BLVD W 5
NEWPORT BEACH, CA 92663
047 234 14
RESIDENT
1216 BALBOA BLVD W 2
NEWPORT BEACH, CA 92663
f .ML< at¢idwat "aw asn
PLANNING DEPARTMENT
3300 NEWPORT BOULEVARD
NEWPORT BEACH, CALIFORNIA 92663
PHONE. 949/644 -3200 FAX 949/644 -3229
Please see the attached radius map and mailing labels created for properties within
a 300 -foot radius of the subject parcel located at 1216 W. Balboa Boulevard in the
City of Newport Beach. County of Orange The property information was acquired
through the Newport Beach GIS Web Mapping system. Further. the information is
based upon the most up -to -date records of the county tax assessor and is deemed
reliable, but is not guaranteed.
- /a& / J 1,01w� October 15, 2009
Signature of Prreparer Date Prepared
F \Users\PLN\Shared \PA's\PAs - 2008\ PA2008- 104\Mailing_Lists \Radius Map & Mailling Labels 06-
09 \Preparer's Statement doc
300 Foot Radius Map
PA2008 -104 for UP2008 -033
1216 W BALBOA BOULEVARD
1416
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NOTICE OF PUBLIC HEARING
GROUP RESIDENTIAL CARE FACILITY
USE PERMIT AND REASONABLE ACCOMMODATION
NEWPORT COAST RECOVERY, LP
NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will conduct a public hearing on
October 27, 2009, at 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport
Beach, California. The City Council will consider an appeal of the Hearing Officer's decisions to deny the applications
filed by Newport Coast Recovery, LP for Use Permit No. 2008 -033, and Reasonable Accommodation No. 2009 -009 for
property located at 1216 West Balboa Boulevard. The appeals were filed by the applicant. Following is a brief
description of the applications:
• Use Permit No. 2008 -033: An application requesting approval of a use permit to allow a residential care facility to operate
a licensed adult alcohol and/or drug abuse recovery treatment facility for men only.
• Reasonable Accommodation No. 2009-009: A Reasonable Accommodation application for an existing residential care
facility to operate a licensed adult alcohol and/or drug abuse recovery and treatment facility in an R -2 District, where such
uses are not permitted. The applicant requests the following:
1. An exemption from the portions of NBMC Section 20.10.020 (Residential Districts: Land Use Regulations) that require
Residential Care Facilities, General to be established only in residential districts zoned Multi - Family Residential (MFR)
with a use permit, subject to the operational conditions recommended by City staff in the January 12, 2009 staff report
for Use Permit No. 2008 -33, including a maximum occupancy of 14 residents, which was denied by the Hearing Officer;
or, in the alternative
2. An exemption from the requirements specked in NBMC Section 20.91A.050 (Development and Operational Standards),
including a waiver of the occupancy restriction of two persons per bedroom plus one staff member, and to allow a total
occupancy of 18 residents;
3. An exemption from the parking requirements of one off- street parking space for each three resident beds, as specified in
NBMC Section 20.66.030 (Off - Street Parking and Loading Requirements) for Residential Care, General use
classifications, and to apply the off- street parking requirements applicable to Two - Family [Residential (R -2) use
classifications which requires two off- street parking spaces per dwelling unit,
4. Treat the use of the licensed residential care facility as a legal nonconforming use,
5. Apply the California Building Code provisions that were applicable at the time the residential care facility was established
as relates to life and fire safety matters; and
6. A waiver of the required finding specified in NBMC Section 20.91A.060 (D), relative to the compatibility of the use with
the character of the surrounding neighborhood, which requires a finding that the continued use will not contribute to the
changing of the residential character of the neighborhood, such as creating an overconcentration of residential care uses
in the vicinity, and waiving the impact analysis contained in the Factors A through C which the Hearing Officer must
consider in making or sustaining the finding with regard to the proximity of the use to schools, churches, playgrounds,
day care centers, and alcoholic beverage outlets, and the application of the American Planning Association standard of
permitting one or two such uses per block.
This activity has been determined to be categorically exempt under the requirements of the California Environmental
Quality Act (CEQA) under Class 1 (Existing Facilities). This class of projects has been determined not to have a
significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the
general rule that CEQA applies only to projects that have the potentiaf for causing a significant effect on the environment
(Section 15061(bx3) of the CEQA Guidelines). It can be seen with certainty that there is no possibility that this activity
will have a significant effect on the environment and it is not subject to CEQA.
Aft interested parties may appear and present testimony in regard to this application. If you challenge this project in court,
you may be limited to raising only those issues you or someone else raised at the public hearing (described in this notice)
or in written correspondence delivered to the City, at, or prior to, the public hearing. The staff report may be reviewed at
the City Clerk's Office, City of Newport Beach, 3300 Newport Boulevard, Newport Beach, California, 92663 or at the City
of Newport Beach website at www.city.newoort- beach.ca.us beginning on the Wednesday prior to the hearing. For more
information, call (949) 644 -3232 or (949) 644 -3002. To be added to a permanent notification list of these hearings, e-
mail jbrown(o)newporlbeachca qov and ask to receive these notices.
Project File No.: PA200B -104 Activity No.: UP2008 -033 a d RA2009 -009
Leilani 1. Brown
City Clerk
AFFIDAVIT OF POSTING
On 10/1(a 2009, I posted the Notice of Public Hearing regarding:
NEWPORT COAST RECOVER, LP
Date of Hearing: October 27, 2009
STEVEN G. POLIN, ESQ.
Attorney At Lam
L.eilani 1. Brown
City Clerk
City of Newport Beach
3300 Newport Blvd
Newport Beach, CA 92663
Dear Ms. Brown:
RECEIVED
2@9 OCT -I AR s 54
n CE Or
T}a OTY CLEW
CITY R'6Y�T EEO
September '
Re: Appeal of Newport Coast Recovery
110- 2009 - 22,23,24
3034 TeNNYWN ST. N.W.
WmtimGroN, D.C. 20015
RL (202) 331 -588
FAX (202) 537 -2986
SPOUN2@EARniuNK.Ner
Please find enclosed signed applications to appeal the decision of the hearing officer filed
on behalf of Newport Coast Recovery.
Please call me if you have any questions.
/'
CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA2008 -104 Application No. 2009 -009
Name of Appellant Newport Coast Recovery Phone 202- 331 -5848
Site Address
1216 West Balboa Blvd., Newport Beach, CA 92661
Date of Hearing Officers decision September 17
Name of Applicant Newport Coast Recovery
2009
for
(Description of application filed with Hearing Officer) Request for a reasonable accommodation
requesting a waiver from the provisions of NBMC 20.10.020 or in the alternative
a waiver from the provisions of NBMC 20.91A.050
Reasons for Appeal Denial with prejudice of the request for a reasonable accommodation
HO- 2009 -023
M � Steven x `Poiri ao.- �14
FOR OFFICE *E ONLY:
Rece i ed by Fee received
09/26/2009
Date
Date
C:\Documents and Settings\sobomy\Local SettingsUemporary Internet Files \Content.Outlook\277DB2P7Wppeal of
Hearing Officers Decision.docx
Revised 02 -04-09 j)b
Brown, Leilani
/,.
�/J A# S L
From:
Sent:
i0rtn CCSvwc.� f
Steven Polin [spolin2 @earthlink.net] n ii
Saturday, September 26, 2009 12:58 PM
To:
Brown, Leilani; pbobko; Wolcott, Cathy; Kiff, Dave
Cc:
Chris Brancart; ebrancart@brancart.com; james dee; mnewmanl960@hotmail.com; Dana
(CRT) Mulhauser; paul.e.smilh
Subject:
appeal of newport coast recovery
Attachments:
AppealofHearingOfficersDecision use permit with signature.pdf;
AppealofHearingOff icersDecision reasonable accommodation #1 with signature.pdf;
AppealofHearingOfficersDecision reasonable accommodation #2 with signature.pdf
Follow Up Flag:
Follow up
Flag Status:
Flagged
Please find attached signed copies of the notice of appeal from the denial of its use permit application and requests for a
reasonable accommodation. the original of documents are being mailed via first class mail. thank you.
Steven Polin
Steven Polin
Law Office of Steven G. Polin
3034 Tennyson Street, NW
Washington, DC 20015
202- 331 -5848
202- 537.2986(fax)
sgolin2a> arthlinkynel
This transmission is protected by the Electronic Communications Privacy Act.
18 U.S.C. Sections 2510 -2521 and intended to be delivered only to the
named addressees) and may contain information that is confidential,
proprietary, attorney work - product or attorney - client privileged. If this
information is received by anyone other than the named addressee(s), the
recipient should immediately notify the sender by E -MAIL and by telephone
202 -331 -5848 and obtain instructions as to the disposal of the transmitted
material. In no event shall this material be read, used, copied, reproduced,
stored or retained by anyone other than the named addressce(s), except
with the express consent of the sender or the named addressee(s). thank you.
CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA 2008 -104 2009 -009 #2
Application No.
Name of Appellant Newport Coast Recovery phone 202- 331 -5848
Site Address 1216 West Balboa Blvd., Newport Beach, CA 92661
Date of Hearing Officer's decision September 17
Name of Applicant Newport Coast Recovery
2009
for
(Description of application filed with Hearing officer) Request for a reasonable accommodation
requesting a waiver from the provisions of NBMC 20.10.020 or in the alternative
a waiver from the provisions of NBMC 20.91A.050
Reasons for Appeal Denial with prejudice of the request for a reasonable accommodation
HO- 2009 -024
Signature of Appellant
MV,
r-
Fee received
09/26/2009
Date
Date
C:0ocuments and SettingstsobomylLocel SettingslTemporary Intemet FiledContent .Outlook1277DB2P7%Appeal of
Hearing Officers Decision.docx
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CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER
Project No. PA 2008 -104 Application No 2008 -033
Name of Appellant Newport Coast Recovery phone 202- 331 -5848
Site Address 1216 West Balboa Blvd., Newport Beach, CA 92661
Date of Hearing officers decision September 17 2009
Name of Applicant Newport Coast Recovery for
(Description of application filed with Hearing officer) Application for a use permit to continue
providing residential treatment services to person in recovery from alcoholism and
substance abuse.
Reasons for Appeal Denial with prejudice of the application for a use permit,
HO- 2009 -022
A
Stevo'G. Alin 09/26/2009
Signature of Appellant Date
FOR OFFICEUSE ONLY:
R eived y Fee received Date
C:1Documents and SettirgMsobomySLocal SettingslTemporary Internet FileslContent Outlook1277DB2P7Wppeal of
Hearing Officers Deasion.docx
Revised 02 -04-09 bb