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ADMINISTRATIVE RECORD FOR PACIFIC SHORES REASONABLE ACCOMMODATION APPEAL PS -RA 00001 TAB 1 Pacific Shores' Supplemental Information for Reasonable Accommodation (September 24, 2008) PS -RA 00002 c1 v CITY OF NEWPORT BEACH <;,r,a Supplemental Information for Reasonable Accommodation Planning Department 3300 Newport Boulevard Newport Beach. California 92658 -8915 (949) 644 -3200 Application Number RECEIVED BY PLANNING [DEPARTMENT ;EP ' 16OU CITY OF NEWPORT BEACH PA2008 -181 for RA2008.001 492 8 -:92 :! (D2 N zE A'aE aN ] 5309 C St Paci `c St :ores Pro aifiuS. LLC To aid staff in determining that the necessary findings can be made in this particular case as set forth in Chapter 20.98 of the Municipal Code, please answer the following questions with regard to your request (Please attach on separate sheets, if necessary): Pacific Shores Properties, LLC Name of Applicant Pack Shores If provider of housing, name of facility, including legal name of corporation AVA- g 177 Riverside Avenue Newport Beach California 926/ (Mailing Address of Applicant) (City/State) (Zip) 949- 574 -2510 949- 722 -1135 (Telephone) (Fax number) Pacific Shores00Ryahoo com (E -Mail address) 492 '% Orange Avenue, 492 Orange Avenue. 3309 Clay Street (Subject Property Address) Assessor's Parcel Number (APN) 1. Is this application being submitted by a person with a disability, that person's representative, or a developer or provider of housing for individuals with a disability? Pacific Shores Properties, LLC is a provider of housing to persons in recovery from alcoholism and substance abuse. 2. Does the applicant, or individual(s) on whose behalf the application is being made, have physical or mental impairments that substantially limit one or more of such person's major life activities? If so, please state the impairment(s) and provide documentation of such impainnent(s) All residents of housing provided by Pacific Shores Properties, LLC . are persons in recovery from alcoholism and substance. Most residents of Pack Shores are referred Page 1 of 4 PS -RA 00003 PA2008.191 for RA200"01 pace' ;iores ?'O;1C'ies. UC after completing a residential substance program: Those individuals who are not referred directly from a residential treatment program have either completed a treatment program, or have been in recovery from alcoholism and substance abuse after completing a substance abuse treatment program or a detoxification program, or have been sober for a sustained period of time but are in need of safe and sober housing because they cannot live independently without fear of relapse. 3. From which - specific Zoning Code provisions, policies or practices are you seeking an exception or modification? Pacific Shores is requesting the City of Newport Beach treat its residents as a single housekeeping unit as defined in Section 20.03 of the Newport Beach Municipal Code. 4. Please explain why the specific exception or modification requested is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy the residence. Please provide documentation, if any. to support your explanation. As individuals in recovery from alcoholism and substance abuse present and prospective residents of Pacific Shores seek to live in a family type environment which would ,provide them with emotional and therapeutic support during recovery process. The residents are individuals who cannot live independently without the fear or threat of relapse into active alcoholism and substance abuse. The requested accommodation is necessary to achieve an opportunity for the disabled residents of Pacific Shores to live in a setting which is a self - paced recovery option and it gives them sufficient time for personal psychological growth while avoiding the use of alcohol and other substances. Absent the sobriety setting, the individual residents of Paeifie Shores would not be able to live in a supportive environment in a residential area, let alone a, single - family residential area. Residency in Pacific Shores provides a useful and often times essential public service by providing a safe and sober living environment, so that its residents can be reintegrated in the world and worldorce. A request for accommodation to definition. of "family" is necessary for the present and future residents of Pacific Shores "to enjoy the housing of his or her choice". The residents of Pacific. Shores are not "transient" by nature and function and interact with each other much in the same way as "the functions! equivalent of a traditional family." By living together as the "functional equivalent of a traditional family" and by living with other persons who are in recovery, the residents of Pacific Shores never have to face an alcoholics or addicts deadliest enemy: loneliness. 5. Please explain why the requested accommodation will affirmatively enhance the quality of life of the individual with a disability. Please provide documentation, if any, to support your explanation. As individuals in recovery from alcoholism and substance abuse present and prospective residents of Pacific Shores seek to live in a family type environment which would provide them with emotional and therapeutic support during recovery process. The residents are individuals who cannot live independently without the fear or threat of relapse into active alcoholism and substance abuse. The requested accommodation is necessary to achieve an opportunity for the disabled residents of Pacific Shores to live in a setting which is a self - paced recovery option and it gives them sufftcient time for personal psychological growth while avoiding the use of alcohol and other substances. Absent the sobriety setting, the Page 2 of 4 PS -RA 00004 PA200� -18 i RA-1008.001 LLC individual residents. of Pacific Shores would not be able to live in a supportive environment in ,a residential area, let alone a single - family residential area. Residency in Pacific Shores provides a useful and often times essential public service by providing a safe and sober living environment, so that its residents can be reintegrated in the world and workforce. A request for accommodation to definition of "family" is necessary for the present and future residents of Pacific Shores "to enjoy the housing of his or her choice ". The residents of Pacific Shores are not "transient" by nature and function and interact with each other much in the same way as "the functional equivalent of a traditional family." By living together as the "functional equivalent of a traditional family" and by living with other persons who are in recovery, the residents of Pacific Shores never have to face an alcoholics or addicts deadliest enemy: loneliness. 6. Please explain how the individual with a disability will be denied an equal opportunity to enjoy the housing, type of their choice absent the accommodation? Please provide documentation, if any, to support your explanation. As individuals in recovery from alcoholism and substance abuse present and prospective residents of Pacific Shores seek to live in a family type environment which would provide them with emotional and therapeutic support during recovery process. The residents are individuals who cannot live independently without the fear or threat of relapse into active alcoholism and substance abuse. The requested accommodation is necessary to achieve an opportunity for the disabled residents of Pacific Shores. to live in a setting which is a self- paced recovery option and it gives them sufficient time for personal psychological growth while avoiding the use of alcohol and other substances. Absent the sobriety setting, the individual residents of Pacific Shores would not be able to live in a supportive environment in a residential area, let alone a single- family residential area. Residency in Pacific Shores provides a useful and often times essential publie.'service by providing a safe and sober living environment, so that its residents can be reintegrated in the world and workforce. A request for accommodation to definition of "family" is necessary for the present and future residents of Pacific Shores "to enjoy the housing of his or her choice". The residents of Pacific Shores are not 'transient" by nature and function amid interact with each other much in the same way as "the functional equivalent of a traditional family." By living together as the "functional equivalent of a traditional fancily" and by living with other persons who are in recovery, the residents of Pacific Shores never have to face an alcoholics or addicts deadliest enemy: loneliness. 7. if the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation. is necessary to make your facility economically viable in light of the relevant market and market participants. Please provide documentation, if any, to support your explanation. Pacific Shores objects to this request An applicant for a request for a reasonable accommodation is not required to compare or matte an assessment of economic viability in light of the relevant market and market participants. Accordingly, Pacific Shores is not required to obtain economic data concerning the relevant market and market participants in order for this.request to be considered and granted. Page 3 or4 PS -RA 00005 rA206a -181 forPA2008 -001 z '3utU G_,, ._ c S up-•: .... LR C. 8. if the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation is necessary for your facility to provide individuals with a disability an equal opportunity to live in a residential setting taking into consideration the existing supply of facilities of a similar nature and operation in the community. Please provide documentation, if any, to support your explanation. Pacific Shores objects to this request. An applicant for a reasonable accommodation is not required to assess whether a request for a reasonable accommodation is necessary to provide persons with disabilities an equal opportunity to live in a residential setting by providing evidence regarding the existing supply of facilities of a similar nature and operation in the community. Without waiving this objection, see the Answer to Plumber 4 9. Please add any other information that may be helpful to the applicant to enable the City to determine whether the findings set forth in Chapter 20.98 can be made (Use additional pages if necessary.) Pack Shores has been the provider of housing for recovering alcoholics and substance abusers since 2000. Page 4 of 4 PS -RA 00006 a�'W i+Vyr 9 CITY OF NEWPORT BEACI{ Supplemental information 11 (]N for Reasonable Accommodation for Providers of Housing Planning Department Applicatior "' � r 3300 Newport Boulevard PAM8 181 for RA2008.001 Newport Beach, California 92658 -8915 (949) 644 -3200 If you are a provider of developer or provider of housing for individuals with a disability and are seeking a reasonable accommodation, please provide the following information with regard to your request If you have already submitted this information to the City in conjunction with a different application, you can submit copies of the Information previously provided. A. Your Firm's Current Uses. Do you or your firm (or any entity or person affiliated with you or your firm) currently_operate, manage, or awn other group residential uses in Newport Beata? ❑ Yes ►Z4 if yes, cite address(es) of facility(•ies) (attach more pages if necessary): EXAMPLE: 1234 Main Street Newport Beach Unlicensed *9 erLivino` 7 Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Pap t of PS -RA 00007 PA2008 -181 for RA2008.001 y:_.-%n 3309 C.:,; CT .om s Prop &rties. LLC B. Other Similar Uses. What uses. not operated by or affiliated with You or your fine, are of a similar type as your proposed use here in Newport Beach? Please cite address(es) of facility(ies) (attach more pages if necessary): EXAMPLE: 1234 Main Street Newport Beach Unlicensed "Sober Living' 7 Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed. Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed Page 2 0f 2 PS -RA 00008 TAB 2 Public Notice of March 25, 2009 Reasonable Accommodation Hearing (March 15, 2009) PS-RA 00009 I AFFIDAVIT M PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) I am a cities 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 above entitled matter. I am the principal clerk of The Orange County Register, a newspaper of general circulation, published in do city of Santa Ana, County of Orange, and which newspaper has been adjudged to be a newspaper of general circulation 6y the Superior Court of the Caamty of Orange, State of California, under the date of 111 &52, Case No. A- 21046, that the notice, of which the annwced is a uva printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: Mar 15, 2009 "I certify (or declare) under the penalty of perjury, wader the laws of the Slats of California that the foregoing is true and cunect": Execntad at Sams Ana, Orange County, California, on Data: Mar 15, 2009 Tk4)nnge County Register 625 N. Grand Ave. Saida Ana, CA 92701 (714) 7% -7000 ext. 2209 PROOF OR PUBLICATION IrAMMEY W242M PS -RA 00010 03/12/09 18[1 18:01 FAT 949 646 5008 DAILY PILOT -LGL DEPP PUBLIC NoT10E CITY OF NEWPOR'BEACH COY COWX 4 Cnwn6ew 4f am Csy at NMPDdBBSCh 9900 NW401swbIS" m mpat Beads NEARaiOOFFICERAGO40A ReMAW MoNYpi— Memh 25, 2004 41 1W p.m.' SUBJEOP. madfic Ehmme Fmpwb% U A200 AOI) 12OWW Awews. 49R'/sCnMPAWW&. wed x0cley BSest 10mMARr A Reaeonebb AOWMMOdra muca on for fm m wft adw bft hem cdod to an R.2 O(wdd whore sud( esss we r KMNB& Thsspplkwdbiegbas (1)fat9 in he Inabd as wm* Nmamm"M 9 LVA% iA two is da4ned b t w4wt Booth MwkA role 04514C) $NOW 20A9.0306 (2) MIM ua a hsaesd as bpd nonwnMm"'a" (9) e w um am n0 mn w dme6ed or tested wsww al Cma P*dOm s, w harbnn Is dMb 1 NOW Cheptor 20JA wab (4) that mo C nbme bt deg. maws the sally WA any d( odes appuc" to 1M won *a tadlt areoomwM ty *VW and two bnmy maMeo sr. aammae feria aeo defined In NweCBad I (Eaf60r9 Fac>ffMs} Tries cams man dabwmkad ed to have a a» b be seen w00 taro mtih oc1k* mh whormant and 2 is FILE COPY wool tot `,A PS -RA 00012 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that on March 25, 2009, at 2:00 p.m., a public hearing will be conducted in the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach, California. A Hearing Officer designated by the City of Newport Beads will consider the application of Pack Shores Properties, LLC for Reasonable Accommodation Permit No. 2008 -001 for properties located at 492 Orange Avenue, 492 Orange Avenue, and 3309 Clay Street, for the following: A Reasonable Accommodation application for three existing sober living homes located in an R -2 District where such uses are not permitted. The applicant is requesting: (1) that the uses be treated as Single Housekeeping Units, as that term is defined in Newport Beach Municipal Code (NBMC) Section 20.03.030, (2) that the uses be treated as legal nonconforming uses, (3) that the uses are no longer classified or treated as Residential Care Facilities, as that term is defined in NBMC Chapter 20.05, (4) that the City enforce zoning, building, fire safety and any other codes applicable to the facilities as if the facilities were occupied by single and two family residential uses, as those terms are defined in NBMC Section 20.10.010, (4) that the City enforce zoning, building, fire safety and any other codes applicable to the facilities as if the facilities were occupied by single and two family residential uses, as those terms are defined in NBMC Section 20.10.010, and (5) an exemption from those portions of NBMC Section 20.10.020 that require Residential Care Facilities, General and Small Unlicensed to be established only in residential districts zoned Mufti Family Residential (MFR) with a use permit. NOTICE IS HEREBY FURTHER GIVEN that 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 potential for causing a significant effect on the environment (Section 15061.13.3 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. All interested parties may appear and present testimony in regard to these applications. If you challenge these projects 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 Planning Department, City of Newport Beach, 3300 Newport Boulevard, Newport Beach, California, 92663 or at the City of Newport Beach website at www.cfty.newport- beach.ca r,�§ beginning on the Monday prior to the hearing. For more information, call (949) 644 -3200 or (949) 644 -3002. To be added to a permanent notification list of these hearings, e-mail dkiff@city.newport- beach.ca.us and ask to receive these notices. Project File No.: PA2008 -181 Activity No.: RA2008 -001 Dave Kiff, Assistant City Manager, City of Newport Beach PS-RA 00013 930 590 43 FRANK L & ENNA E DOYLE 3262 BROAD ST NEWPORT BEACH, CA 92663 93069046 ADAMS G TIT K FAMILY TRUST 24652 STEFFY DR LAGUNA NIGUEL, CA 92677 937 350 96 TRISH COURY 3251 BROAD ST NEWPORT BEACH, CA 92663 937 350 99 NEAL DOFELMIER 3247 BROAD ST NEWPORT BEACH, CA 92663 937 351 10 HANNA MARY L TRUST 511 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 13 MARK MORTON 517 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 18 RANDY E OLSHEN 741 MARTINGALE LN PARK CITY, UT 84098 937 351 21 LYNN C SOYLEMEZ 407 BOLSA AVE NEWPORT BEACH, CA 92663 937 351 24 KEETON FAMILY TRUST 300 RIALTO ST NEWPORT BEACH, CA 92663 K PACIFIC SHORES PROPERTIES LLC 177 RIVERSIDE AVE, SUITE 212 NEWPORT BEACH, CA 92683 5 (0 z- 93059044 LINDA M JOVANELLY 3245 CLAY ST NEWPORT BEACH, CA 92663 937 350 61 WILLIAM JR & BONNIE CRAWFORD 3233 CLAY ST NEWPORT BEACH, CA 92663 937 350 97 MATTHEW & DINA SAENZ 3253 BROAD ST NEWPORT BEACH, CA 92663 937 351 08 RYAN TOLLNER 507 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 11 EVA C MAUCK 513 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 14 DONNA MURATALLA 519 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 19 CAMACHO SAY FAMILY TRUST 3305 CLAY ST NEWPORT BEACH, CA 92663 937 351 22 RAIDY FAMILY TRUST PO BOX 155 PAUMA VALLEY, CA 92061 937 351 29 DEBRA LEITNER 3308 CLAY ST NEWPORT BEACH, CA 92663 FILE COPY 930 59045 BROWNING 3256 BROAD ST NEWPORT BEACH, CA 92663 93736062 CLAIRE STEELE 3231 CLAY ST NEWPORT BEACH, CA 92663 937 350 98 JILL C DONAHUE 3245 BROAD ST NEWPORT BEACH, CA 92663 93735109 MARK B HIROMOTO 509 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 12 JIM MADDEN 515 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 17 LISA MARIE FABIAN 3301 CLAY ST NEWPORT BEACH, CA 92663 937 351 20 OBBAGE TRUST 3307 CLAY ST NEWPORT BEACH, CA 92663 937 351 23 RONALD & PAMELA LOPEZ 411 BOLSA AVE NEWPORT BEACH, CA 92663 937 351 30 MARCO BUFFETT! 3310 CLAY ST #B NEWPORT BEACH, CA 92663 PA2008 -181 for RA2008 -001 492 & 492 % Orange Ave and 3309 Clay i Pacific Shores Properties, LLC PS -RA 00014 PS -RA 00015 i 1 i I 425 271 01 425 271 02 425 281 17 HUNG ONG HUNG ON CLEWORTH BRUCE K TRUST 307 PLACENTIA AVE #205 307 P ENTM AVE #205 3250 BROAD ST NEWPORT BEACH, CA 92663 ORT BEACH, CA 92663 NEWPORT BEACH, CA 92683 0 425 282 01 42628202 425 28212 ALICE CONNER ALICE C LAURA CAPPELLETTI 611 CLIFF DR 611 FF DR 486 N NEWPORT BLVD NEWPORT BEACH, CA 92663 PORT BEACH, CA 92663 NEWPORT BEACH, CA 92663, 425 282 13 425 283 33 42629101 BGR VISIONS LLC CARLTON JOHN J TRUST EVAN B THOMAS 2064 PHALAROPE CT 1362 GALAXY DR 522 OLD NEWPORT BLVD COSTA MESA, CA 92626 NEWPORT BEACH, CA 92660 NEWPORT BEACH, CA 92663 425 291 02 425 291 03 42629110 DAMIR AUJAGHIAN 508 ONB LLC OTOLITH LLC 318.5 JASMINE AVE 415 30TH ST #8 7300 W OCEANFRONT CORONA DEL MAR, CA 92625 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 292 01 42629202 425 292 03 RICHARD H ALLRED KIRK C MODEL JOHN LYNN HART 3331 E 15TH ST 508 ORANGE AVE 49 BALBOA CVS NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 292 04 425 292 05 425 292 07 VOIGNE YVONNE DES 3312 CLAY STREET LLC WILLIAM J WINTER 504 ORANGE AVE 3187 AIRWAY AVE #H 1905 FULLERTON AVE #W NEWPORT BEACH, CA 92663 COSTA MESA, CA 92626 COSTA MESA, CA 92627 425 292 08 425 292 09 425 292 10 DIANA D SPRINGER WILLIAM BELDEN GUIDERO NEIL J POWERS 3300 CLAY ST 342 62ND ST 3408 MARCUS AVE NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 292 11 425 29212 425 29302 NEIL POWERS BREWER SHERYL L REV TRUST DANIEL & KIMBERLY MCDONOUGH 3408 MARCUS AVE 214 FERNLEAF AVE 518 BOLSA AVE NEWPORT BEACH, CA 92663 CORONA DEL MAR, CA 92625 NEWPORT BEACH, CA 92663 425 293 03 425 29304 425 293 05 MCELFRESH FAMILY TRUST SUSAN; IRANI CHRISTOPHER E & AIDA O HOBSON 514 BOLSA AVE .51 CORONADO POINTE 3242 E COAST HWY NEWPORT BEACH, CA 92663 LAGUNA NIGUEL, CA 92677 CORONA DEL MAR, CA 92625 425 293 06 425 293 07 425 293 08 TERRY A TRAMBLIE CAROLAN FAMILY TRUST BAILEY FAMILY TRUST 3244 CLAY ST 3238 CLAY ST 22322 HARWICH LN NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 HUNTINGTON BEACH, CA 92646 PS -RA 00015 i 1 i I 937 351 08 RESIDENT 507 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 11 RESIDENT 513 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 14 RESIDENT 519 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 19 RESIDENT 3305 CLAY ST NEWPORT BEACH, CA 92663 937 351 22 RESIDENT 409 BOLSA AVE NEWPORT BEACH, CA 92663 937 351 29 RESIDENT' 3308 CLAY ST NEWPORT BEACH, CA 92663 NO AP # RESIDENT 495 ORANGE AVE NEWPORT BEACH, CA 92663 NEWPORT HEIGHTS IMPROVEMENT ASSOCIATION 2916 CLAY STREET NEWPORT BEACH, CA 92663 00 Z 937 351 09 RESIDENT 509 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 12 RESIDENT 515 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 17 RESIDENT 3301 CLAY ST NEWPORT BEACH, CA 92663 937 351 20 RESIDENT 3307 CLAY ST NEWPORT BEACH, CA 92663 93736123 RESIDENT 411 BOLSA AVE NEWPORT BEACH, CA 92663 937 351 30 RESIDENT 3310 CLAY ST NEWPORT BEACH, CA 92663 FILE COPY 937 351 10 RESIDENT 511 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 13 RESIDENT 517 ORANGE AVE NEWPORT BEACH, CA 92663 937 351 18 RESIDENT 3303 CLAY ST NEWPORT BEACH, CA 92663 937 351 21 RESIDENT 407 BOLSA AVE NEWPORT BEACH, CA 92663 937 351 24 RESIDENT 413 BOLSA AVE NEWPORT BEACH, CA 92663 NO AP# RESIDENT - 497 ORANGE AVE NEWPORT BEACH, CA 92663 PA2008 -181 for RA2008 -001 492 & 492 % Orange Ave and 3309 Clay St Pacific Shores Properties, LLC PS -RA 00016 42529204 RESIDENT 504 ORANGE AVE NEWPORT BEACH, CA 92663 425 292 07 RESIDENT 3304 CLAY ST A NEWPORT BEACH, CA 92663 425 292 09 RESIDENT 513 BOLSA AVE NEWPORT BEACH, CA 92663 425 292 12 RESIDENT 3301 15TH ST NEWPORT BEACH, CA 92663 425 293 02 RESIDENT 516 BOLSA AVE NEWPORT BEACH, CA 92663 425 293 05 RESIDENT 510 BOLSA AVE NEWPORT BEACH, CA 92663 425 293 07 RESIDENT 3238 CLAY ST NEWPORT BEACH, CA 92663 930 59044 RESIDENT 3245 CLAY ST NEWPORT BEACH, CA 92663 937 350 61 RESIDENT 3233 CLAY ST NEWPORT BEACH, CA 92663 937 350 97 RESIDENT 3253 BROAD ST NEWPORT BEACH, CA 92663 425 292 05 RESIDENT 3314 CLAY ST NEWPORT BEACH, CA 92663 42629207 RESIDENT 3304 CLAY ST B NEWPORT BEACH, CA 92663 425 292 10 RESIDENT 517 BOLSA AVE NEWPORT BEACH, CA 92663 425 29212 RESIDENT 3311 15TH ST NEWPORT BEACH, CA 92663 425 293 03 RESIDENT 514 BOLSA AVE NEWPORT. BEACH, CA 92663 425 29306 RESIDENT 3244 CLAY ST NEWPORT BEACH, CA 92663 425 293 08 RESIDENT 3232 CLAY ST NEWPORT BEACH, CA 92663 930 59045 RESIDENT 3256 BROAD ST NEWPORT BEACH, CA 92663 937 350 62 RESIDENT 3231 CLAY ST NEWPORT BEACH, CA 92663 937 350 98 RESIDENT 3245 BROAD ST NEWPORT BEACH, CA 92663 425 292 05 RESIDENT 3312 CLAY ST NEWPORT BEACH, CA 92663 425 29208 RESIDENT 3300 CLAY ST NEWPORT BEACH, CA 92663 425 292 11 RESIDENT 521 BOLSA AVE NEWPORT BEACH, CA 92663 425 29212 RESIDENT 330515TH ST NEWPORT BEACH, CA 92663 425 293 04 RESIDENT 512 BOLSA AVE NEWPORT BEACH, CA 92663 42629306 RESIDENT 3244 CLAY ST 1/2 NEWPORT BEACH, CA 92663 930 590 43 RESIDENT 3262 BROAD ST NEWPORT BEACH, CA 92663 930 59046 RESIDENT 3239 CLAY ST NEWPORT BEACH, CA 92663 937 350 96 RESIDENT 3251 BROAD ST NEWPORT BEACH, CA 92663 937 35099 RESIDENT 3247 BROAD ST NEWPORT BEACH, CA 92663 PS -RA 00017 425 271 01 425 271 01 425 271 01 RESIDENT RESIDENT RESIDENT 495 OLD NEWPORT BLVD 493 OLD NEWPORT BLVD 495 OLD NEWPORT BLVD 112 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92883 NEWPORT BEACH, CA 92663 425 271 01 425 271 02 42628117 RESIDENT RESIDENT RESIDENT 485 OLD NEWPORT BLVD 481 OLD NEWPORT BLVD 3250 BROAD ST NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 282 01 425 282 01 425 282 02 RESIDENT RESIDENT RESIDENT 492 ORANGE AVE 494 ORANGE AVE 3309 CLAY ST NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 282 12 42628213 425 282 16 RESIDENT RESIDENT RESIDENT 486 OLD NEWPORT BLVD 488 OLD NEWPORT BLVD 496 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92863 425 283 33 425 291 01 425 291 02 RESIDENT RESIDENT RESIDENT 480 OLD NEWPORT BLVD 522 OLD NEWPORT BLVD 510 OLD NEWPORT BLVD B NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 291 02 425 291 02 425 291 02 RESIDENT RESIDENT RESIDENT 510 OLD NEWPORT BLVD C 514 OLD NEWPORT BLVD 512 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92683 NEWPORT BEACH, CA 92663 42629102 42529102 42529102 RESIDENT RESIDENT RESIDENT 510 OLD NEWPORT BLVD E 510 OLD NEWPORT BLVD 510 OLD NEWPORT BLVD A NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 291 02 425 291 03 425 291 10 RESIDENT RESIDENT RESIDENT 510 OLD NEWPORT BLVD D 508 OLD NEWPORT BLVD 500 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 292 01 425 292 01 425 292 02 RESIDENT RESIDENT RESIDENT 3331 15TH ST 3321 15TH ST 508 ORANGE AVE A NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 425 292 02 425 292 03 425 292 03 RESIDENT RESIDENT RESIDENT 508 ORANGE AVE B 506 ORANGE AVE B 506 ORANGE AVE A NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 PS -RA 00018 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, excluding roads and waterways for non - residentially zoned properties, of the subject parcels located at 492 Orange Avenue. 494 (292%) Orange Avenue. and 3309 Clay Street 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. L . 3 r2 oy Signature of repar ' Date Prepared k\ cnb. Iclldata %UsersIPLMShered%PNsiPAs - 20081PA2008- 1811RA2008.001 Radius Map - Ustings - Mailing LabelsUW00"01 Preparer's Statement.docx PS -RA 00019 r 492 Orange Avenue 494 (492 %) Orange Avenue PA2008481 for RA2008 -001 - 300' Radius -- Owner Listing 3309 Clay Street Res Tag Number Owmr Name Address street City atm ZIP H1A 030 42527101 HUNG ONG 307 PLACENTIA AVE 0205 NEWPORT BEACH CA 92803 46 HIA 218 425 271 02 HUNG ONG 301 PLACENTIA AVE 0205 NEWPORT BEACH CA 92653 47 HIA 180 425 281 17 CLEWORTH BRUCE K TRUST 3250 BROAD ST NEWPORT BEACH CA 92863 43 H1A 128 425 282 01 ALICE CONNER 611 CLIFF DR NEWPORT BEACH CA 92663 26 H1A126 425 282 02 ALICE CONNER 611 CLIFF DR NEWPORT BEACH CA 92863 11 H1A 238 425 28212 LAURA CAPPELLETTI 488 N NEWPORT BLVD NEWPORT BEACH CA 92883 10 H1A 236 425 282 13 BGR VISIONS LLC 2084 PHALAROPE CT COSTA MESA CA 92626 42 HlkZ12 426 283 33 CARLTON JOHN J TRUST 1362 GALAXY OR NEWPORT BEACH CA 92660 31 H1A032 425 29101 EVAN B THOMAS 522 OLD NEWPORT BLVD NEWPORT BEACH CA 92683 22 H1A034 425 291 02 DAMIRAUJAGHIAN 318112 JASMINE AVE CORONA DEL MAR CA 92625 21 H1A036 425 29103.608 ONO LLC 415 30TH ST 08 NEWPORT BEACH CA 92863 121HIA,038 425 29110 OTOLITH LLC 7300W OCEANFRONT NEWPORT BEACH CA 92883 9NIA04842529201 RICHARD H ALLRED 3331E 15TH ST NEWPORT BEACH CA 92683 51HIA-050 425 292 02 KIRK C STRDDEL - 508 ORANGE AVE NEWPORT BEACH CA 92883 5411,11k052 052 425 292 03 JOHN LYNN HART 40 BALBOA CVS NEWPORT BEACH CA 92@83 2 H1A054 425 292 04 VOIGNE YVONNE DES 5G4 ORANGE AVE NEWPORT BEACH CA 9208 FHA 056 425 292 05 3312 CLAY STREET LLC 3187 AIRWAY AVE 0H COSTA MESA CA 92828 13 HHA_060 425 292 07 WIWAM J WINTER 1905 FULLERTON AVE 0W COSTA MESA CA 192627 55 H1A 062 425 292 08 0" D SPRINGER 3300 CLAY ST NEWPORT BEACH CA 92883 56 H1A 064 426 292 09 WILLIAM BELDEN GUIDERO 342 62ND ST NEWPORT BEACH CA 92683 45 HIA 068 425 292 10 NEIL J POWERS 3408 MARCUS AVE NEWPORT BEACH CA 92863 14 H1A 088 425 292 11 NEIL POWERS 3408 MARCUS AVE NEWPORT BEACH CA 92653 28 HIA 070 425 292 12 BREWER SHERYL L REV TRUST 214 FERNLEAF AVE CORONA DEL MAR CA .92825 H1A234 425 203 02 DANIEL & KIMBERLY MCOONOUGH 518 BOLSA AVE NEWPORT BEACH CA 92063 41 HIA 076 426 293 03 MCELFRESH FAMILY TRUST 514 SOLSA AVE NEWPORT BEACH CA 92663 40 HtA 078 425 293 04 SUSAN; IRAN 51 CORONADO POINTE LAGUNA NIGUEL CA 80877 44 H1A 080 425 293 05 CHRISTOPHER E & AIDA O H10BSON 3242 E COAST ENVY CORONA DEL MAR CA 92825 5 H1A082 426 293 06 TERRYA TRAMBLIE 3244 CLAY ST NEWPORT BEACH CA 92663 25 H1A084 425 293 07 CAROLAN FAMILY TRUST 3238 CLAY ST NEWPORT BEACH CA 92683 H1A 088 428 283 OB BAILEY FAMILY TRUST 22322 HARWICH UN HUNTINGTON BEACH CA 92040 18 HIA 178 930 590 43 FRANK L & ENNA E DOYLE 3252 BROAD ST NEWPORT BEACH CA 92863 17 H1A_178 93059044 LINDA M JOVANELLY 3Z45 CLAY ST NEWPORT BEACH CA 92883 4 HIA-232 930 590 45 BROWNING 3258 BROAD ST NEWPORT BEACH CA 92553 3 H1A 232 930 b91140 ADAMS G TIT K FAMILY TRUST 24852 STEFFY DR LAGUNA NIGUEL CA 9287 49 HIA 182 937 350 61 WILLIAM JR & BONNIE CRAWFORD 3233 CLAY ST NEWPORT BEACH CA 9288 48 H1A 182 937 350 62 CLAIRE STEELE 3231 CLAY ST NEWPORT BEACH CA 92883 16 HIA_130 937 350 98 TRISH COURY 3251 BROAD ST NEWPORT BEACH CA 92663 15 H1A_130 937 350 97 MATTHEW & DINA SAENZ 3253 BROAD ST NEWPORT BEACH CA 92863 HIA_132 937 350 98 JILL C DONAHUE 3245 BROAD ST NEWPORT BEACH CA 92669 1 HIA 132 937 35098 NEAL DOFELMiER 324 BROAD ST NEWPORT BEACH CA 92683 33 H1A044 937 36108 RYAN TOLLNER 507 ORANGE AVE NEWPORT BEACH CA O28B3 H1A 941 937 351 09 MARK B HIROMOTO ORANGE AVE NEWPORT BEACH CA 82663 32 HIA 044 937 351 10 HANNA MARY L TRUST 511 ORANGE AVE NEWPORT BEACH CA 92 37 HIA 044 937 351 11 EVA C MAUCK 513 ORANGE AVE NEWPORT BEACH CA 9266 35 HIA044 937 351 12 JIM MADDEN 515 ORANGE AVE NEWPORT BEACH CA RA2008 -001 Owner Listing Page I of 2 03/12/2009 PS -RA 00020 492 Orange Avenue 494 (492'/2 ) Orange Avenue PA2008 -181 for RA2008 -001 — 300' Radius — Owner Listing 3309 Clay Street Roe Tag N AP Owner Hotta Addtem Stmt City Stets ZIP 38 HIA 044 93735113 MARK MORTON 517 ORANGE AVE NEWPORTBEACH CA 92883 36 HIA 044 937 351 14 DONNA MURATALLA 519 ORANGE AVE NEWPORT SEACH CA 92663 24 HIA 122 937 351 17 LISA MARIE FABIAN 3301 CLAY ST NEWPORT BEACH CA 92683 23 H1A 122 937 351 18 RANDY E OLSHEN 741 MARTINGALE LN PARK CITY UT 84098 53 H1A 124 937 35119 CAMACHO SAY FAM6_Y TRUST 3306 CLAY ST NEWPORT BEACH CA 9269 52 H1A_124 937 35120 OBBAGE TRUST 3307 CLAY ST NEWPORT BEACH CA 9 30 H1A120 937 35121 LYNN C SOYLEMEZ 407 BOLSA AVE NEWPORTSEACH CA 92883 29 141A 120 937 35122 R41DY FAMILY TRUST PO BOX 155 PAUMA VALLEY CA 92091 19 H1A118 937 35123 RONALD 8 PAMELA LOPEZ 411 BOLSA AVE NEWPORT BEACH CA 92863 20 H1Ai 18 937 35124 KEETON FAMILY TRUST 300 RIALTO ST NEWPORT BEACH CA 92963 HiA058 937 351 29 DEBRA LEITNER 3308 CLAY ST NEWPORT BEACH CA 92983 H1A D58 937 351 30 MARCO BUFFEtTI 3310 CLAY ST iB INEWPORT BEACH CA RA2008 -001 Owner Listing Page 2 of 2 43/12/2009 PS -RA 00021 492 Orange Avenue 494 (492%) Orange Avenue PA2008 -181 300' Radius Resident Listing 3309 Clay Street Rea Tag AP Number PASIdem AAdrns Street qty State 21p HtA 030 425 271 01 RESIDENT 495 OLD NEWPORT BLVD NEWPORT BEACH CA 92663 67 HIA_030 425271 01 RESIDENT 493 OLD NEWPORT BLVD NEWPORT BEACH CA 92WB 68 Hl 030 425271 01 RESIDENT 495 OLD NEWPORT BLVD N2 NEWPORT BEACH CA 69 MA-030 42527101 RESIDENT 405 OLD NEWPORT BLVD NEWPORT BEACH CA wm 62 H1A_218 42527102 RESIDENT 481 OLD NEWPORT BLVD NEWPORT BEACH CA 63 H1A_180 42528117 RESIDENT 3250BROADST NEWPORT BEACH CA 56 H11L128 425 282 01 RESIDENT 492 ORANGE AVE NEWPORT BEACH CA 59 H1A_128 42628201 RESIDENT 494 ORANGE AVE NEWPORT BEACH CA 92663 39 HIA 126 425 282 02 RESIDENT 3309 CLAY ST NEWPORT BEACH CA 92863 15 H1A238 42528212 RESIDENT 488 OLD NEWPORT BLVD NEWPORT BEACH CA 92883 14 H1A_236 42528213 RESIDENT 498 OLD NEWPORT BLVD NEWPORT BEACH CA 92883 T HIkI I4 142528216 RESIDENT 496 OLD NEWPORT BLVD NEWPORT BEACH CA 92863 57 HIA212 42528333 RESIDENT 480OLD NEWPORT BLVD NEWPORTBEACH CA 928 46 H1A_032 425 291 01 RESIDENT 572 OLD NEWPORT BLVD NEWPORT BEACH CA 9 27 H1A_034 425 291 02 RESIDENT 510 OLD NEWPORT BLVD B NEWPORT BEACH CA 28 HVL034 42529102 RESIDENT 510OLD NEWPORT BLVD C NEWPORT BEACH - CA 92 29 H1A_034 42529102 RESIDENT 514OLDNEWPORT BLVD NEWPORT BEACH CA 30 H1A_034 42529102 RESIDENT 512OL.DNEWPORTBLVO NEWPORT BEACH CA 92563 31H1A_034 42529102 RESIDENT 510 OLD NEWPORT BLVD E NEWPORTSEACH CA 92863 32 HtA_034- 42629102 RESIDENT 510 OLD NEWPORT BLVD NEWPORT BEACH CA 92663 H1A_034 425 201 02 RESIDENT 510 OLD NEWPORT BLVD A NEWPORT BEACH CA 92653 34 H1A_034 42529102 RESIDENT 510 OLD NEWPORT BLVD D NEWPORT BEACH CA -92653 26 H1A 036 425291 03 RESIDENT 506 OLD NEWPORT BLVD NEWPORT BEACH CA 92683 16 MIA _038 42529110 RESIDENT 500 OLD NEWPORT BLVD NEWPORT BEACH - CA 92683 12 H1A_048 423292 01 IRESIDENT 3331 15TH ST NEWPORT BEACH CA 92563 13 HIA 048 425292 01 IREsiDENr 3321 15TH ST NEWPORT BEACH CA 92683 70 H1A 050 42529202 RESIDENT 508 ORANGE AVEA NEWPORT BEACH CA 71 H1A 050 425 292 02 RESIDENT 508 ORANGE AVE B NEWPORT BEACH CA 92663 75 HIA_052 42529203 RESIDENT 508 ORANGE AVE8 NEWPORT BEACH CA 92063 76 H1A_052 42529203 RESIDENT 508 ORANGE AVEA NEWPORT BEACH CA 92683 40 H1A054 42529204. RESIDENT 504 ORANGE AVE NEWPORT BEACH CA 8 H1A 056 142529206 RESIDENT 3314 CLAY ST NEWPORT BEACH CA 9 H1A 058 425 292 05 RESIDENT 3312 CLAY ST NEWPORT BEACH CA 9206 17 H1A060 42529207 RESIDENT 3304 CLAY ST NEWPORT BEACH CA 9288 18 H1A_080 425 292 07 RESIDENT 3304 CLAY ST B NEWPORT BEACH CA 77 MA_062 42529208 RESIDENT 3300 CLAY ST NEWPORT BEACH CA Sm 78 HIA 064 42529209 RESIDENT 513 BOLSA AVE NEWPORT BEACH CA 61 HiA 088 42329210 RESIDENT 617 BOLSA AVE - NEWPORT BEACH CA 19 HiA_068 425 292 11 RESIDENT. 521 BOLSA AVE NEWPORT BEACH CA 1 9251 41 H1A 070 42529212 RESIDENT 330115TH ST NEWPORT BEACH CA 92563 42 H1A_070 42529212 RESIDENT 331115TH ST NEWPORT BEACH CA 92883 43 H1A_070 426 292 12 RESIDENT 3305 16TH ST NEWPORT BEACH CA 82663 79 H1A234 42529302 RESIDENT 518BOLSAAVE NEWPORT BEACH CA 92663 56 H1A078 42529303 RESIDENT 514BOLSAAVE NEWPORTBEACH CA 92089 83 H1A 076 142629304 RESIDENT 512 SOLSAAVE NEWPORTBEACH CA 92863 RA2008 -001 Resident Listing Page 1 of 2 03/12/2009 PS -RA 00022 PA2008 -181 30W Radius Resident Listing -L? 492 Orange Avenue 494 (492% ) Orange Avenue 3309 Clay Street Kee Tap AP Nmber Resident Address SVQO - Cigi Sws 21q H1A_M 42529305 RESIDENT 510 SOLSA AVE NEWPORT BEACH G 92M 5 H1A_082 42529306 RESIDENT 3244 CLAY ST NEWPORTBEACH G 92883 6 H1A_082 425 29308 RESIDENT 3244 CLAY ST 112 NEWPORT BEACH G 92883 37 141A_084 42529307 RESIDENT 3238 CLAY ST NEWPORT BEACH CA 92883 54 H1A066 425 293 08 RESIDENT 3232 CLAY ST NEWPORT BEACH G 92663 23 HIA_176 93659043 RESIDENT 3262 BROAD ST NEWPORT BEACH G 9266 22 HIA_175 93059044 RESIDENT 3245 CLAY ST NEWPORT BEACH G 92888 4 HIA232 93059045 RESIDENT 3256 BROAD ST NEWPORT BEACH G 92883 3 H1AT_232 93059046 RESIDENT 3239 CLAY ST NEWPORT BEACH G 92883 65 H1A182 93735681 RESIDENT 3233 CLAY ST NEWPORT BEACH G 92883 64 HIA_182 93735062 RESIDENT 3231 CLAY ST NEWPORT BEACH G 92863 21 H1A 130 193735006 RESIDENT 3251 BROADS? NEWPORT BEACH G 92683 20MA_130 193735097 RESIDENT 3253 BROAD Sr NEWPORT BEACH G 92663 1 H1A132 93735098 RESIDENT 3245 BROAD ST NEWPORT BEACH CA 92883 2 HIA_132 23736099 RESIDENT 3247 BROAD ST NEWPORT BEACH G 92683 51 H1A_044 93735108 RESIDENT 507 ORANGE AVE NEWPORTBEACH G 82683 48 HIA_044 93735109 RESIDENT 5M ORANGE AVE NEWPORTBEACH G 49 H1A_044 937 351 10 IRESMENT - 511 ORANGE AVE NEWPORT BEACH G 92663 53 H1A_044 93735111 RESIDENT 6130RANGEAVE NEWPORT BEACH G 92683 52H1AD44 93735112 RESIDENT 515 ORANGE AVE NEWPORT BEACH CA 92683 50 H1A_044 937 351 13 RESIDENT 517 ORANGE AVE NEWPORT BEACH G 92883 47 H1A044 93735114 RESIDENT 619 ORANGE AVE NEWPORTSEACH G 35 H1A122 93735117 RESIDENT 3301 CLAY ST NEWPORTBEACH G 36 H1A 122 937 351 18 RESIDENT 3303 CLAY ST NEWPORT BEACH G 73 H1A124 93735119 RESIDENT 3305 CLAY ST NEWPORT BEACH G Ummm 74 HIA 124 93735120 RESIDENT 330qCLAY ST NEWPORTBEACH G 46H1A120 93735121 RESIDENT 40T SOLSA AVE NEWPORT BEACH G. H1&.120 93735122 RESIDENT 409 BOLSA AVE NEWPORT BEACH G 24 H1A118 93735123 RESIDENT 411 SOLSA AVE NEWPORT BEACH CA 92663 25 H1A 118 937 351 24 RESIDENT 413 BOLSA AVE I NEWPORT BEACH G 92663 11 H1A058 937 351 29 RESIDENT 3308 CLAY ST - NEWPORT BEACH G 92883 10 H1A058 937351 30 RESIDENT 3310 CLAY ST NEWPORT BEACH G 92863 38 H1A 042 NOAPO RESIDENT I 49710MMEAVE NEWPORT BEACH G 721 H1A640 INOAPS IRESIDENT I 4SqORANGEAVE NEWPORT BEACH ICA RA2008 -001 Resident Listing Page L of 2 03/1212009 PS -RA 00023 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, excluding roads and waterways for non - residentially zoned properties, of the subject parcels located at 492 Orange Avenue. 494 (292'x4) Orange Avenue. and 3309 Clay Street 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. Signatur of Pr aver Date Prepared \\ cnb. Icl \datalUsers\PLNIShared\PNs\PAs - 2008 \PA2008- 181\RA2008 -001 Radius Map - Listings - Mailing Labels \RA2008 -001 Preparers Statementdom PS -RA 00024 PS-RA 00025 TAB 3 Correspondence PS-RA 00026 March 17, 2009 CITY OF NEWPORT BEACH PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92858 (949) 644.32W FAX (948) 8443229 Pacific Shores Properties, LLC 177 Riverside Avenue, #212 Newport Beach, CA 92883 To whom. it may concern: Subject REQUEST FOR ADDITIONAL INFORMATION Reasonable Accommodation No. 2008 -001 (PA 2008 -181) Properties located at 492 Orange Avenue, 492 % Orange Avenue and 3309 Clay Street This letter is regarding your Reasonable Accommodation application submittal for properties located at the above referenced addresses. Upon further review of the submitted application. and subsequent correspondence, we have determined that additional information is necessary in order to complete the analysis of this request per the provisions of Chapter 20.98 of the Newport Beach Municipal Code. Please provide the following clarifications and/or additional information: 1. Property Owner Affidavit Please provide written authorization from the legal owner of record authorizing filing of this application. 2. Affirmation of Resident(s) DisabUity: Please provide a written statement, signed by the facility administrator or other credible individual, certifying under penalty of perjury that all residents of this facility meet the definition of disabled, as that term Is defined by the federal and state housing laws. 3. Description of Use In order to assist staff in understanding the accommodation request, please provide a brief written description of the facifity operation in each building, including: a. The maximum occupancy requested in each building; b. The number of bedrooms and beds within each building; c. The population in each building (male or female); d. Is on -site staffing provided or does a resident manager reside in each building? If so, how many staff members are on -site at any one time? e. The month and year the use was established in each building. f. How many parking spaces are provided on -site for each building? g. Are resident clients allowed to use their personal vehicles at any time while living at the facility, and if so, where the vehicles are parked? PS -RA 00027 Request for Additional Information Use Permit No. 2008 -214 Page 2 h. Does the fadhty provide transportation services for the clients? If so, where is the transportation van parked? To what location is transportation provided and hotter frequently is the transportation provided? L Are the house rules? if so, please provide a copy. j. What are the curfew and quiet hours? k. Who determines the population of each building? 1. What is the typical duration of stay of the clients residing in the facirdies? m. is the interaction between the residents of one building with another? Do residents of one building have access to the other buikAngs and/or building grounds? 4. Facility Administrator. Please provide the name and contact information for the facility administrator or manager. If the facility provides 2417 on -site staffing, please provide contact information for that staff person(s). 5. Siht-Plan/Floor Plan: Please provide a site plan showing the location of the buildings on the lots, the location and number of on -site parking spaces. Please also provide a floor plan identifying t he number bedrooms and residents per bedroom. Should you have any questions regarding the requested clarifications or additional information, please do not hesitate to contact me at (949) 644 -3236. Cc: Alice Connor, property owner PS -RA 00028 r-. Brown, Janet From: Chris Brancart )cbrancart@brancartcorn) Sent: Thursday, March 19, 2009 10:49 AM To: 'Pierce, T. Peter" <; yrolcott, Cry; Brown, Janet Cc: "Manderson, MarIC <; "Polin, Steve" < Subject: Newport - Pacific Shores RA information request Attachments: Pacific Shore's response to request for additional information (served).pdf Counsel, City Staff, Please find attached to this email information requested by the City in its March 17 letter. As indicated on the document, certain information has not been provided as unnecessary or duplicative based on my call with Mr. Plerece on March 18. Please contact Steve Polin, email above, if you have any questions regarding this email. Christopher Brancart Brancart & Brancart (650) 879 -0141 (voice) (650) 879 -1103 (fax) CONFIDENTIALITY NOTICE: This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, please call me. Thank you. PS -RA 00029 % ) \ § � k § J # \ � 2 � : as k� |I ! _ | ti r 2! • ! ; k ! as f ! ■, f | ■ AS kf \ ■2 .a \{ �k k � ,�, §! ■ - ■ ! -� ! .�a | |)� ==4; |ac te ja E ■a lift K §E2�! PS.RA &20 §§ � to 22Ln ■ cn k �)kr /a /§E Gj m ` e , • ® aj f V �( § ■ cy ±§ � =aa ui \6z t LO '0 )k ■k�.29.2 � ra2}2K�oo to . | • . ca� a �: ■� � � 2 � o ( as k� |I ! _ | ti r 2! • ! ; k ! as f ! ■, f | ■ AS kf \ ■2 .a \{ �k k � ,�, §! ■ - ■ ! -� ! .�a | |)� ==4; |ac te ja E ■a lift K §E2�! PS.RA &20 N N PS-RA 00031 Y W SS eO P m ` d m a v n r�O1 3 c v c .1 O' M Q 3 E ° .. c o a 136 a s A 'CA W tWil pN w i a yYp� V otl ca r Q to G °cP— W 2 } `o w LD aicaa Gm/ C o w m be - G ws � a m g .2� .X .ac O o .. a� �'$. 2? CL � m I �� a ro3 9amm fn oom�'�aiL°� QV cY Ei� N'a L��YO ad3 oaoo r oco`mm0 m mm QmO Vo O} Oa a Z.roYQoZ Q U cS Qm MO ti > N ff I M t0 /n c 3 � N a O N N PS-RA 00031 � � ri m PS-RA #22 �BA � .� 2c� a� i■ °2 g}0 . g 2 f } rl E fm ! I�7 z 3f©)•$�J I ) _ © ER \ ��. ql m|■ kJ w\0 : a ;?6 f oc 2 m 0a.G §o B�0 . . �� . WO $ . , W 2 . ■ . � f t . 4o k § � ri m PS-RA #22 C �g C A w m E 0r! E 9 V C m N m m E m s N m ^C d mN V U 0 m N L 0 a t m C a 0 0 m m 3 0 c m m c 0 E m m a v 0 3 m L r a T � m m U y 00 M n7 9 C y mm LoC V C m qw PS -RA 00033 t JS 43 r�.b. IL w: VMS sssass��as as�dsaasasa PS -RA 00034 1J j 1-1 2. l STt urea G. PouN, ESQ. 3034 Towis a 8T. N.W. Anwrry &Law wAMMTCMr, D.C. 20015 Tm (a02) 331-5840 FAX (202) 537 -2986 5PouN2ftMnWxMNsr March 13, 2009 SENT VIA ELECTRONIC MEANS AND MRST CLASS MAIL T. Peter Pier(e, Esquire Richards I Watson I Gershon 355 South Orand Avemu., 40th Floor Los Angeles, California 90071 -1469 RE: Pacific Shores Properties v. City of Newport Beach CV -08 -00457 NS (RNB) Dear Peter: Please be advised that Pacific Shores Properties is hereby amending its request for a reasonable accommodation as follows; Pacific Shores Properties is requesting as a reasonable accommodation that the City of Newport Beach waive the requirement that "Residential Care Facilities" be located only in MFR with a "use permit ". Newport Beach Zoning Code ("NBZC") §20.10.020. To that end, Pacific Shores Properties is also requesting that the City of Newport Beach as a reasonable accommodation "grandfdber" in the use of the dwellings located at 492 'r4 Orange Avenue, 492 Orange Avenue, 3309 Clay Street as a legal nonconforming uses, consistent with R-2 zoning and that the City of Newport Beachwillno longerclassifyor treat these dwellings as"Residential Care FadlitiW as that term is defined by the NBZC §20.05.010. Pacific Shores fitther requests as a reasonable accommodationthat the City enforce all codes provisions, zoning, building, fire safetyandanyotter applicable code to the use of492'Ar Orange Avenue, 492 Orange Avenue, 3309 Clay Street in the same manner that those codes are employed and enforced to single family and two family residential land uses located in the R -2 zone as those terms are defined by the NBZC, §20.10.010. if you have any questions or need additional information, piesse call me at 202- 331 -5858. cc: Christopher Brancart Mark Manderson Dana Mulhauser PS -RA 00035 =a Y � i `Off RICHARDS I WATSON I GERSHON 0 ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION 355 South Good Awn", 40th ROar. LOS Ao6elM, CelNomtN 90071-3101 Telephone 213.626." Faosfnge 223.626.0078 Nrcawrl I KLUWMN iMMGW .N YONIYY A OYMq no L 040mg NM WltliW n Mlle TrIm", 6TFNxe9M OWLN iwM1 NIMn rRNMaM 7µ.99°•^9M Re: Pacific Shores Properties, LLC — Request for Reasonable Accommodation Gentlemen: City of Newport Beach planning staff has reviewed the reasonable accommodation application filed inparts by wayof letterdated December 10, 2007 and supplemental information dated September 24, 2008. Before moving to the next step in the process, one piece of additional documentation is required. Item 2 on the supplemental form requests documentation of the disability giving rise to the request for a reasonable accommodation. That documentation has not yet been provided. Please provide documentation that the individuals on whose behalfthe application is made are disabled under the governing law. The City leaves to the discretion of Pacific Shores and/or the individuals the nature of the documentation to be submitted. Understanding the concems about privacy, the City will accept documentation disclosing only the person's first name or initials (with all other identifying information redacted). PS -RA 00036 November 4, 2008 wNNalft Sw ..Moo MYMLetMFOY VIA FACSIMILE AND U.S. MAIL G9N1 -rNM) YTnM L Nmm NITW 0 L AUM `31"= AMOSt Steven G. Polin, Esq. NNMLR114 RFMNICIOI Law Offices Steven G. sm1Nµ n. Mew of Polin nNINYMeMNw WNNM LT11CM 3034 Tennyson Street, Nw ` eM6eLY M aNUI TNNwMI.» MNMICCRMN washmgton,D.C.20015 RfVY M. NMIIIIY111N iMNN.IIMq MW N. XLIUR Christopher Brancart, Esq. NTRU L 0u Brancart 8e Brancart aMnLZUUwN YATR. e.1eNN rRM M TxoMON Post Office Box 686 - InMei L n11YYIM1 T. 1. . rRU nun Tulin N. NOM Pescadero, California 94060 Nrcawrl I KLUWMN iMMGW .N YONIYY A OYMq no L 040mg NM WltliW n Mlle TrIm", 6TFNxe9M OWLN iwM1 NIMn rRNMaM 7µ.99°•^9M Re: Pacific Shores Properties, LLC — Request for Reasonable Accommodation Gentlemen: City of Newport Beach planning staff has reviewed the reasonable accommodation application filed inparts by wayof letterdated December 10, 2007 and supplemental information dated September 24, 2008. Before moving to the next step in the process, one piece of additional documentation is required. Item 2 on the supplemental form requests documentation of the disability giving rise to the request for a reasonable accommodation. That documentation has not yet been provided. Please provide documentation that the individuals on whose behalfthe application is made are disabled under the governing law. The City leaves to the discretion of Pacific Shores and/or the individuals the nature of the documentation to be submitted. Understanding the concems about privacy, the City will accept documentation disclosing only the person's first name or initials (with all other identifying information redacted). PS -RA 00036 RICHARDS I WATSON I GERSHON Steven G. Polin, Esq. Christopher Brancart, Esq. November 4, 2008 Page 2 ? 1 Also, there was no documentation submitted in response to items 4, 5 and 6 on the supplemental form, nor was any required. Nevertheless, besides the letter dated December 10, 2007, did you want the City to consider any of the documents submitted by Pacific Shores in response to the City's written discovery requests (i.e. the rules and regulation forms produced)? Please let me know one way or the other. I look forward to hearing from you shortly. Very truly yours, T. Peter Pierce 11287\ 00911 1197521.1 PS-RA 00037 Page 20.03 -3 Use Cla d icallons operated by an individual or a for -profit or nonprofit entity, which houses two or more parolees - probationers unrelated by blood, marriage, or legal adoption, in exchange for monetary or non - monetary consideration given and/or paid by the parolee - probationer and/or any public or private entity or person on behalf of the parolee— probationer. A parolee — probationer includes: (i) any individual who has been convicted ofa federal crime, sentenced to a United States prison, and received conditional and revocable release in the community under the supervision of a federal parole officer; (ii) any individual who has served a term ofimprisaunmt in a State prison and who is saving a period of supervised community custody, as defined in Penal Code Section 3000, and is under the jurisdiction of the California Department of Correcticim Parole and Community Services Division; (iii) an adult or juvenile sentenced to a term in the California Youth Authority and who has received conditional and revocable release in the community under the supervision of a Youth Authority Parole Officer; or (iv) any individual who has been convicted ofa felony, sentenced to any correctional facility, including County correctional facilities, and is under the jurisdiction of any federal, state, or County parole or probation officer. For the purposes of this paragraph, "felony" means a felony as defined by any California or United States statute. IL Residential Care Facilities. General. Anyplace, site or building, or groups ofplaces, sites or buildings, licensed by the state or unlicensed, in which seven or more individuals with a disability reside who are not living together as a single housekeeping unit and in which every person residing in the facility (excluding the licensee, members of the licensee's family, or persons employed as facility stab) is an individual with a disability. L Residential Can Facilities. Small Licensed State licensed facilities that provide care. services, or treatment in a community residential setting for six or fewer adults, children, or adults and children and which are required by State4awtobetreated as single housekeeping unit for zoning purposes. Small licensed residential care facilities shall be subject to all land use and property development regulations applicable to single housekeeping units. J. Baltic" Care Facilities. Small U t Any place, site or buiidiog, or groups of plaices, sites or buildings, which is not licensed by the State of California and is not required by law to be licensed by the State, in which six or fewer individuals with a disability reside who are not living together as a single housekeeping unit and in which every person residing in the facility (excluding persons employed as facility staff) is an individual with a disability. K Sin e- Famiji Residential. "Single - Family Residential" metes a building or buildings containing one dwelling unit located an a single lot for occupancy by one family. This classification includes mobile homes and factory bulk housing. L. Two - Family Residential "Two- Family Residential" means a building or buildings containing two dwelling units located on a single lot, each unit limited to occupancy oaanros PS-RA 00038 $tea G. POLIN, ES(.!. ArrwweyAt Iaw T. Peter Pierce, Esquire Richards I Watson I Gershon 355 South Grand Avenue, 401h Floor Los Angeles, California 90071 -1469 Dear Mr. Pierce: n- October 7, 2008 0' ;-'14 Te.Aa.,eK 57. NN.W. sr- -va cren, n.0 2oP15 ;::..zna.; 33t -5fi4R (202: -37 -2996 5! -: uw36Fv� sErum�.err RE: Pacific Shores Properties v. City of Newport Beach CV -08 -00457 NS (RNB) Plaintiff, Alice Connor, has been the recipient oftwo notices ofadministradve citations (see attached) by the City ofNewport Beach. The issues surrounding the issuance ofthe citations revolve around a continuous issue of building or construction without a permit at 3309 Clay Street. The genesis ofthisproblempredates the moratorium lawsuit filed bythe City andthe lawsuit filed by Ms. Connor and the other plaintiffs. Apparently, the issue is whether Ms. Connor and Pacific Shores have submitted current architectural plans. I am told that this problem concerning the plans dates back to 2003 when the previous owner of 3309 Clay Street began to make alterations to the property. Ms. Connor boughtthe property in 2005. According to the information that I have been provided, she made application to the City for building permits on July 17, 2007. The City inspected the property in August, 2007 as well as the Orange Avenue sober houses. On or about August 2, 2007, the City issued a stop work order, I am informed that the reason the stop work order was issued was that Ms. Connor and Pacific Shores had to revise the plans and resubmit them to the City for approval. Apparently the inspection revealed work that was done that was not in the plans submitted by Ms Connor. Ms. Connor and Pacific Shores advised the City that this work was not their plans, nor was it work they had performed. Nevertheless, this has been on ongoing issue since that date. Ms. Connor and Pacific Shores is seeking a resolution of this problem wherein the City will give them 30 additional days to submit the new plans In the event the City agrees to this proposal, Ms. Connor and Pacific Shores would-not commence any work on the premises until the issues of the litigation are resolved. In addition, Ms. Connor and Pacific Shores is also requesting that the City abate or dismiss the notices of administrative citations and the fines contained therein. Mr. Manderson has been in contact with Assistant City Attorney Steve Hook about this matter. PS -RA 00039 n T. Peter Pierce, Esquire October 7, 2008 L�f Please do not hesitate to contact me if you need additional information or if you have any questions. I look forward to an early and successful resolution of this problem. ,irI / �� W. Pacific shores Properties Christopher Brancart Mark Alice Connor P5 -RA 00040 i i i Robert Conn!r--,, 949 1135 - P.1 NOM OF ADAMTBA.'IM CUAIION CCIT OMwwn MUN wawcnaumm:r cam ra. cajaw -01i $o 3w �ni�aatanatm.y�ecloaxaa 33x9 C(RV S't-. �LWTtV- 6R „A I 9 au. [f 1STt9�ATA�1ilM/0.. 14N0�Sfl [IBAMDPAYAHIBl*g4GtNAVWBM t j �saemurs. csr. nnesNOwm�mmuovau�rnmaJS�awuriavmuaar wdnam aa�oaoa�m rruvoseeroe�w�,ueorewsaaoeu�+�s a nori�srioa®mu aanme:e gwaami �aa+a4 I3 3MC[i'ATfMMBA1 «,...,..3 EffDUAMI YAU PS -RA 00041 t i 1 e I . Robert Conner 1135 p.t c--ftft No. cIW'$ -0y SO a�!apu�epnt ARin oftupaft w aot - bdeQtydNvwj=Baei,maWavi diw)of beMw4 tBcwh Wd*dOW A�ica [�.r1�r bN C{;-f4 hr. CA- I ] InCIr ATIWSIOM ..... ...1SNQWDUEAMPAYABIBicOV9fftq Bm I mmmmuYR .Qw911tmmwlAiO®POA/DYW6fAY 86Cf1�BACHBAY7�4mUIION . OABRHrkUH®®if ACl IMANGPIWAt .'t�BMbYA1dON8t!l.SWt7AlWa 8 ND '[A�vID�BlOUODIilAl16108iNU�i'�9 �YI'flaR �Q �. CiTAT ]ON$1,01.00.,«....dSNOWIfUBAND Y�ABiB, [ ] 30.CrUTM$SDUL - ....T9"- =ANDIAYABIB S-twa-. AcAc W4O PS -RA 00042 ua.(19lxec -19sq Nax 1pTIMTWY Ulnaed W{YE L i[pN011 L[9'Y3 04 sy"LW m Y LU"LaTIAa= YMMIUM L 11YOR W,o'M. rtv4Ylo[n VIGRALM R awaR 1 mom MXMII M. EYeaY G wVIKH Insoa".1YMRT TXaxa M.IaEM WBMWG KCYIE arna x. aefalXY aMY a.axa MICIMf, LW![Xa 1M1lXEl &Mnm STLM L On M.1xaa YM 5111MT. /8/IMVM a M. M ILIHRO.RMMe eneM "a' aR" "IMIN t. � "ME WEER nwn IEIEYa 49434A u1a W Yo Nllrt L W1aaM JIM 4. Y. oMi M 04,311" 04,311" MoT IL "uMR wmmu MMa L uM1aM sMmwura WE M WROMT JIM L R. aRM11M RMx "u"COReefxn TRUexoxa 49.2!0484 eRMMI[tOanla[EIeR TRUnnan 2M•yyoogos "j t I[[17 T RICHARDS I WATSON I GERSHON :l ATTORNEYS AT LAW —A PROFESSIONAL CORPORATION 3SS South Sand Avenue. 4oth floor. Los Angela. Callfoala 9oo7sgfo, Telephone 213.626.8484 Facshnfle 213.626.0oT8 February7,2008 VIA FACSIMILE AND U.S MAIL Steven G. Polin, Esq. 3034 Tennyson St., N.W. Washington, D.C. 20015 Re: Reasonable Accommodation Request, Pacific Shores Properties, LLC, 492 and/or 494 Orange Avenue Dear Mr. Polin: I write in response to your letter of December 10, 2007 to Robin Clauson, City Attorney of the City of Newport Beach, California. As you are aware, your letter did not cotta to Ms. Claeson's attention until just last week. Subsequently, your letter was forwarded to me for response, as I am the attorney who filed the pending state court action against Pacific Shores Properties ("Pacific Shores"). Until I received your letter, I was not aware that Pacific Shores had retained counsel other than its local counsel who has filed a motion to dismiss the City's lawsuit. Turning to the content of your letter, the City's pre - lawsuit background inquiries revealed information leading it to conclude that the residential use at 492 and/or 494 Orange Avemte is not a "single housekeeping unit" as defined in the Newport Beach Municipal Code. The City's research also revealed that the residential use includes activities that fall within the definition of "alcoholism or drug abuse recovery or treatment service" as defined in section 10501(ax5) of the California Code of Regulations. Those activities trigger the requirement for a license issued by the California State Department of Alcohol and Drug Programs under California Health and Safety Code section 11834.09. As you admit in your letter, Pacific Shores Properties ins not obtained any license fiam the State. Because Pacific Shores is operating an unlicensed fatality and is providing services as defined above, its operation constitutes a transitory use that was subject to the City's moratorium on such uses at the time Pacific Shores established the use. PS-RA 00043 RICHARDS I WATSON I GERSHON Steven G. Polin, Esq. February 7, 2008 Page 2 Although you extensively analyze the Fair Housing Amendments Act of 1988, the American With Disabilities Act, and case law applying those statutes, the crux of your letter appears to be a request under federal fair housing law that the Citymake areasonable accommodation in applying its laws to the use at 492 and/or 494 Change Avenue. Before addressing the reasonable accommodation process, I . note that Pacific Shores has always been free to apply for a reasonable accommodation. Before the City adopted its temporary moratorium on the establishmart of new transitory uses, Pacific Shores could have applied fora Federal Exception Permit (then the City's vehicle for reasonable accommodation) as was provided for in the Newport Beach Municipal Code. Even after the City adopted the moratorium on April 24, 2007, Pacific Shores could have sought a reasonable accommodation. The City adopted the moratorium as part ofOtdinance No. 2007 -8. Section4ofthat Ordinance expressly provided: "In compliance with Fair Housing Laws [citations], it is the City's policy to provide reasonable accommodation in the application of this interim urgency ordinance to any person with a disability who seeks fair access to housing." The Ordinance than proceeded to explain the process of applying for a reasonable accommodation Yet, PacificShoresdidnotrequestany reasonable accommodation until more than seven months after the moratorium was adopted, and not until a month after the City filed its enforcement action. The City' sexpressprovisionforreasenableaccommodstioncarriedovermto its recently adopted Ordinance amending local regulation of group uses. That Ordinance added Chapter 20.98 to the Newport Beach Municipal Code. That Chapter, entitled "Reasonable Accommodation ;"is attached for your convenience, and your client may initiate the reasonable accommodation process as described therein. Unless and until a reasonable accommodation application is approved, the use of 492 and/or 494 Orauge Avenue remains in violation of local law. The recently adopted Ordinance retains the provision that a use that was rot lawfully established in the first place (e.g., established in violation of the now exposed moratorium) is unlawful PS -RA 00044 RICHARDS I WATSON I GERSHON Steven G. Polin, Esq. February 7, 2008 Page 3 If you have any questions, please do not hesitate to contact me. Very truly yours, T. Peter Pierce Enclosure 112871000611030553.1 cc: Robin Clauson, City Attorney Catherine Wolcott, Deputy City Attorney Dave Kiff, Assistant City Manager James L. Markman, Esq. Patrick K. Bobko, Esq. Toussaint S. Bailey, Esq. PS -RA 00045 SrsvttN G. Potm, ESQ. Anorn7&lam December 10, 2007 Robin Clawson, City Attorney City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 3034 Twor aoN Sr. N.W. Wmasorcu, D.C. 2WIS Ira. CUM 3914848 1iu CW4 537 -2986 Srcrarssurna u ens• Re: Reasonable Accommodation Request Pacific Shores Properties, LLC 492 andlor494 Orange Avenue Dear Ms. Clawson: I have been retained by Pacific Shores Properties concerning the mom actions of the City tofied the preserreeofPapfic Shores Properties its location at 492 xWor494 Orange Avmtxtobe a violation of the City's ordinance regarding the moratorium on the opening of new sober houses. I do not believe the use of 492 anlior 494 Orange Avenue was a new use as defined by the moratodum ordinance. I would request that enforcement oftbis alleged notice of violation be held in abeyance until the City makes a determination ofmy request under the Federal Fair Housing Act for an accommodation which would permit the residents to continue the single family use of the Premises without Sear of prosecution by the City. I am writingthis letter to COnin to you the Pacific Shores concept, and to request pursuant to the Federal FairHousing Act and the moratorium legislation by waiving any potential violations of the moratorium. I would appreciate the opportunity to discuss the Fair Housing implications of Your proposed action and request that tie contemplation of any civil penalties or actions to enforce be held in abeyance until we have had an opportunity to discuss ways to resolve this matter. The use o1`492 audlor494OrangeAvenue has been erroneously deemed to be a new use for Purposes of the moratorium legislation. Notwithstanding the prohibition of allowing new sober horses to open in the City during the pendency of the moratorium, such aprobi'bitimt is illegal and is direct contradiction to other provisions of the City's zoning code which allow groups of unrelated acn disabled persons to occupy a dwelling without prosecution from the City. The City's Zoning Code within its defiaition of family includes the classification of "single housekeeping emit." A "single housekeeping unit?' is defined as " "Single Hbusekeepbeg ilait" means the fonctlond egatvalert of a traditional fm hi K whom arembers are an fearncetive Swap ofpewwlo+ntlY occeepyfag a single dweQing unit, wuler no more than one wrimen or anal rental agreement, lruludingthejoW are ofcommon areas and slwinghowsehold activities and respancihilitiessuch as meals, chores and expenses. The City has made a decision to deny dose individuals who are i { PS -RA 00046 Robin Clatson, Esquire 2 December 10, 2007 recovering sk oholics and substance abusers from being considered a family as is dce right ofother similarly situated non - related, no-related and disabled and non- related groups desiring to live together as a family. As you already are aware, the residents of 492 and/or 494 Orange Avenue are recovering alcoholic and addicts. Theref ore, fbrthe reasons stated below, Pacific Show requests pub to the Federal Fair ling Act that The City of Newport Beach make a reasonable accommodation m the application of its zoning ordinances and other municipal codes so that a group of recovering addicts and alcoholics residing together as a family can be afforded an equal opportunity to use and enjoy a single family dwelling 492 ardor 494 Orange Avenue is being used as alcohol and drug free housing for racavering alcoholics and addicts. 492 and/or 494 Orange Avenue is a sober living environment designed to increase self -responsibility and support for persons in recovery. Pacific Shaer does am provide a "recovery program" or services. Thera a no counseling, or therapy offered to rho residents. The group behaves like any family and makes group deomon based on democratic procedmea. Pacific Shores is nothing more than a single family residence. 492 and/or494 Orange Avenue is not asubatance abuse tteatmentfacility, ahalfwayhouse, a shelter, aWav home nor aresideatia l care facility. Then isnotreatmmt ,wunwlip& therapy, or any type of health cue service provided. 492 and/or 494 Orange Avenue are not licensed by the State of California our are lionises regnared. 492 and/or 494 Orange Avenue, as opposed to a halfway house, residents live there by deice. 492 aod/or 494 Orange Averme is net a belfway house, no is it a substitute for halfway houses. 492 and/or 494 Orange Avenue is neither a morning nor a boarding house. The residents of 492anN or494OrawAvemure wtheeatimpramiswratbcrd =4shtgtemom. Tbeyhoveaccess to the entim hone and all of the household facilities, and live in the house as any other group of umelaad Persons fimchomng as a single housekeeping unit. The residans of the hoax share all household responsibilities. They also share in the cool dog, shopping cleaning and gewagl care of the premises. The residents live together purposefully to create a "family' atmosphere, where all aspects of domestic lift am shared by the residents. Thee are no treatment orpmfessional services provided at the promises. Physically, the have is no different from any other single fancily hoax in the neighborhood. In sum, for the Saar reasons assured, ,,w,e submit that the use of 492 and/or 494 Orange Avenu sM not aresidmtial can fadlitY, ^m ingor boarding housa ,gnMbomeuorhaifwaay-house under any applicable definition. See Oxford House. Evermcca v. LSty of Plainfield 769 F Supp. 1329 (D. NJ.1991XOxford Hoax is our a halfmwayy bone. Resideros share more than "household mponsih UdW and meahm. The residents make all house decisions in a democratic f'a ltiom. But PS-RA 00047 Robin Clawson Esquire nmember 10, 2007 even more impottam, the support they lend cub other is therapeutic, in the same mama as thatof awell- finwtiotingfamily. The relationship isnot analogous tothat be tweenresMetnaofaboa4ing house),.' Residents of houses 492 and/or 494 Orange Avenue are considered to be the "functional equivalent" of a hmily for severaireasons. Fast, all the residents have accesstothe entire house. Second, all the residents participate egaally in the bousekaping functions of the house, M, house chores,borsefinances. Each resident, however, is responsible forbis own food and cooking. Third is the quality of the relationship among the residents. The emotional and mutual support and banding given each resident m support of his recovery from drug addiction and alcoholism is the equivalent to the type of love and support received to a traditional family. In addition, residents live is a house operated by pacific Shores by choice. The choice is usually motivated by the individual's desire not to relapse into drug and/or alcohol use again after that individual has bottomed out, !Lr. lost jobs, home or family. It is also motivated by the desire that one must change their lifestyle, the manner in which the conduct their affairs, and the need to become anapoastble ,prodacuve member ofsociety. Tim final factwin determining that residents of bones 492 and/or 494 Orange Avenue is the "fimetio al equivalent" of a family o the fad that there is no limit as to how long a resident can stay. Conceivably, an individual can AV in ahouse operated by Pacific ShoresakfstimeMic does notnlapsehrtodrug a ►dlorahwhol use, paysbistent an time, and does not engage in disruptive behavior. 'Also, See Oxford Fuse fur., et aL v City of Chary Hid. 799 F. Supp. 450, 442 (D.N:J. 1992), wherein the Corot stated: Oxford Houses an no health care facilities, rehabilitation canters, or supervised haifwq houses. They are simply residential dwellings rented by a gmW ofindviduals who are recovering from alcoholism and drug addiction'. .. No professional aeatmeM, thaapy, or paid staff is provided. Unlike a boarding lausq where a proprietor is responsible to run and operate the promises, tut Oxford House, the residents are responsible for their own food and care as well as for running the home. Because the house must be seff- suthe pporiing, each of the residents needs a source of income to pay his or her fair share of Sel,_it ,._. 797 F.S app 353, mft 968 F.2d 14 (3dCir. 1992XOxfwd Houses are not health care facilities, rehabilitation centers, or supervised halfway houses. Unh7ce those facilities, no professional treatment or paid staff am provided. Instead, such hoses are simply residwlisi dwellings that are rented by a group of individuals who are recovering from alcoholism or dog addiction.). The Court also held that Oxford House residents me handicapped under the Federal Fair Housing Act, and that the ruts drug and/or alcohol addictions did substantially impair one or more of their major Ufa activities. PS -RA 00048 Robin Gleason, Esquire December 10, 2007 The residents of 492 aallor 494 Orange Avenue are considered 'handicapped" under the 1989 amendments to the Federal Fair Housing Act. go 42 U.S.C. 3600 aim Recovering addicts and alcoholics are specifically imladed within the definition of "handicapped individual." 32L,42 U.S.C. 3602(h) and 24 C.F.R.100201(a)(2). Sm W=Cily of Edmonds v.Oxf"A KMMa.7nc.514 U.S. 725( 1994 The Fair housing Ad was amended to Mode handicapped individuals within its pasaincters, and to guaraafe the ability of these individuals to live in the residence of their choir within the commhmity. Tsombuidis v_ City of West Haven 190 F.Supp. 2d 262,282 (D. Conn. 2001k See Oxford H - Eyeromen v. City of Ptatettdd. supra (noting that residents of an OxfordHovseinPldnficANeWJersey "are part ofansdoneHyrecx progmnwhich ,through . peapressmandsmdcmxWonsofabstwenco, su irllymm fac&mfzwna&hcbmand improves the lives and opportunities ofitaparticipams .')Oxford House, Im, v. C1ty,ofg=Hill 799 F. Supp. 450, 454 (D.N.I. l"TA Lao is a of imre housing in New fee J recovariug substance abusers and alcoholics Requiring the chorine of 442 out a94 Owe " Aveii a and foromg the residents to kave'woud'd lie ezhaiiely dchimentol to ibeu r000vay a`nd would substantially increase the liltd'hood of relapse). As recovering alcoholics and addicts who cannot preaeotty live bxkpmdm* or with their natural fazailies, plaintfH are individuals with handicaps within the meaning of the Fair Housing Acx. City of Plainfield, at 1342.' Under 42 U.S.C. 3604(1)(1) it is tmiawfid To discriminate in the sale or rental, or to otherwise malts unavailable or deny a dwelling to any buyer or renter because of handicap of— (A) that buyer or renter (B) a person residing in or h mmftg to reside in that dwelling after it is so sold, rented, or made available; or C) any Pam associated with that buyer or renter. As members of a protected class under the Federal Fair Housing Act the issue of whether the residents of492and /or494Ormsge Avenue are in violation ofthe local zoning ordinances is not relevant to the question of federal law, DJnjjc� Mates v. Ilomagh of Au bin, 797 F. 9M. 353, AO 968 F2d 14 (34 Cir.1992). jUv6 any allegation that 492 andlor 494 Orange Avenhe have 1With respect to iodrvhdoals with disabilities, violation of the Fair Housing Act may be shown by either inteaddnal dsaimdnatioa, discriminatory effect, or a hililurre, to reasonably accvmnmdate. - Evergreen Y ily of p1dofidd at 1343; ra6aY House - C v City of St. [.ads 843 F. Supp. 1556 (ED. Mo. 1994); Camam v. Roc Housing Amh>irv- 748 F. Stipp 1002,1007 (WD. N.Y. 1990). PS-RA 00049 Robin Clawson. Esquire December 10, 2007 violated a local taming ordinance does not abrogate its rights in claiming discrimination under the Federal Fair Housing AcL It is well established that the Federal Fair Housing Act prohibits discrimmatory land use dechim n by mummpalitw%when such decisions ere "osteam'ldy authorized by local ordimmm" Oxford Haase - Bver = v City of Fia ddd. sapm. (on motion for a preliminary injunction: city's enforcement of zoning ordinance ro as to prevent operation of local Oxford House in an zoned for single family residences violated the Federal Fair Housing Act); 740 F.Supp. 93 (D.p.R. 1990)(gove nment ages denial of land use permit to open AIDS hospice violated Fair Housing Act); Baxterv. City of leviLM 720 F.Supp.720 (S.D. III 1999xam motion for preliminary injunction: city's rdusalto issue special use permit under zoning law to develop to remodel building into residence for persons with AIDS violated Fair Housing Act} Set also 42 U.S.C. Section 3615 ra" law of a State, a political m*divisian, atothor jurisdiction that purports to require orpermita yactionthatwouldbeadiscrm iantory housing practice under this aubchapter shalt to that extent be invalid [under the Fair Housing Actj "). In addition, fler purposes of this section, 42 U.S.C. 3604(f)(3)(B) defines discrimination to irdudea "refo dtomalcorcoombleaceommodownsmndc %policies,pmadens,orsomcea,whm such accommodations may be necessary to afford such [ Wed] person equal opportuaky to use and eanoy a dwelling." The legislative history to the Fair Housing Amendments Act of 1988 ("House Judiciary Report") is explicit as to the effiect of the amwAnew an slate and local land use practices, regulations or demsions which would have the effect: of discriminating against individuals with hambcvs. The amendments prohibit the discriminatory enforcement of land ummlaw two cangregata living ar mTwbets among non- reiated persons with disabilities, such as 492 and/or 494 Otattga Avenue, when those requirements are not imposed on families. [won SWf)) would also apply to state or local land use and health and safety laws, regulations, practices or decisions vdaich discriminate against individuals with handicapoL While stateamllooalgovemmmtshaveauthority W 1 ft he" and to regulate use of land, that authority has sometimes '"'�� regruxtheabilityofindivMudswithbaodicapstaRve in commwtiYw. has been accomplished by such as the enactment or imposition of health, safety or land -use requirements on congregate living RMUMemets among men- related persons with disabilities. Simi these requirements we not imposed on families and group of similar size of unrelated leoplej then requirements have the effect of disaiminating against persons with disabilities. House Report, P. 24 (f M to omiued). Based on this clear expression of legislative Intent, the courts have rejoined the OPplicadon nod enforcement of zoning and health add safety regulations PS -RA 00050 Robin Clumm, Esquire December 10, 2007 which have adisaimioat ayihupctonpuvhomesforpetsonswithdisabilides. CitvofPla . 769 F. Supp. at 1343 -44; City of Cherry MR, 799 F. Supp. at 462; Oxford House. hr. Y. Townof 819 F. Supp 1179 (P— DN.Y.1993); Marbnmak. Ina v. Cnv of ^d v , 974 F.2d 43 (6th Cir. 1992); w F A P S v Fcia t enons& Permits Admia, supre at 106.07; Tsombanidis V. City of West Haven 180 F.Supp. 2d 262, and inpar 4 rev d in part, 352 F.3d 565 (2d Ch. 2003). it is quite apparent that The City of Newport Beach's efforts to interfere with 492 amllor494 Orange Avenue thmuetr its went activities —"m imposed on families" —Is a failure to make ruble accommodation in its zoning odmanoes. Thus, the City may not act to prevent tbose withhamda* sfi, omHvinginmowmyhousingwithmitsbamdadcs. Areasonableaccommodetion in this instance would be for the City to amept the residents of 492 antler 494 Orange Avenue as the functional equivalent ofa family and tted the number o (unrelated persons asafanWasdefined in Section B of the City's definition of family and apply all budding and Sea codes in the same manner as it applies to single family dwellings for single family purposes. The reasonable accommodation requirement of tike Fair Housing Act draws no distinction between "rules," "Politics." and " practices" that are embodied in zoning ordir races and those than r enaaaufrenrMhersources. AUwemi!jcatothe "reasoasbleaccommodation "requirement. Thu% t When amMicipality refbM to make aressonable accommodation in its zoning "tutee," "pnliciea," ce°pmcdo s," mid suchanaccomrnodationmaybenecessarytoaffordhandicappedpersonsanequal opportunity to use and e4cy a dwel ling, it violates the reasonable accommodation provision ofthe acy42U.S.0 3604(0(3)(B). See U W - tatesv 3M IM Wars ad. 787F. Supp.872,877(W.D. Wis.1991XCongeess in eoactiog the Fair Housing Amendments Act "anticipated flat there wens rules regulations and governmentaldetrmon about land me) Reasonable accommodation has been intapr eted by the Courts in cases involving zoning ordinances to mean that a mtaoinipality must change some rule that is gay applicable to everyone so as to make its burden less onerous on the person with dimbilittes. City ofQ= Hill 4465,R.25. SO Cmb4a_. iQis% MgiceCtirtofpnermR iofaftjlisttitofAr ben 752 F. Supp 1152,1169 (D.P.R.1990), rev'd on other gm,m& 988 F.2d 252 (1st Cjr.1993xaotirg that a court hearing a reasonable accommodation claim under the Fair Housing Act may "a fralge whets camPfiaota with the zoning Ordinances may be 'waived"'}; Horizon House DmWMM Sandcea v. CigrofUppty 804 F.Supp.683, 699 -700 (B.D. Ps. 1992),MZMESUI., 995 F.2d 217 (3d Cie, IM)(Oaffimrative sbeps are requited to change roles or practices if they are necessary to allow a person witb a disability to live in a community"). A request for a reasonable AamciffiionofRMI&detei y `p'tt for Izs 914F.Supp1555,1561 -62 1996); Tenmbanidis supra One of the purposes of the reasonable accommodations provision is to address individual needs and "appeal to individual cimmmtumm In this regard, courts have held that municipalities PS -RA 00051 Robin Clomon, Esquire December 10, 2007 that mumevdrm must change, waive, or make exception to their zoning rules to afford people wish disabilities the semis access to horsing as those who are without disabili8p. Tows of Belwlon. 819 F. Supp at 1192; Horizon Houtse 804 F. Supp. at 699; City of Chem Hill 799 F. Stipp at 461.63; V jijM of MaeshalL 787 F. Supp at 878; Commonweaft of Puerto Rios 764 F. Supp. at 224; Tumbenidie. m" Here, accommodating 492 auftr 494 Orange Avenue would not cauae the City any ntdte 5nattcialoradmmt*Wmburdeasmrwould itundemmnethepmposewhkhtheregtdreaseatswb to achieve. See. Village of Marshall, supra at 877 -78 (accommodation is unreasonable if it "undemunc[s] the basic purpose which the requirement seeks to achieve'. The Fair Homeang Act placesacta(iamativedutyonthemwu dpolitytoamommodittheneedsofptxaonawithdisabilities. The Act demands that usmi4slities such as The City of Newport Beach to change the manner in which its zoning otdimacm are applied to afford the disabled the saute opportunity to bDUdng m those who are not disabled. City of Pldffi 769 F. Supp at 1344 (accommodation ramble where it " would not came undue financial burden to the City"). Petmkrmg 492 aaUor 494 Orange Avenue to exist would not sign i5canfly compromise the policies reflected in myofthelaodrseordimnceathathe City would apply m . Noristhere any significant evidence that so& an accommodation would significantly compromise the City'a legitimate hrt mftintheprota4ingtheresidentialcharacterofthestmuwtdingneighborhood .492 andlor494 Orange Avetme ism requesting that The City ofNewport Beach build bousing, rather, 492 and/or4940rmile Avenue isre* nsdngtbdtheCityremoveanohstacletohuusing. SmIawn 15 (1988). Ifneedbe, Pacific Shoreacan demonstrate, that the ptaposedaccommodation isrmsomb* for the Fair Homing Act Minh= a showing that the accommodation "ply be necesmryto afford [handicapped] P Is) equal oPporm&y to use and enjoy a dwelling ".42 U.S.C. 36WQ(3)(B� See. Parish of MEMO I. Allied H•±M Cam r 1992 U.S. Dist. Lcds 9124 (ED. l.a.XMc, proper inquayemareques tibc areasomMeaceommodedoa is thetwmberofttorelatedpenonswho can tesidetoget heristoreasasmblenemoftheregaesl .) The City of Newport Beach, byelassitying 492 aud/or494O=WAwmns as something otherthanasingle familyme, isacnai(yenihreing its definition of fonily in its zoning ordinance by utilizing more stringent rerluaements one groups of unrelateddisabledMvkd Wswishingtolivetogetherinarentalpropertytheftonindividualsrelated by blood or marriage or a group of unrelated non4sabled persom (Zoning ordinance limiting the amber of unrelated persons residing together as a fitmily to four found to be in violation of the Fair Horsing Ace since it has tea effect of &=hnimeing against groups of1utnriicappedpeasom by uonecessarilyresriuu ngtheir ability to live in reesidencesoftheir choiceinthecommurity.) disv. CitvofWestus.,.. ,._180F. Supp. 2d262(D.Conn.2003) fiWAip lLLa "d mpox rev'dfitporr, 352 F.3d 565 (2d Cir.2003). (Stringent enforcement ofher City's throe person rule has a greater adverse itapact on disabled M W M than W&&SaMW parrots). PS -RA 00052 Robin Chum Esquire December 10, 2007 or drug abusg. 472 a'ndfbi49C Orop Avattse monstrate that the ability of recovering alcoholics and drug addicts to live in a supportive drug free environment in a quiet residential area is critical to their recovery' These individuals are more likely to need a living arrangement such as the one 492 andlor 494 Orange Avenue provides, wherein groups of unrelated i1XIMdu8la reside wgedw m a rmdentud emoborhoW for mutual support during the raeovery proeeas. CityChty o� j$ii,799F.Sapp.at450. "Whenthathomeisalsoa* mpeutiemAmnmentmidcalmntsWdning continued recovery from alcohol or drug addiction, eviction is life threatening. Depriving such individuals of housing, or evicting them, would constitute irrational distaimina6on that may seriously jeopardise their continued recovery, °mat 284. See Cily ofP{ainfidd.769F. Supp at 1345' This action by The City of Newport Beach would dwnnPkt* Per& 1b- opportunity of492 and/or 494OraripAvenue to exist within the City and to rasW in the dwelling oftheir choice. It would also probiNt Pacilic Shores fran Providing bousiagto handicapped persons in recovery from alcoholism and drug abuse.I hope you find this information unfal. I would MM to discuss this mater with you or arty other representative of The City of Newport Beach before it contemplates any finder action. The moratorium imposes terms, conditions and requirements on sober homes that are not imposedonothergrcupsofpeasoru ,rdmedortmrelawd inaddi6at ,ttlpebtadenserenotimposed on other groups of disabled persona, as the ordinance specifically contains such exclusions. 'Other programs simikrto 492 sndfor 494 Orange Avenue bave succesdilly demonstrated the need of recovering individuals to reside in quiet residential areas is order to enhance the recovery prccesa See Borough of Aodabon. 797 F. Supp at 360 (Based on the testimony, we find that the OH- Vassar residew addictions substantially limit then, ability to live independently and to live with dWr families. Accordingly, we find that the residents am "handicapped" under the Act, and we entitled thereby to me Projection of tha Act. We do not think that the list of major life activities sec form in the regulation was meant to be all - inclusive Even if it were, the residents would still sad* an definition because their itabHity to live independently constitutes a substantial lmulation on their ability to "coca for therawlves."Y OU of glainSeld 769 F. Supp at 133940. (In addition to losing their residence, which may in itself be an irreparable injury, plaintiffs would also lose the benefit of their therapeutic aid supportive living environment, and may relapse... For a non - handicapped individual, the disintegration of a family unit is traumatic for recovering alcoholics and drug addicts, it may be devastatirng.) *rhenfare, any action jeopardim the recovery process for a group of alcoholics and th>emm to push them into relapse causes iaep>amble ham that justifies preliminary hjunctive rehkE Sullivan Y. City of Fins ,roh_ 911 F. 2d 171,179-80 (3d Cie), cart. denied 484 U.S. 180. 81(1987)_ PS -RA 00053 Robin Clausen, Esquire December 10, 2007 9 The moratorium is not facially neutral. It bars from living within the bm*rsofthe City of NewportBeschaprotecteddmofpmmisasdefinedbytheFederalFairHoudngAct. Wbatwould the reaction is the community beifthe City had enacted the moratorium to bar frown living in single family dwellings families based on race or national origin? However, this is nottbe can with the ordinance. 7bc ordinance intentionally discriminates against the protected cress, recovering addict and alcoholics because it singles them out for disparam treatment. The issue of whether the City had a discriminatory motive in enactingthe ordinance is irrelevant to analyzing the ordinance under the FFHA and the ADA. 1}plmeerter v_ City of O=L 46 F.3d 1491,1501 (10th Cir. 1995)(the statute discriminates on its fate by allowing conditions robe placed on group housing for the handicapped whichwonidnotbepetmiroedformon- hetuiicappedbmmg.)_ Sincethemoratmoraimposesspecid conditions on those providers wishing to provide lousing to a protected class, i.e., ra evening alcoholics and substance abuses and are imposed only on facilities for recovering addicts and alcoholics, the ordinance is facially discriminatory. Differential treatment on the face ofordinanee demote anintentto discriminate additional evidence ofdrscr minamyan,mmusisnotrequired. -4 at 15OD-1501; 950 F. Supp. at 14 %. EagMW jkM Homes Com. Y. 823 F. Stipp. 1285, 1296 n. 9 (D. Md. 1993x"'Rme fad that rise notice regulation !may also incidentally catch in its net some group homes that save individuals without handicapadoca not vitit tsfacial invalidity ofthettdewhicheleariymswictsthebmsingchoices of people based on their handiw "q. Since the marntorimn only applies to recovery homes, which house only recovery alcoholics and addicts, and not to living arrangement for other groups of disabled non- relded persons, a violation of the FFHA and the ADA is commbte& sauna the single out for regulation, such as a ban of opening getup homes for the handicapped are facially discriminatory. Larkin v State of MichISM Dot. of Social Services_ 89 Fad 283, 289 (6th Cir. 1996)(Strilft down 1500 foot apaciug requirement which prohibits the licensing of a new faa7ity). Horizon Hose v. Township of Llpper Sta+Ln+s+nnten_ 804 F. Sapp 693,694 (ED. Pa. 1992x1000 foot spacing requirement is Wally disaiminstm .). The result of tlds requirement is to restrict the housing choices of recovering addicts and alo"198. actions %8 F.2d 14 (3d Cir. 1992NSM 133- 35(N.D.N.Y.1992kSim= B. mcK 1211 -16 (D. Comm. 1942); Oxford Hoar Belleville 11.720 F. Stipp. 720,732 (S.D.I F. Supp. 95,104 (D.PR 1990). "jnfan citizens motivated in part by animus toward aprotected 06797F .Supp.353,359- 62(D.NJ.1991) ;affdm*hQVj TI Ministries v. Villaee of Waterford. 805 F. Supp. 120, roeyFoundationv.Townof airfi 1d790F.Supp.1197, =.LxzUM 769 F. Supp. at 1343; Baxter Y. City of 1989 );A.F.A.P.S.y.KWdationB:Fer_y. taAdmia,740 act is performed simply in order to appease the PS -RA 00054 Robin Clamm Esquire 10 December 10, 2007 discriminatoryvhewpomuofpnvateparties, thatactibdfbecome $uffdedwnhcbs=hmtoryadm t am if the decisiommaker personally has no strong views on to matter." 9 While it is not known what the City's rationale is in promoting a moratoriwn against the Opening Of any new sober houses, it is unlawfid under the FFHA and ADA. It creates an explicit classification based on di sabil ity with no rational basis ce legitimate government inteest. Tha motive of drafters of a facially discriminating ordinance, whether benign or evil, is irrelevant to a detaminem of the lawfole ss of the ordinance. lnrerrMioeal Union. United Auto Workers, v. Johnson Controls. Inc. 11 S.Ct 1196,1204 (1991x"the absence of a malevolent motive does not convect a fadallydis©iminatory polity into a neutral policy with a diseiaainetory effect Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but tether on the explicit tame of the discrimination.) This, a requitement banning the opening of the is indistinguishable from a ceiling quota imposed onminarities for integration maintenance purposes, practice which has been rejectedbytheeou ts. 804 F. Stipp at 694 (citations emitted). The ordinance is facially invalid because it excludes, restricts and/or limits the choices of recovering addicts and alcoholics ofthey am live within the City ofNewport Beach. tt limits their acoeas to essential community resources, and thwarts the effumta to treat people recovering from alcoholism or addiction equally in the community negatively, thug aRecting their self esteem, and stigmatizing them because of their disability. There does not exist similar limits on choices of biological families, umvl td group of persons, or persona residing in group homes for the handicapped. McmconsidwtheforqpftobjeWowcmvfidly . FlememeaftseathainwrINngorover the telephone prior to whether the City is willing to stay eafmcement of the ordinance for the putposeofbrinftitintocempliamawiththeFFHA and ADAin facaoftlreseobjections. Unless we can reach a resolution of the issues I have colined above, my eliem will have no choice but to to seek injunctive relief in federal court. l look forward to dooming ways to resolve this matter with you. i J• r f cc: Mark h4andersou PS-RA 00055 1114►V RICHARDS WATSON I GERSHON A s f %•CU6NiYS3T LAYf- 0. +R:7I {Q3>PRATI174 , SSomhk.a iul AVC6a q.rth l:o .Arg «I- ,(:Ir:yno yang ]vn : ?t:•I:nmw 21]•E: n.it4gd `'ASir+ilt n9.n�6.onT9 :'ehekK P:h,c ,neh +•..^un.e! >••'.u.. 1ttt1C 1. _'UU9 Steven G. Polin - Law Offices of Steven Ci. Polin 034 Tennyson Street. NW Washington, D.C. 2001-5 Re: V,i\rurt Coast Reeaverp — Use Permit hearing Dear Mr. Pulin: I write this letter to follow -up on the City's attempts to schedule your client's Use Permit hearing. As you recall. the City Council remanded die hearing on Newport Coast Recovery's use permit to the Hearing Officer at its April 14, 2009 meeting. More than a month has passed since the City Council remanded the matter. and we have not been able to agree upon a date for the hearing. To avoid any further delay. the City will conduct the Use Pemtit hearing on either June 15'h or 10 at 4:00 p.m. at the Newport Beach City Hall council chambers. Kindly let me know which of these two dates you prefer not later than 5:00 p.m., on Wednesday, June 3, 2009. if we have not heard from you by then the City will unilaterally select the hearing date. If you have any questions or concerns. please do not hesitate to contact me at die number listed above. Sincerely. Patrick K. Bobko I-, 5 -:H 1: 1 :::gnAF'. Ili, PS-RA 00056 RICHARDS ' WATSON I GERSHON ATTORNEYS AT:AW A PRnFE55)0%AL C09PO RAT Ch Steven G. Polin September 3, 2009 Page 2 bee: Janet Johnson Brown Dave Kiff Cathy Wolcott Kyle Rowen T. Peter Pierce PS-RA 00057 Staff Report for March 25, 2009 Reasonable Accommodation Hearing (Including Exhibits l -11) PS -RA 00058 CITY OF NEWPORT BEACH HEARING OFFICER STAFF REPORT March 25, 2009 Agenda Item 2 TO: Thomas W. Alien, Hearing Officer SUBJECT: Pacific Shores Properties, LLC (PA2008 -181) 3309 Clay Street, 492 Orange Avenue, and 492 % Orange Avenue • Reasonable Accommodation No. 2008 -001 APPLICANT: Pacific Shores Properties CONTACT: Janet Johnson Brown, Associate Planner (949) 644-3238, LrownCa Zcitv.newnort- beach.ca.us PROJECT SUMMARY A reasonable accommodation application from requirements of the Newport Beach Building Code (CBC). requesting five separate accommodations Municipal Code (NBMC) and the California 1. The applicant requests that residents of its facility at 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue (hereinafter, "the Pacific Shores facility") be treated as a single housekeeping unit as defined in Section 20.03.030 of the Newport Beach Municipal Code; 2. The applicant requests that the City no longer classify or treat the properties at 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue as 'Residential Care Facilities; as defined by NBMC Section 20.05.010; 3. The applicant requests that the City classify the use of the dwellings at 3309 Clay Street, 492 Orange Avenue and 492'% Orange Avenue as a legal nonconforming use; 4. The applicant requests that all code provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue (including Zoning Code, Building Code, fire safety. and any other applicable code) be applied to those properties in the same manner that those codes are applied and enforced to single family and two family residential uses located in residential districts zoned R -2;. 5. The applicant requests that the City waive the requirement of NBMC Section 2(191A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit. PS -RA 00059 Reasonable Accommodation No. 2008-001 March 25, 2009 Page 2 Staff recommends the Hearing Officer conduct 'a public hearing, receive testimony from the applicant, the City of Newport Beach and its legal counsel, and members of the public. At the conclusion of the public hearing, staff recommends the Hearing Officer. 1. Deny with Prejudice Reasonable Accommodation No. 2008 -001, Request No. 1 based on the findings discussed in this report, and 2. Deny with Prejudice Reasonable Accommodation No. 2008 -001, Request No. 2 based on the findings discussed in this report, and 3. Grant Reasonable Accommodation No. 2008 -001, Request No. 3 based on the findings discussed in this report, and 4. Deny with Prejudice Reasonable Accommodation No. 2008 -001, Request No. 4 based on the findings discussed in this report, and 5. Grant Reasonable Accommodation No. 2008 -001, Request No. 5 with conditions proposed by staff, pending receipt of additional information from the applicant (although, in light of conditions proposed by staff, if the applicant wishes to request a continuance on this portion of the hearing to review and present additional Information, staff will not oppose it); and 4. Direct staff to prepare a Resolution for Denial with Prejudice of Reasonable Accommodation No. 2008 -001, Requests No. 1, 2, and 4, and continue the bearing to a date certain for approval and adoption of the Resolution by the Hearing Officer. 5. Direct staff to prepare a Resolution for Approval with Conditions for Reasonable Accommodation No. 2008 -001, Requests No. 3 and 5, and continue the hearing to a date certain for approval and adoption of the Resolution by the Hearing Officer. INTRODUCTION The subject properties are located at the southwest comer of Orange Avenue and Clay Street in a neighborhood referred to as Newport Heights, and are zoned R -2 (Two - Family Residential). The parcel located at 492 Orange Avenue and 492 '% Orange Avenue is developed with two dwelling units. The parcel located at 3309 Clay Street is developed with a single- family dwelling. The neighborhood is characterized by single - family and two -unit residential uses, with a mixture of rental and owner - occupied properties. The westerly property line of each parcel abuts a site developed with a commercial medical office building. PS -RA 00060 Reasonable Accommodation No. 2008.001 March 25, 2009 Page 3 The properties are owned by Alice Connor, an individual. Pacific Shores Properties, LLC operates a sober living facility for adults in recovery from alcohol and/or drug abuse in the dwellings. PS -RA 00061 z 15b Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 5 BACKGROUND Facility Establishment Dates 3309 Clay - Staff is not certain when the single - family dwelling at 3309 Clay was converted to residential care or group residential use. However, when City staff inspected the building in response to complaints about unpermitted construction in 2007, the building appeared to be in use as either a residential care or boarding house use. This dwelling is currently unoccupied, pending resolution of ongoing code compliance issues. 492 % Orange — Final building " inspection necessary for occupancy occurred In September 2005, and the facility was occupied thereafter. 482 Orange - Final building inspection necessary for occupancy occurred on April 24, 2007, and the facility manager was observed moving furniture and tenants into the building on May 8, 2007. Code Enforcement Issues A number of Issues with the Pacific Shores facility have arisen since early 2007.' In Spring 2007, City Code Enforcement staff received reports of illegal construction occurring at the 3309 Clay Street address. Inspection showed substantial unpermitted construction to the building, including a number of illegally constructed bedrooms that were Inhabited by facility occupants. The City issued a Notice of Violation. To comply with City and state Building Code requirbments, the City requires that violators remove unpermitted construction and /or obtain approved building plans for the unpermitted construction. The property owner submitted plans to the Building Department for plan check of the work soon after the stop work order was issued. in this situation, it is the Building Department's standard practice to delay further' enforcement action to give the property owner a chance to complete the plan check process. Over a year later, the property owner had made no further attempts to complete the plan check process. As is the City's standard practice, enforcement efforts resumed in October 2008, and. an administrative citation was issued. In the process of reviewing plans submitted by the property owner in response to the administrative citation, staff noted the building was incorrectly classified as an R3 occupancy (single - family or duplex) for Building Code purposes, rather than the R4 occupancy that includes residential care facilities with more than six residents. On February 23, 2007, City Code Enforcement staff requested information about the type of use at the Pacific Shores facility. The manager of the property at the time, Mark Manderson, Sr., Informed Code Enforcement verbally and in .writing that the facility 'Including an open porch surrounded by plastic sheeting, which appeared to house one resident. PS -RA 00063 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 6 leased room to tenants, was `merely rentals ... for any person who is looking to reside In a custom house in Newport Beach'" and was not a recovery facility. (Exhibit 1) On May 8, 2007, a complaint investigator with the California Department of Alcohol and Drug Programs (ADP) attempted to investigate allegations of unlicensed treatment at the Pacific Shares facility. She reported to City staff that Mark Manderson told her that that the Pacific Shores facility was not a recovery facility, and just rented rooms to tenants. At her request, Mr. Manderson'provided her with copies of sample leases with Individual tenants. She determined that the Pacific Shores facility was likely a sober living facility, but that the sort of treatment services that required licensing did not appear to be occurring on -site. (Exhibit 2) In July 2007, the new facility manager, Mark Manderson, Jr., told City Code Enforcement staff that the Pacific Shores facility was a sober living home. In October 2007, the City filed a lawsuit in state court for injunctive and declaratory relief against Pacific Shores, LLC and other parties for violations of the City's moratorium ordinance. The City dismissed Pacific Shores from that suit In early 2009. In January 2008, the City received two pages of a fax from Pacific, Stores attorney Steve Polin, dated December 10, 2007, which requested a reasonable accommodation for Mr. Polin's client but did not state specific exemptions required. Upon request by the Office of the City Attorney, the text of the entire reasonable accommodation request was sent to the City, arriving in late January 2008. On February 23, 2008, the City received notice that Pacific Shores Properties, LLC, had filed a complaint against the City with the Department of Housing and Urban Development (HUD). Following the City's response, the complaint was referred to the Department of Justice (DOJ), which has delayed further action pending the processing of Pacific Shores' requests for reasonable aocommodatlons. On April 28, 2008, Pacific Shores filed a federal lawsuit against the City, alleging violations of the federal Fair Housing Act, the Americans with Disabilities Act, the Equal Protection and Due Process clause of the Fourteenth Mendment, as well as state law violations of the California Fair Employment. and Housing Act, Califomia Government Code Section 65008 and the privacy, equal protection and due process provisions of the California Constitution. Although most claims were dismissed when the judge granted the City's Motion for Summary Judgment, some are still pending in federal court. On September 24, 2008, the applicant submitted an Application for Reasonable Accommodation to the City requesting that the City treat the residents of its facility as a Single Housekeeping Unit, as defined by NBMC Chapter 20.03. (Exhibit 3) On March 10, 2009, the applicant's attorney submitted an amended request for reasonable accommodation, requesting that the City treat the facility as a legal - nonconfonning use, that the City no longer treat or classify the facility as a residential PS-RA 00064 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 7 care facility, and that the City enforce all zoning, building, fire safety and other codes applicable to the facility as if the facility were a single- or two- family residential use. (Exhibit 4) On March 13, 2009, the applicant's attorney submitted a second amended request for reasonable accommodation, requesting .an accommodation from the requirements of NBMC Section 20.10.020 (Residential Districts: Land Use Regulation) to enable the facility to remain in its current location. (Exhibit 5) On March 17, 2009, staff wrote to the applicant requesting additional information. (Exhibit 6) Written responses from the applicant are included as Exhibit 7, and the information in the verbal responses is Included in the description of operations below. Description of Operations The applicant intends to house up to 50 resident clients- in the single- family dwelling at 3309 Clay Street and the adjacent two building located at 492 and 492 '% Orange Avenue. (See Exhibits 8, 9 and 10 for most recent floor.plans on file with the City). Individual clients .reside at the facility under a separate written agreement with the operator, and abide to a set of house rules, (Exhibit 11) such as: • I choose to remain clean and sober today • I choose to do my chore today • I choose to attend a minimum of 1 meeting today, to arrive early, to stay seated throughout the meeting and to sit with housemates and not potential dates • I choose not to smoke, loiter, or hang out in front of the house today • I choose to honor the House Rules and understand I can be asked to leave for not doing so. Parking The building at 3309 Clay Street provides two on -site parking spaces in an enclosed tandem two -car garage. The building addressed as 492 Orange Avenue has a tandem two -car garage, and the building addressed as 492 % Orange Avenue includes a two - car garage (side -by -side parking spaces). I1 =. Pacific Shores reports that it does not have a "manager" or "administrator," but that there are two residents designated in each house to make sure that tenants do not use drugs or alcohol and to ensure the quiet enjoyment of the dwelling. They also reported that "Mark Manderson, who assists in the maintaining the homes, is available on a 2417 basis." Client stays PS -RA 00066 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 8 The applicant did not report the average length of resident stay. However, other sober living facilities have reported that their resident stays range from 45 days to 180 days, with an average stay of 90 days. Curfew and Quiet Hours Curfew hours for residents are 10:00 p.m. on weekdays; and 11 :00 p.m. on weekends. Pacific Shores states that "curfew applies only to new members of the household during the first 30 days of tenancy. Quiet hours apply to all tenants" Treatment Services The applicant states that no treatment services are provided on -site. Residents attend 12 -Step meetings at various locations offske. Transportation The applicant states that not all residents have personal vehicles, but that residents are permitted to have personal vehicles while residing at the facility, or use public transportation. No transportation services are provided by the facility operator. The applicant states that all residents "park along Old Newport or along the commercial park area on Orange. No resident parks along Clay or the non - commercial parking area along Orange (i.e., Orange NE of Clay)" Deliveries No information was supplied by the applicant on this topic. Medical Waste No Information was supplied by the applicant on this topic. DISCUSSION The federal Fair Housing Amendments Act (FHAA), adopted in 1988, prohibits housing discrimination based on a resident's disability. Under the FHAA, it is discriminatory for government entities to refuse to make reasonable accommodations from rules, policies, and practices when such accommodations may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling (42 U.S.C. § 3604(fx3KB)). The Ninth Circuit has repeatedly emphasized this requirement, stating that under the Fair Housing Act, "unlawful discrimination includes refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling. We have repeatedly interpreted this language as Imposing an affirmative duty on landlords and public agencies to reasonably accommodate the needs of disabled PS -RA 00066 Reasonable Accommodation No. 2008 -401 March 25, 2009 Page 9 individuals." McGary v. City of Portland, 386 F.3d 1259, 1261 (9'^ Cir. 2004) (italics added). Cases interpreting the FHAA have held that a government agency has an affirmative duty to grant a requested reasonable accommodation If: (1) the request is made by or on behalf of a disabled individual or individuals, (2) the accommodation is necessary to afford the disabled applicant an equal opportunity to use and enjoy a dwelling, and (3) the request Is reasonable. Cities may find an accommodation request unreasonable if granting the request would: (1) result in a fundamental alteration in the nature of a City program (often described as undermining "the basic purpose which the requirement seeks to achieve "), or (2) would impose undue financial or administrative burdens on the city (See U.S. v. Village of Marshall, 787 F.Supp. 872, 878 (W.D. Wisc. 1991). Whether a requested accommodation is reasonable and necessary must be determined on a case -by -case basis. Because Request No. One and Request No. Two are similar, staff will analyze them together. Staff will analyze each of the other requests separately. Reasonable Accommodation Analysis No 1 — Request to be Treated as a. Single Housekeeping Unit. and In its September 24, 2008 application for reasonable accommodation, the applicant requested its facility be treated as a Single Housekeeping Unit, as that term Is defined in NBMC Section 20.03.030, Section 20.03.030 (Definitions) defines a Single Housekeeping Unit as: "The functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit, including the joint use of and responsibility for common areas, and sharing household activities and responsibilities such as meals, chores, household maintenance, and expenses, and where, If the unit is rented, all adult residents have chosen to jointly occupy the entire premises of.the dwelling unit, under a single written lease with joint use and responsibility for the premises, and the makeup of the household occupying the unit is determined by the residents of the unit rather than the landlord or property manager." The applicant said the ac ournmodation requested is necessary to enable residents of Pacific Shores to live in a setting with a self -paced recovery option which gives them sufficient time for personal psychological growth while avoiding the use of alcohol or other substances. Applicant stated that, absent the sober living setting, residents of Pacific Shores would not be able to live In a supportive environment in a residential area, let alone a single -family residential area. (Note: the facility is located in a Two Family Residential [R- PS -RA 00067 Reasonable Accommodation No. 2008 -001 March 25; 2009 Page 10 21 District; not a Single - Family Residential jR -1] District.) The applicant said a request for accommodation to be defined as a "family' is necessary for the current and future residents of Pacific Shores to enjoy the housing of their choice. The applicant further stated that the residents of Pacific Shores are not transient by nature, and function and interact with each other in much the same way as the functional equivalent of a trad(tional family. In its first amended request, dated March 10, 2009, the applicant requested to not be classified or treated as a Residential. Care Facility, as that term is defined in NBMC Section 20.05.010. , Section 20.05.030 defines the various Residential Care use classifications as follows: Residential Care Facilities, General. Any place, site or building, or groups of places, sites or buildings, licensed by the State or unlicensed, in which seven or more Individuals with a disability reside who are not living together as a single housekeeping unit and in'which every person residing in the facility (excluding the licensee, members of the licensee's family, or persons employed as facility staff) is, an Individual with a disability. Residential Care Facilities, Small Licensed. State-licensed facilities that provide care, services, or treatment in a community residential setting for six or fewer adults, children, or adults and children and which are required by State law to be treated as a single housekeeping unit for zoning purposes. Small licensed residential care facilities shall be subject to all land use and property development regulations applicable to single housekeeping units. ' Residential Care Facilities, Small Unlicensed. Any place, site or building, or groups of places, sites or buildings, which is not licensed by the State of California and is not required by law to be licensed by the State, in which six or fewer individuals with a disability reside who are not living together as a single housekeeping unit and In which every person residing in the facility (excluding persons employed as facility staff) is an individual with a disability. The applicant's facility is also considered an Integral Facility. Integral Facility residential use classifications are defined as follows: Integral Uses. Any two or more licensed or unlicensed residential care programs commonly administered by the same owner, operator, management company or licensee, or any affiliate of any of them, in a manner in which participants in two or more care programs participate simultaneously in any care or recovery activity or activities so commonly administered. Any such integral use shall be considered, one use for purposes of applying Federal, State and locbl laws to its operation. The residential use classifications listed in Section 20.10.020 of the NBMC are limited to: Day Care, Limited (Large and Small Child Care Homes — not applicable) PS -RA 00068 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 11 • Group Residential (Not Single Housekeeping Units — prohibited in all residential districts) • Multifamily Residential (Single Housekeeping Units a prerequisite to be considered MFR use) • ParoleelProbationer Homes (Prohibited in all residential districts) • Residential Care (General Licensed, General Unlicensed, Small Licensed, Small Unlicensed) (Not Single Housekeeping Units, but not prohibited Group Residential because residents disabled) • Integral FacilltiesAntegral Uses (Two or more residential care facilities that are integrated components of one operation) • Single - Family Residential (Single Housekeeping Unit a prerequisite to be considered a single family residential use of a dwelling) • Two - Family Residential (Single Housekeeping Units a prerequisite to be considered a two- family residential use of a dwelling.) If the facility is not treated and classified as a Residential Care or Integral Facility land use, the closest land use classification for a use of ttis'type is a Group Residential use, as defined in NBMC Section 20.05.030(C). The Group Residential use classification is defined as: Group Residential. Shared living quarters, occupied by two or more persons not living together as a single housekeeping unit. This classification includes, without limitation, boarding or rooming houses, dormitories, fraternities, sororities, and private residential clubs, but excludes residential care facilities (general, small licensed, and small unlicensed) and residential. hotels (see Single -Room Occupancy (SRO) Residential Hotels, Section 20.05.050(EEX4)). Group residential uses include boarding arouses, rooming houses, dormitories, fraternities, sororities, and private residential clubs but expressly exclude residential care facilities. However, Group Residential uses are not permitted in any residential district in the City. Therefore, being treated as a Group Residential use Is not a helpful acconwriodation for the applicant, and staff doubts it is what the applicant intended. Parolee/ProbatIoner homes are also prohibited in all residential districts. The remaining applicable land use classifications provided by Section 20.10.020, Single - Family, Two - Family and Multifamily Residential are all land use classifications that only qualify as that land use classification because they are occupied by Single Housekeeping Units. If the occupants of a dwelling previously categorized as a Single - Family Residential use were not living as a Single Housekeeping Unit, they would transform the use of that dwelling to a prohibited Group Residential use. Therefore, as it appears that Request No. 2 is an alternately worded request to be treated as a Single Housekeeping Unit, staff will analyze Request No. 2 as a repetition of Request No. I. Ordinance No. 2008-05 codified the procedures for requesting, reviewing and granting, conditionally granting, or denying all requests for reasonable accommodation in the City PS -RA 00069 Reasonable Accommodation No. 2008-001 March 25, 2009 Page 12 of Newport Beach. The Hearing Officer Is designate to approve, conditionally approve, or deny all applications for a reasonable accommodation. The ordinance also established required findings and factors the Hearing Officer may consider when making those findings. Pursuant to Section 20.98.025(B) of the NBMC, the written decision to approve, conditionally approve, or deny a request for reasonable accommodation shall be based on the following findings, all of which are required for approval. 1. Finding. That the requested accommodation Is requested by or on the behalf of one or more Individuals with a disability protected under the Fair Housing Laws. This findina can be made. The applicant submitted a statement signed by Mark Manderson, Jr., that every resident of the facility is in recovery from alcohol or drug addiction. Federal regulations and case law have defined recovery from alcoholism and drug addiction as a - disability, because it Is a physical or mental condition that substantially impairs one or more major daily life activities. Z Finding. That the requested accommodation is necessary to provide one or more individuals with a disability as equal opportunity to use and enjoy a dwelling. This findina cannot be made. Staff does not question the need for sober living homes, nor the fact that persons with a disability must have the opportunity to use and enjoy a dwelling. However, the exemption requested by the applicant Is unnecessarily broad to achieve the goal of providing disabled housing. A request to be considered a Single Housekeeping Unit is essentially a request to be exempted from all of the provisions of Ordinance No. 2008-05 which place any sort of reasonable regulation on the operations of residential care facilities. This is not necessary, because there are many more narrowly tailored accommodations that could enable facility residents to enjoy the housing of their choice without depriving the surrounding neighborhood of reasonable conditions that mitigate the adverse secondary impacts that emanate from this facility. The applicant asserts that being treated as a Single Housekeeping Unit is necessary because facility residents cannot live independently without the threat of relapse, and because the environment provided by the facility is necessary to achieve an opportunity for the residents to live in a setting which is a self -paced recovery option that gives them time for personal psychological growth while avoiding. the use of alcohol and other substances. Without the sober living environment offered by the facility, applicant states, individual residents of the facility would not be able to live in a supportive environment in a residential area. However, a total exemption from the provisions of Ordinance No. 2008 -05 is not necessary to afford its residents the opportunity to live in and enjoy a dwelling or a similar sober living setting. As the applicant raised the issue of how the facility should be characterized in its necessity argument, and asserted the facility closely resembles a Single Housekeeping PS -RA 00070 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 13 Unit, staff has analyzed whether Pacific Shore's characterization of itself as a Single Housekeeping Unit is appropriate based on the applicant's submitted materials. Staff has determined the nature of the applicant's faclity operations most closely resembles a boarding house use. But for the fact residents are recovering alcoholics, the facility would be classified as a prohibited Group Residential use, or a Boarding or Rooming House as that term is defined In NBMC 20.05.030. (Residential Use Classifications) ("A residence or dwelling unit, or part thereof, wherein a room or rooms are rented under two or more separate written or oral rental agreements, leases or subleases or combination thereof .. ") Copies of leases submitted to ADP, titled "Agreement to Stay in My House," indicate that each resident enters a separate written agreement with the applicant to reside at the facility. Based on the applicant's former characterization of the facility as "just leasing rooms to tenants," and the use pattern described by the individual leases, the description of operations is much closer to the NBMC's definition of a boarding house or group residential use than a single housekeeping unit. This in no way resembles the NBMC definition of a Single Housekeeping Unit. As stated above, NBMC Section 20.03.030 (Definitions) defines a Single Housekeeping Unit as: "The functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit, including time joint use of and responsibility for common areas, and sharing household activities and responsibilities such as meals, chores, household maintenance, and expenses, and where, if -the unit is rented, all adult residents have chosen to jointly occupy the entire premises of the dwelling unit, under a single written lease with joint use and responsibility for the premises, and the makeup of the household occupying the unit is determined by the residents of the unit rather than the landlord or property manager." Applicant's resident clients may be an interactive group of persons jointly occupying a single dwelling unit who share common areas, although the applicant has not submitted any evidence in support of this. However, it appears there is no joint responsibility for meals or expenses, no single written lease, and the makeup of the household is determined by the applicant rather than the residents. Staff also remains troubled by the contradictory infommation submitted by the appiicaftin 2008 regarding whether the facility was a sober living facility or a group of boarding houses. Pursuant to NBMC Section 20.98.025(C), the City may consider the following factors in determining whether the requested accommodation is necessary to provide the disabled Individual an equal opportunity to use and enjoy a dwelling: A. Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disablllty.' PS-RA 00071 Reasonable Accommodation No. 2008 -001 March 25, 2009 . Page 14 If the requested accommodation is granted, any number of the applicants current and potential clients will. be able to live in a home in an R -2 District with other individuals in recovery. This is a situation that can affirmatively enhance the quality of life of a person in recovery from addiction, unless overcrowding of the facility or institutionalization of the neighborhood interferes with the residents' re- integration Into society. B. Whether the individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. As stated above, the exemption requested by the applicant is broader than necessary to achieve the goal of enabling disabled individuals an equal opportunity to enjoy the housing type of their choice. The City has pointed out that more narrowly tailored exemptions could enable disabled individuals to reside at the applicants facility, and the applicant has submitted additional requests as a result. C. In the case of a residential care facility, whether the requested accommodation Is necessary to make facilities of a similar nature or operation economically viable in light of the.particularities of the relevant market•and market participants. The applicant does not state why being treated as a Single Housekeeping Unit is necessary to make its facilities viable in light of the current market for the type of services it provides. Instead, the applicant specifically objected to this request and chose not to answer it. This does not lead staff to the conclusion that being treated as a Single Housekeeping Unit is necessary to make applicant's facilities financially viable. D. In the case of a residential care facility, 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. In 2007, City staff estimated that there were approximately 315 sober living beds in the city, (These numbers are exclusive of . the up to 213 ADP- licensed treatment beds.) Operators of many sober living facilities within the city have reported decreased census and vacant beds, which could provide potential Pacific Shores clients with an equal opportunity to live in a sober living environment without granting the accommodation. The evidence does not support the applicant's contentlon-that treating residents of its facility as a Single Housekeeping Unit will change the availability of the existing supply of facilities of a similar nature, or afford them a substantially greater access to an equal opportunity to live in a residential setting. PS -RA 00072 Reasonable Accommodation No. 2008 -001 March 25, 2008 Page 15 Even if the applicant provides housing for the disabled, and even if the requested accommodation is necessary, the City is not required to grant a request for accommodation that is not reasonable. Cities may find a requested accommodation unreasonable If it either (1) imposes an undue financial or administrative burden on the city, or (2) results in a fundamental alteration in the nature of a city program, often described as undermining "the basic purpose which the requirement seeks to achieve." 3. Finding: That the requested accommodation will not impose an undue financial or administrative burden on the City as "undue Nnancial or administrative burden" is . defined In Fair Housing Laws and interpretive case law. This finding can be made. Treating the facility as a Single Housekeeping Unit would not impose a currently identifiable undue financial or administrative burden on the City. However, staff makes this finding with caution, because the applicant has a history of code violations at this property. Plans on file with the City indicate that approximately 56 to 58 individuals qgMW be housed at the three facilities if some rooms not labeled as "bedrooms" on plans were used as bedrooms. If resident populations were unregulated and code violations continued, currently unidentifiable financial or administrative burdens could arise as a result. A. Finding: Mat 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. This finding cannot be made, The purpose of the NBMC's definition of Single Housekeeping Unit Is to allow staff to determine whethet groups of related or unrelated individuals are living together in a dwelling as a single housekeeping unit. This definition is necessary because of the persistent attempts by landlords to establish Illegal boarding houses and illegal units in dwellings within the City. Groups Irving as a single housekeeping unit can live together in any residential zone in Newport Beach. Groups not living as a single housekeeping unit are prohibited from establishing residences in any of the City's residential zones. There is, however, an important exception to the total prohibition of groups not living as a single housekeeping unit — groups not living as a single housekeeping unit In residential care facilities of any size. Essentially, all residential care facilities in the City have already received a reasonable accommodation from the NBMC's restrictions on groups rot living as a single housekeeping unit. The NBMC provides many opportunities for new facilities to establish, and has provisions for existing facilities to continue in their current locations with appropriate impact mitigation. Licensed facilities housing six or fewer residents can establish in any residential zone of the City. PS -RA 00073 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 16 Although the residents of residential care facilities receive preferential treatment because of their disabled status, the NBMC's Zoning Code also applies regulations to unlicensed and larger (mare than seven residents) licensed facilities. These regulations are in place to ensure that the fundamental purposes of the Zoning Code can be achieved, and so the adverse secondary impacts higher density residential care facilities have on the surrounding neighborhood can be mitigated. If the facility is treated as a Single Housekeeping Unit, it is entirely exempt from any of the reasonable controls the City might place on it. The City.would be unable to make any reasonable effort to reduce the adverse secondary impacts such as noise, overcrowding, and unruly behavior by residents of applicants facility to the detriment of neighbors, in addition to finding solutions to the applicant's disproportionate consumption of available on -street parking, and the overconcentration of facilities within a single block to the point of creating a quasi - institutional environment in this neighborhood. It is highly likely that most other similar facilities within the City would request a similar exemption, thus nullifying the Ordinance's effect entirely. Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the City's zoning program: A. Whether the requested accommodation would fundamentally after the character of the neighborhood. Since establishing the first of its dwellings as a sober living environment, a number of adverse secondary impacts have been reported by residents of neighboring properties. The impacts reported include but are not limited to: • Meetings held at one or more of the applicant's facilities • Excessive use of on- street parking by facility residents and their guests • Second hand smoke • Noise late at night In many hearings for use permits and reasonable accommodations for nonconforming uses in residential areas, owners of neighboring properties have voiced concerns about affects on their property values if the permit, or accommodation Is granted. Due to a number of factors, including general fluctuations in the real estate market, staff is reluctant to speculate that any decline In property values Is a direct result of the operation of applicant's facilities. Accordingly, this consideration was not factored into Staff's analysis. B. Whether the accommodation would result in a substantial increase in traffic or insufficient parking. Parking — The applicant has stated that residents are permitted to have personal vehicles at the properties, but that few residents own cars. The applicant states PS-RA 00074 ' Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 17 that "all park along Qld Newport or along the commercial park area on Orange. No resident parks along Clay or the non - commercial parking area along Orange (i.e., Orange NE of Clay)." Each building provides two enclosed parking spaces, consistent with the Zoning Code requirement for single- family and two- family residential development regulations. However, the Zoning Code requires off - street parking and loading spaces for a residential care facility at a ratio of one space for every three beds. If the Pacific Shores facility provides housing for up to 50 resident clients, and the required 17 off-street parking spaces are not provided, granting the accommodation would result in insufficient on -site parking. Traffic and Generated Trips — The Institute of Transportation Engineers (ITE) establishes and publishes standards for trip generation rates based on the use classification of a site. In the case of a single family dwelling, the standard trip rate is based on 9.57 average daily trips per dwelling, and for duplexes the standard trip rate if 6.72 average daily trips per dwelling. Trip rates for residential care facilities are based on 2.74 average daily trips per each occupied bad. Based on these standards, a 50-bed °residential care facility would generate approximately 137 average daily trips. The evidence shows this facility will generate average daily trips substantially In excess of surrounding single- and two -family dwellings. 5. Finding. That the requested accommodation will not, under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. This finding can be made. A request for reasonable accommodation may be denied if granting it would pose "a direct threat to the health or safety of other individuals or result in substantial physical damage to the property of others.' See 42 U.S.C. § 3604(fK9). This is a very limited exception and can only be used when, based on the specific facts of a situation, a requested accommodation results In a significant and particularized threat. Federal cases interpreting this exception, in the FHAA indicate that requested accommodations cannot be denied due to generalized fears of the risks posed by disabled persons. SUMMARY In summary, with regard to the applicant's request to provide reasonable accommodation that treats the facility as a Single Housekeeping Unit, Findings Two and Four cannot be made. In accordance with the provisions of Section 20.98.025 of the NBMC, all five findings must be made in order for the Hearing Officer to approve a request for Reasonable Accommodation. Therefore, staff recommends that the Hearing Officer deny the Reasonable Accommodation request for the residents of the subject property to be treated as a Single Housekeeping Unit and to not be classified or treated as a Residential Care facility. PS -RA 00075 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 18 • Anallsis — Reasonablq_AccomModation Request No 3 - requests that the Cry classify the use of the dwellings at 3309 Clay Street and 492 Oranga Avenue and 492 Y2 Orange Avenue as a legal nonconforming use. The City is already treating the dwellings as nonconforming uses. Pursuant to Ordinance No. 2008 -05, owners and operators of all nonconforming uses in residential districts had the right to apply for a use permit after the ordinance became effective in February 2008 up until May 22, 2008. However, the applicant did not choose to submit an application for a use permit. Per the ordinance, nonconforming uses in residential districts. are subject to abatement at this time. Pursuant to NBMC Section 20.62.090 B, a property owner may request an extension of the abatement period so as to amortize the property's owner's investment The applicant may also apply for Reasonable Accommodation, which is the subject of this report B-?. Zoning Code: The applicant requests that the Zoning Code be applied to the uses at 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue as if these properties were in the residential use classifications Single - Family Residential or Two-Family Residential, as described in NBMC Section 20.10.020. Per NBMC Section 20.05.030, in order to be considered a Single - Family Residential or Two - Family Residential Use, the dwelling must be occupied by one or two Single Housekeeping Units, as defined by Section 20.03.030. (Although Section 20.10.020(K) and (t) refer to °occupancy by one family" and "each unit limited to occupancy by a single family," staff routinely substitutes the definition of "Single Housekeeping Unit° for "family" to comply with the rule of City of Santa Barbara v. Adamson, 27 Cal.3d.123 (1980), which precludes the City from defining families in terms of blood, marriage or adoption.) Therefore, the applicant has essentially made a third, if differently worded, request to be treated as a Single Housekeeping Unit In keeping with the analysis performed for Request No. One and Two, above; staff recommends denial of this request. PS -RA 00076 Reasonable Accommodation No. 2008-001 March 25, 2009 Page 19 The California Building Code (CBC) provides building standards and requirements for various types of occupancies that may be located in a building. The CBC is also the source of most fire and life safety requirements for different types of occupancies. Implementation and enforcement of some sections of the CBC are under the jurisdiction of the local Building Official, while others are under the jurisdiction of the State Fire Marshal. Enforcement of those sections under the jurisdiction of the State Fire Marshal Is delegated to the local Fire Marshals. Like the Zoning Code, the CBC- focuses on the use to which a structure will be put when It sets standards. The CBC refers to the use types as "occupancy classifications," rather than "uses," but the CBC still focuses on the use, and whether the physical structure is appropriately built and sited on the property for a particular use or occupancy classification. For buildings that will house certain occupancy classifications, the CBC sets standards for whether openings such as doors or windows are permitted within a certain distance from the property line, where a building is located in relation to the property line, smoke alarm and sprinkler system requirements, interior stairwell illumination, and other issues related to preventing the spread of fire from one structure to another, and to the occupants' ability to safely exit a building during a fire or other emergency. Fire - resistant types of construction are also required for certain occupancy classifications, or for. occupancy classifications housing a certain number of residents, for fire safety purposes. Residential care facilities are included in one of the occupancy classifications designated by the State Fire Marshal in the CBC. Since 1991, the CBC has included occupancy designations for alcohol and drug recovery facilities, with specific Code provisions put in place for the protection of those facilities' occupants. In the current version of the CBC, the 2007 CBC, single - family and duplex uses are R3 occupancies. Facilities such as the applicant's are R4 occupancies. The R4 occupancy classification includes residential care facilities housing seven or more clients in a single building. The CBC states that the R4 occupancy classification includes social rehabilitation facilities such as Halfway Houses, Community Correctional Facilities, Community Correction Reentry Centers, Community Treatment Programs, Work Furlough Programs, and Alcoholism and Drug Abuse Recovery or Treatment Facilities. (2007 Cal. Building. Code § 310) The City did not create the distinction between residential care facility occupancies and single- and two- family occupancies. Similarly, the City did not create the CBC requirements for how life safety is to be protected for residents of alcohol and drug recovery facilities, and how it is to be protected for other occupancy types. That distinction was created by the state's highest authority on fire and life safety issues, the State Fire Marshal. The State.Fire Marshal's authority to establish life safety standards for various types of occupancies Is based on authority expressly granted by the state legislature. California Health and Safety Code Section 13135 (Alcoholism or drug abuse treatment facilities; basis for regulations) states that the State Fire Marshal shall . PS -RA 00077 Reasonable Accommodation No. 2008-001 March 25, 2009 Page 20 adopt regulations for alcohol and drug recovery and treatment facilities. The State Fire Marshal reviews the characteristics and needs of each occupancy type, and sets varying degrees of protective regulations accordingly. it is these state regulations that the City Is requiring the applicant to comply with. The City does not have the authority to grant a waiver from the requirements of a state law of this type. When compliance with a CBC fire and life safety requirement is unduly burdensome, there are situations in which the Newport Beach Building Official or Fire Marshal has the authority to propose alternate fire and life safety protections (described In the CBC as "alternate materials and methods ") that can provide an equivalent level of protection. The Newport Beach Fire Marshal does not,.however, have the authority to waive or reduce life safety protection for the residents of the applicant's facilities when the State Fire Marshal has determined such protection is required. Similarly, the Building Official does not have the authority to reduceithe standards required by the CBC. However, if the applicant disagrees with past or future decisions of either the Newport Beach Building Official or the Fire Marshal, the applicant's appropriate administrative remedy is to appeal that decision to the City's Building and Fire Board of Appeals. At this time, no appeal of any decision relative to 3309 Clay Street has been filed. In the ongoing code enforcement activity with the applicant, the applicant has argued that the facility at 3309 Clay should be classified as an R3 (single-family or duplex) use. The filing of the applicant's reasonable accommodation request for this address confirmed that the property is property classified as an R4 occupancy type. Even if it believed It had the authority to waive life safety 'protections for facility residents and neighbors, staff could not recommend waiving such protection. Staff believes that a responsible sober living home operator that Is genuinely concerned for the well -being of its resident clients should not be seeking an accommodation that would allow it to cut corners in the crucial area of life safety, particularly when it seeks to densely populate Its facility. Nevertheless, staff will analyze the request to underscore the reasons for its recommendation to decry this request. 1. Finding. That the requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing taws. This finding can be made. The applicant has provided a signed statement certifying that all residents of the facility, excluding staff,. are individuals in recovery from alcoholism or drug addiction. Federal regulations classify such individuals as disabled. 2. Finding., That the requested accommodation is necessary to provide one or more Individuals with a disability an equal opportunity to use and enjoy a dwelling. This findina cannot be made. Staff believes that the requested accommodation is not necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling.. The Newport Beach Fire Marshal has indicated that the PS-RA 00078 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 21 changes needed to comply with the CBC are not impossible to achieve, and not prohibitively expensive. NBMC Section 20.98.025(C) allows the City to consider the following factors in determining whether the requested accommodation Is necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling: Whether the requested accommodation will afrmatfvely enhance the quality of life of one or more individuals with a disability. Par from affirmatively enhancing the quality of live of the facility's disabled residents, granting the accommodation would place the life of the facility's residents at greater risk. A. Whether the Individual or individuals with a disability wig be denied an equal, opportunity to enjoy the housing type of their choice absent the accommodation. Denying the accommodation will not deprive facility residents an opportunity to enjoy the housing type of their choice, assuming the facility residents have an Interest in residing in a safe environment B. in the case of a residential care facility, whether the requested accommodation is necessary to make facilfties of a similar nature or operation economically viable In light of the particularities of the relevant market and market participants. The applicant has not argued that complying with the CBC's requirements for R4 occupancies Is not financially feasible for them, or that the facility will not be economically viable I compliance is required. C. In the case of a residential care facility, whether the existing supply of facilitfes of a similar nature and operation in the community is suff+cient to provide Individuals with a disability an equal opportunity to five in a residential setting. In 2007, City staff estimated that there were approximately 315 sober Irving beds in the city. Most of these beds are in facilities that have similar population density or less population density than the applicant's facility. As operators of other sober living facilities have reported decreased occupancy levels, prospective residents seeking a sober living environment of this type will not be deprived of an equal opportunity to live in a residential setting of similar type. 3. Finding. That the requested accommodation wilt not impose an undue financial or administrative burden on the City as "undue financial or PS -RA 00079 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 22 administrative burden" is defined in Fair Housing Laws and Interpretive case law. This finding can be made. Granting the requested accommodation would not impose an undue financial or administrative burden on the City. 4. Finding: That the requested accommodation will not result in a fundamental alteration in the nature of a City program, as 'fundamental alteration" is defined in Fair Housing Laws and Interpretive case law. This finding cannot be made. The State Fire Marshal made the determination that residential care occupancies with more than six residents have characteristics that require a certain degree of extra protection for their residents. Requirements for sprinklers, adequate egress, fire alarm pull stations -and smoke alarms were adopted to allow a population of disabled individuals to live together with a greater degree of fife safety protection. Waiving such requirements would result in a fundamental alteration of the CBC, because it undermines the basic purpose the CRC's life safety protections. Extra protection for R4 occupancies is required in recognition of the fact that the same disabilities that require federal fair housing protection may also impact or impede the disabled individuals' ability to safety and quickly exit a building during a fire. Waiving those life safety protections for residents of this facility would fundamentally undermine the basic purpose which the California Building Code seeks to achieve , safety for the residents of applicant's facilities. Granting the accommodation would also place neighboring properties at risk. The 2007 CBC requires that R4 occupancies have commercial. sprinkler systems rather than residential sprinkler systems installed. Residential sprinklers are intended to protect the occupants of a residence and give them sufficient time to evacuate. a building. Commercial sprinklers are intended to extinguish a fire and prevent it from spreading to other structures. Again, waiving this requirement would undermine the basic purpose the regulation seeks to achieve. Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the City program: These sections will not be analyzed, as they pertain to zoning issues rather than CBC life safety issues. A. Whether the requested accommodation would fundamentally after the character of the neighborhood. B. Whether the accommodation would result in a substantial increase in traffic or insufficient parking. PS -RA 00080 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 23 C. Whether granting the requested accommodation would substantially undermine any express purpose of either the City's General Plan or an applicable 5peciflc Plan. D. In the case of a residential care facility, whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar In nature or operation. S. Finding. That the requested accommodation will not under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. This findino cannot be made. As discussed above, some of the CBC requirements, such as those for commercial sprinkler systems, were adopted to protect neighboring structures as much as facility residents. Staff believes that granting the requested accommodation would result in a potential direct threat to the safety of neighboring properties, and could result in substantial physical damage to the property of others. SUMMARY Staff cannot make Findings Two, Four and Five of the required findings. In accordance with the provisions of Section 20.98.025 of the NBMC, all five findings must be made for the Hearing Officer to approve a request for Reasonable Accommodation. Therefore, staff recommends that the Hearing Officer deny Reasonable Accommodation Request No. Four. On March 13, 2009, the applicant requested exemption from the requirements of NBMC Section 20.10.020. NBMC Section 20.10.020 contains a schedule which establishes the land uses permitted or conditionally permitted in residential districts, and includes special requirements, if any, for specific uses. Because of the limited time between this and other reasonable accommodation and use permit hearings, and the late date of this supplemental reasonable accommodation requesf, this staff report may not be available to the applicant In time for its counsel to prepare a full response. In the interest of due process, if the applicant wishes to request a continuance as to Request No. 5 only, staff will not oppose it. The applicant's facility provides a sober living environment for individuals In recovery from alcohol and /or drug addiction. Although the single - family dwelling at 3309 Clay is currently unoccupied due to code compliance issues, the applicant has used it to house recovering residents in the past, and wishes to do so again in the future. With all three dwellings in PS -RA 00081 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 24 use, the applicant plans to house up to 50 residents at the facility. This land use would be classified as "Residential Care Facilities,- General." Pursuant to NBMC Section 20.10.020, "Residential Care Facilities, Small Unlicensed" are permitted in MFR (Mufti - Family Residential) Districts only, subject to approval of a use permit issued by a Hearing Officer. The applicant's facility is located in an R -2 District, where such uses are not conditionally permitted, or permitted by right. The applicant requests an exception from the requirements that facilities of this type be located only in MFR Districts with the approval of a use permit. Ordinance No. 2008 -05 codified the procedures for requesting, reviewing and granting, conditionally granting, or denying all requests for reasonable accommodation in the City of Newport Beach. The Hearing Officer is designated to approve, conditionally approve, or deny all applications for a reasonable accommodation. The ordinance also established required findings and factors the Hearing Officer may consider when making those findings. i Pursuant to Section 20.98.025(B) of the NBMC, the. written decision to approve, conditionally approve, or deny a request for reasonable accommodation shall be based on the following findings, all of which are required for approval Finding: That the requested accommodation is requested by or on the behalf of one or more Individuals with a disability protected under the Fair Housing Laws. This finding can be mad. The applicant submitted a signed statement that every resident of the facility is in recovery from alcohol and /or drug addiction. Federal regulations and case law define recovery from alcoholism and drug addiction as a disability, because it is a physical or mental condition that substantially Impairs one or more major daily life activities. 2. Finding: That the requested accommodation is necessary to provide one or more Individuals with a disability an equal opportunity to use and enjoy a dwelling. As to current residents: This finding can be made. Staff does not question the need for sober living homes, nor the fact that persons with a disability must have the opportunity to use and enjoy a dwelling. There are currently no residents at 3309 Clay, but the duplex units are occupied. As the abatement period established by NBMC Section 20.62.090(A)(2xa) has passed and the facility chose not to apply for a use permit at this location, this facility is now subject to abatement by the City. The facility currently houses residents at 492 and 492 % Orange who could be denied housing If abatement proceeds while they are still in residence at the facility. As to gm-smctive residents: This finding cannot be made at the pMulation level requested by the applic PS -RA 00082 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 25 The applicant seeks to house up to 50 disabled individuals in three dwelling units. It proposes 12 residents in one six- (or three)bedroom . single - family home, 20 in an adjacent duplex with one 10- (or six) bedroom unit, and 18 in the 9-(or six) bedroom unit.Z Prospective residents seeking a large sober liming. environment In Newport.Beach have an ample supply from which to choose. In 2007, City staff estimated there were approximately 315 sober living beds within the City, which could provide prospective residents of Pacific Shores with an equal opportunity to reside in this type of sober living environment. if Pacific Shores reduces the size of its proposed facility from three dwelling units to one, and limits the population of that dwelling unit to no more than 12 resident clients, plus one on -site resident manager, City staff can accept an argument that granting the accommodation is necessary to afford disabled individuals an equal opportunity to use and enjoy a dwelling. At this time, staff does not have sufficient Information to make a final recommendation on which dwelling unit should be the designated residential care facility if the accommodation is granted. The duplex units have features not found in other known sober Irving facilities; 492 and 492 % Orange are large 6- bedroom (or 10- and 9- bedroom, according to the applicant) units that could praobably accommodate up to 12 Individuals in a comparatively spacious environment. Inspection by the City's building inspector or Fire Marshal would determine which buildings are currently compliant with California Building Code requirements for R4 occupancies. Staff can make a tentative recommendation that the Hearing Officer grant this accommodation to one of the dwelling units, but recommends that no final decision be made until the applicant has reviewed which dwelling unit would be best suited for this purpose. Immediate neighbors of the facility may also have input on this issue, and may have observed whether one unit is less likely to produce secondary impacts than others. Although staff does not wish to make a final recommendation without applicant and neighbor input, it tentatively suggests choosing 492 '% Orange as the dwelling unit for residential care use. 492 34 Orange is a dwelling unit that has Pacific Shores dwelling units on two sides and an Orange Street frontage, which would reduce the negative secondary impacts that neighbors have reported in the Clay Street area. It is also closer to the streets that the applicant reports its residents use for on -street parking, Old Newport Blvd. and the commercial parking areas of Orange Avenue. It is the unit that is ' Number of bedrooms reported by applicant.. Plans filed with the City by the applicant show three rooms identified as bedrooms at 3309 Clay, and six bedrooms each in 492 and 492 % Orange Ave. Staff assumes that rooms identified on plans as "sewing room," "office," "computer room," etc. are being used as bedrooms. Compliance with Building Code requirements for bedrooms cannot be confirmed without inspection. Unfit this discrepancy is resolved, where the number of bedrooms is relevant to analysis, staff will supply analysis for both reported number of bedrooms, and number of bedrooms on the applicants plans. PS-RA 00083 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 26 most likely to be in compliance with CBS requirements for R4 occupancies. in addition, it is one of two Pacific Shores dwelling units that was established before the 2007 moratorium. NBMC Section 20.98.025(C) allows the City to consider the following factors in determining whether a requested accommodation is necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling: A. Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability. If the requested accommodation is granted, the applicant's current and potential clients will be able to live in a dwelling unit in an R -2 District with other Individuals In recovery from alcoholism and addiction. This is a situation that can affirmatively enhance the quality of life of a person in recovery from addiction, unless overcrowding of. the facility or institutionalization of the neighborhood interferes with the residents' re- integration into society. At applicant's proposed population level: At the applicant's proposed population level of 50, with 20 residents in one dwelling, 18 in another, and 12 in a third, staff believes that overcrowding will not enhance the residents' quality of life. A 50- person facility appears to be a sober living institution. A single dwelling unit with 20 residents more closely resembles a sober living dormitory than a sober living home. While living in a supportive environment with other recovering individuals has therapeutic benefits at certain population levels, Irving in a 50- person facility can also be detrimental to the recovery process of the residents. The purpose of community-based care Is to allow residents to re- integrate Into the community as their recovery progresses. If facility residents are surrounded primarily by others in recovery, they have reduced opportunities - to interact with non- disabled neighbors and re -Team the norms and standards of living as fully functioning members of society. At staffs proposed population level: If the requested accommodation is granted, the applicant's residents will be able to live in a large dwelling unit in an R -2 District with other individuals in recovery from alcoholism and addiction. Limiting the facility to 12 residents and an on -site resident manager In a large dwelling unit can provide therapeutic benefit to the residents while still allowing the process of reintegration into society to occur. B. Whether the Individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. PS -RA 00084 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 27 As to current residents: The facility currently houses residents at 492 and 492 Orange Ave. who could be denied housing if abatement proceeds while they are still in residence at the facility. As to prospective residents: At the applicants proposed population level: Denial of the requested accommodation could result in abatement proceedings commencing against the facility. After abatement, current and potential residents of this facility would be denied the opportunity to live in a large three - dwelling sober living facility located in a residential district zoned for R -2 use. However, as stated above, there are a number of similar facilities located in the Cky'•that offer sober living in two dwelling units on a single parcel. Staff has been informed by the operators of those akemate facilities that they are currently occupied at approximately 50% of capacity. Therefore, recovering individuals who are denied housing at this specific facility can locate alternate housing opportunities of a similar type at other existing facilities. At stafF§ proposed population level: As to the duplex units on Orange Street, staff is not aware of other facilities that have space and an interior floor plan that can accommodate up to 12 residents and still have room for offices, game rooms, computer rooms, multiple wet bars, and.other common areas that provide a less compressed recovery environment. As to 3309 Clay, based on staffs inspection of its floor plan and size, it appears that a population of 12 would be more compressed, possibly to the same degree as residents of existing sober living facilities in the Peninsula and West Newport area that have up to six bedrooms in a sober living duplex. C. In the case of a residential care hacitity, whether the requested accommodation is necessary to make fecilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants. In its September 24, 2008 application for reasonable accommodation, the applicant objected to this request and declined to provide information. Therefore, staff is unable to analyze whether a particular number of residents are required to make the facility financially viable.. D. In the case of a residential care facility, 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. In its September 24, 2008 application for reasonable accommodation, the applicant objected to this question, and referred to its answer to another application question containing general information about the importance and necessity of supportive sober living environments for recovering individuals. The PS -RA 00085 Reasonable Accommodation No. 2008 -001 March 25, 2009 . Page 28 applicant concluded that the requested accommodation was necessary for the present and future residents of the facility to enjoy the housing of his or her choice. At applicants prgoosed population level: Staff is unable to reach the conclusion urged by the applicant. In 2007, City staff estimated that there were approximately 315 sober living beds in the City. There are many existing facilities that provide sober living environments that occupy more than one unit of a building, or are adjacent to other sober living facilities with a similar client/bedroom ratio (assuming all the bedrooms reported by the applicant prove to meet code requirements for bedrooms. If not, applicant's proposed population would be substantially more densely populated than the typical 12- person facilities scattered throughout the Peninsula and West Newport areas.) At staffs proposed population level: If the size of the facility were reduced to 12 In one of the duplex units, staff could accept an argument that although there are many existing sober living facilities within the city that have a resident client population of 12, none are of a "similar nature and operation," which the Municipal Code authorizes staff to consider. Staff is not aware of any existing sober living facilities that are located in dwelling units as large as the duplex units on Orange Ave. The units in the duplex have a variety of rooms not identified on plans as bedrooms. City staff who reviewed and approved those plans believes those rooms could and should be returned to the uses that the applicant originally represented. When returned to their original stated purpose, these rooms could provide amenities that the typical 12- person sober living facility does not offer. If the single family dwelling at 3309 Clay were selected as the site of the residential care facility, the argument is more problematic. According to plans on file with the City, 3309 Clay has only three bedrooms. If the applicant converts rooms identified on the plans as a library, exercise room, pool room and /or one of the storage rooms into bedrooms, the common areas that provide a less compressed Interior Irving space are greatly reduced. In addition, there are currently four large sober living homes in single - family dwellings with beds for up to 60 residents in another area of the City, although they have been denied use permits and are currently subject to abatement. The operator of those homes has indicated an intent to appeal the use permit denial, and the outcome of that appeal has not been decided. The operator of that facility also has the option to apply for an extended abatement period under the NBMC. Therefore, the applicant's proposed facility at 3309 Clay is not currently the only facility of a similar nature and operation in the City, and residents will not necessarily be denied an opportunity for housing of a similar type and nature if this request is denied. Even if the applicant provides housing for the disabled, and even if the requested accommodation is necessary, the City is not required to grant a request for accommodation that is not reasonable. Cities may find a requested accommodation PS -IRA 00086 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 29 unreasonable if it either (1) imposes an undue financial or administrative burden on the City, or (2) results in a fundamental alteration in the nature of a city program, often described as undermining °the basic purpose which the requirement seeks to achieve." 3. Finding. That 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 !lousing taws and interprefive case law. As to current residents. this finding can be made, The applicant did not report the average length of resident stay. However, other sober living facilities have reported that their resident stays range from 45 days to 180 days, with an average stay of 90 days. Assuming the applicant's facility has similar lengths of resident stays, allowing current residents to remain at the facility for the remainder of their stay will not impose an undue financial or administrative burden on the City. As to orosoective reside At the applicant's proposed population level this finding cannot be made. In most cases, allowing a facility to remain at its current location when It is necessary to provide disabled individuals with an equal opportunity to use and enjoy a dwelling would not impose an undue financial or administrative burden on the City. However, due to the 2007 illegal construction at 3309 Clay, the ongoing delays in obtaining applicant's compliance with Building Code requirements, complaints received from neighbors about the intensity of facility use, the applicant's violation of the 2007 moratorium at 492 Orange, and the appi"rcanrs history of obfuscation regarding the type of use occurring at the facility, substantial financial and administrative burdens have already been incurred with regard to this facility? If the facility continues at the same intensity of use, negative secondary impacts on neighboring properties seem likely, and the City will have to expend ,additional resources to get the applicant to reduce those impacts. At staffs proposed population level. this finding can be made, At a reduced size and population level, staff anticipates fewer negative secondary impacts on neighboring properties. The City could spend fewer Code Enforcement, Building and Fire Department resources to keep this applicant in compliance with state and local law. Staff makes this finding with the cautiously optimistic belief the facility operator will behave differently going forward than it has in the past. This finding can be accurate only if the applicant ceases its past pattern of obfuscation, and operates its facility with considerate regard for its impacts on neighboring properties. 3 In 2007, applicant's representative Mark Manderson, Sr. informed a City Code Enforcement officer verbally and in writing, and an ADP complaint officer verbally, that Pacific Shores was renting rooms to tenants and was not a recovery facility. Code Enforcement resources were required to clarify whether the property was being used as an illegal boarding house, or as housing for disabled individuals. In addition, the applicant's May, 2007 moratorium violation led the City to file a state court action against the applicant, which incurred additional financial burden. PS -RA 00087 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 30 4. Finding: That the requested accommodation will not result in a fundamental alteration in the nature of the City's zoning program, as "fundamental alteration" is detfned in Fair Housing Laws and Interpretive case law. As to current residents. this finding can be made: The applicant did not report the average length of resident stay. However, other sober living facilities have reported that their resident stays range from 45 days to 180 days, with an average stay of 90 days. Assuming the applicant's facility has similar lengths of resident stays, allowing current residents to remain at the facility for the remainder of their stay will not impose an undue financial or administrative burden on the City. below) Ordinance No. 2008 -05 places regulations on all groups not living in either a single housekeeping unit or a residential care facility classified as "Residential Care Facilities, Small Licensed " The basic purpose of these regulations is to ensure that the fundamental purposes of the Zoning Code can be achieved, and to mitigate adverse secondary impacts residential care facilities may have on the surrounding neighborhood. Basic purposes of providing two- family and multi - family residential districts: The basic purposes NBMC Chapter 20.10 seeks to achieve are set forth in NMBC Section 20.10.010. Those purposes include locating residential development in areas which are consistent with the General Plan and with standards of public health and safety established by the Municipal Code, ensuring adequate light, air and privacy for each dwelling, protecting residents from the harmful effects of excessive noise, population density, traffic congestion and other adverse environmental effects, and providing public services and facilities to accommodate planned population and densfies. As described in the printed and online versions of NBMC Section 20.10.0% the specific purposes of the Two- Family Residential (R -2) District and the Multifamily Residential (MFR) District are identical. The R -2 District "provides areas for single - family and two - family residential land uses," and the MFR District "provides areas for single - family and two- family residential land uses." Staff has confirmed that this is an error in transcription of this portion of the Municipal Code by an outside service, and correction is underway. Planning Department staff notes that in the version of Section 20.10.010 of the Zoning Code which It uses, based on Ordinance No. 2004 -01 which amended the Zoning Code effective January 1, 2008, the Multifamily Residential District Is described differently: "Provides for medium -to -high density residential development up to approximately 36 dwelling units per gross acre, PS -RA 00088 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 31 . Including single - family (attached and detached), two- family and mufti- family. Residential districts zoned R -2 in the Newport Heights area provide for medium - density development. At the applicant's proposed population level: The applicant wishes to house 50 residents in the three dwellings at the facility. Thirty -eight residents are proposed for a single parcel. This is a high level of population density. Permitting the facility to remain in its current location in the R -2 District at the applicant's proposed population level would undermine the zoning program's basic purpose of grouping uses of similar densities in the same zoning districts. At staffs proposed population level. However, with a reduced resident population, staff feels that granting the accommodation with appropriate conditions would not undermine .the basic purpose of this portion of the City's zoning program. Requiring two units to revert to Single Housekeeping Unit use, and allowing a maximum of 12 residents plus one resident manager in the remaining dwelling unit (preferably one of the large duplex dwelling units) is likely to bring the population of all three dwelling units into a medium - density range consistent with the R -2 zoning standards in place for this area of Newport Heights. Basic purpose of use permit requirement: Use permits are required for use classifications typically having operating characteristics that require special consideration, so that they may be located and operated compatibly with uses on adjoining properties and in the surrounding area. NBMC Section 20.91A.010 sets forth the purposes of requiring use permits in residential districts. The first stated purpose is: ...to promote the public health, safety, and welfare and to implement the goals and policies of the Newport Beach General Plan by ensuring that conditional uses in residential, neighborhoods do not change the character of such neighborhoods as primarily residential communities. The second purpose is: ... to protect and implement the recovery and residential integration of the disabled, including those receiving treatment and counseling in connection with dependency recovery. In doing so, the City seeks to avoid the overconcentration of residential care facilities so that such facilities are reasonably dispersed throughout the community and are not congregated or over - concentrated in any particular area so as to Institutionalize that area. Even if the facility is exempted from Section 20.10.020' and permitted to remain in its current location without a use permit, it is not exempt from reasonable controls the City might place on It. NBMC Section 20.98.015 states that the Hearing Officer shall approve, conditionally approve or deny applications for reasonable accommodation. The City can impose the same conditions through an accommodation that it could PS-RA 00089 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 32 impose under a use permit. A reasonable accommodation with appropriate conditions can mitigate adverse secondary impacts such as noise, overcrowding, parking and traffic impacts, excessive second -hand smoke, and unruly behavior by residents of applicant's facility to the. detriment of neighbors. Furthermore, unlike a use permit, a reasonable accommodation is riot a land use entitlement that runs with the land to future owners and facility operators. A reasonable accommodation is a disability- related exemption that is specific to the housing provider or disabled individual(s) to whom it Is granted, as well as specific to the dwelling. If this applicant decided to cease ' providing disabled housing at this location, the accommodation would no longer be necessary and would cease as well Staff is aware there can be situations where the reasonable accommodation mandates of fair housing laws require the Hearing Officer to grant an exemption from the use permit requirement. However, these situations should be limited to those in which the applicant can demonstrate that the accommodation would not undermine the basic purposes of the use permit requirement. Staff believes that the clearest way for an applicant to demonstrate this Is for the applicant to show that: (a) the applicant's facility can meet all standards required for issuance of a use permit, including the operational standards of NBMC Section 20.91A.050, and the required findings of NBMC Sections 20.91A.060 and 20.91.035(A); Qr (b) If all standards required for issuance of a use permit can not be met, or required findings made, the applicant can demonstrate that in its particular case the inability to meet a specific standard or make a required finding does not undermine either of the two basic purposes of the use permit requirement; and (c) the applicant is willing to meet conditions that would have been required under a use permit to ensure that the character of the surrounding neighborhood is not changed, and that residential care facilities are reasonable dispersed throughout the community and are not congregated or overconcentrated In any particular area so as to institutionalize that area. As to current residents: The applicant did not report the average length of resident stay. However, other sober living facilities have reported that their resident stays range from 45 days to 180 days, with an average stay of 90 days. Assuming the applicant's facility has similar lengths of resident stays, allowing current residents to remain at the facility for the remainder of their stay will not impose an undue financial or administrative burden on the City. As to pr9spective residents: At the applicant's proposed population level, staff does not believe a reasonable accommodation with conditions similar to those imposed through a use permit could ensure that the primarily residential character of this neighborhood is not changed. It also does not believe that, even with conditions, it could protect and Implement the PS -RA 00090 Reasonable Accommodation No. 2008-001 March 25, 2009 Page 33 recovery and residential integration of the disabled and avoid an overconcentration of residential care facilities in the neighborhood. With 50 people in three adjacent buildings, the facilities are not reasonably dispersed throughout the community, and are concentrated in a specific area to a degree that arguably institutionalizes that area. On the east and west side of this block of Clay Street, there are only nine parcels of land. By converting two of them to residential care facility use, the applicant has turned nearly a quarter of the block into a residential care facility. Staff has. difficutty making a finding that continued maintenance of the use would not create an overconcentration of residential care uses in the vicinity. Per NBMC Section 20.91A.060(b) and (Q)(3), when the Hearing Officer'is analyzing whether granting a use permit will result in an overconcentration of residential care uses in the vicinity, he or she shall consider, as appropriate, whether it would be appropriate to apply the APA standard of one or two such uses per block. Staff recognizes that the applicant is not applying for a use permit, but to justify waiving the use permit requirement, staff must demonstrate that the purpose which the use permit requirement was meant to achieve Is not undermined by waiving the requirement. One of the stated purposes of the use permit requirement is to prevent overconcentration and institutionalization of a neighborhood. In addition, with 50 resident clients in three adjacent buildings, the findings required by NBMC Section 20.91A.060 could not be made. ..If staff accepts applicant's representations that all rooms converted to bedroom use meet all California Building Code requirements for bedrooms for this type of occupancy, 12 residents at 3309 Clay, 18 at 492 % Orange, and 20 at 492 Orange meet the requirements of NBMC 20.91A_050(C)(1) (maximum population of two residents per bedroom plus one). If any of the converted bedrooms are not legal for that purpose, the occupancy standards are not met. Furthermore, staff believes that rooms designated as offices, game rooms, etc. on the plans that the City approved should be returned to those uses. Parking presents an even bigger problem. The Zoning Code requires that a residential care facility provide one on -site parking space for every three residential care beds. With 50 residents, 17 on -site parking spades are required. ApplicarWs properties provide six on -site parking spaces. Even If not all residents have cars, with a population of 50 people on two parcels that provide only sbc on -site parking spaces, it Is difficult to argue that the accommodation would not result In insufficient parking. At staffs proposed population level. staff believes that a reasonable accommodation with conditions similar to those imposed through a use permit could ensure that the primarily residential character of this neighborhood is not changed. It also believes that by reducing the number of resident clients to 12, and the number of units used for recovery facility purposes to one, it can protect and Implement the recovery and residential integration of the disabled and avoid an overconcentration of residential care facilities in the neighborhood. PS -RA 00091 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 34 In a six - bedroom facility, with 12 residents and one resident manager, the bed count would be within the operational standards of NBMC Section 20.91A.050(Cx2),. which requires that a use permit allow no more than two residents per bedroom plus one additional resident. However, even with only 13 occupants, none of the buildings have on -site parking that conform to the NBMC's on -sfte parking requirements of one parking space for every three beds. With 13 occupants, five on -site parking spaces per unit are required; each dwelling unit has only two on -site spaces that conform to the City's parking requirements. The applicant has stated that- not all of the residents have personal vehicles during their stay at the facility. If the Hearing Officer grants the accommodation, staff recommends including a condition that prohibits more than six residents from having personal vehicles while residing at the facility, and that those residents that are permitted personal vehicles continue to park on Old Newport Road and commercial areas of Orange Ave. if they do not park in the garage spaces provided by the unit In which they live. Even if parking and occupancy levels are appropriately addressed, staff would have difficulty making all the findings required for issuance of a use permit for nonconforming use In a residential zone. This is because one of the required findings is that all operational standards of NBMC Section 20.91A.050 are met, and the applicant might not be able to meet the standard described in Section 20.91A.050(Cx4). This subsection establishes a requirement that all persons with an ownership or leasehold Interest in the facility, or who will participate in the operation of the facility, shall not have a demonstrated pattern or practice of operating similar facilities in violation of state or local law. In 2007, the dwelling at 3309 Clay Street housed either sober living residents or a prohibited Group Residential use in a dwelling with unpermlited construction. The dwelling at 3309 Clay Street appeared to be set up for use by more than six residents in 2007, in violation of the NBMC's requirement at that time that unlicensed facilities with more than six residents must apply for and receive a Federal Exception Permit (FEP) to establish such uses. The use at 492 Orange Ave. was established during 2007 the moratorium. Also In 2007, Mark Manderson, Sr.,. made false statements to both City and state code enforcement offlcers and inspectors. In addition, Mark Manderson, Sr., has a long -standing history of establishing illegal units in other areas of the city. The City regards illegal dwelling units as one form of prohibited Group Residential or boarding house use, as it results in groups not living as a single housekeeping unit in what was originally intended to be a single dwelling unit Since this is a reasonable accommodation application rather than a use permit application, however, the applicant has an opportunity to demonstrate why the fact that one of the individuals affiliated with the facility made material misstatements of fad to City and state officials. does not undermine the basic purpose that the use permit requirement was put in place to achieve. The applicant will need to make a similar showing to show why Mr. Manderson's past practices of housing tenants in buildings with illegal construction and illegal units, as well as Ignoring the City's moratorium ordinance, does not undermine the basic purpose of the use permit requirement. PS -RA 00092 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 35 If the applicant can make a compelling argument that demonstrates the purposes of the use permit requirement will not be undermined by Mr. Manderson's past business practices, staff believes conditions could be applied In several areas that would allow the accommodation to be granted consistent with the basic purposes of NBMC Sections 20.10.010, 20.10.020, and Chapter 20.91A. They include: 1. A bed cap of no more than 12 resident clients in one dwelling unit, plus one on- site resident manager; 2. Maintaining a weeknight curfew of 10:00 p.m. for all residents; 3. Maintaining a weekend curfew 11:00 p.m. for all residents; 4. Establishing quiet hours of 10:00 p.m. to 8:00 a.m ;; 5. Establishing quiet hours for television use from 10:00 p.m. to 8:00 a.m.; 6. Requiring compliance with the standards of NMBC Section 20.91A.050(A), relating to secondhand smoke detectable from off the parcel upon which the facility is located; 7. Providing the names of all persons and entities with an ownership or leasehold interest in the facility; (Currently, other than establishing one dwelling unit of the facility during the 2007 moratorium and the ongoing building code violation, staff has no evidence suggesting that any known person affiliated with this facility has demonstrated a pattern or practice of operating similar residential care facilities in violation of State or local law.) 8. Providing a list of any similar facilities in the State of California owned or operated by the facility operator within the past five years, and certifying under penalty of perjury that none -of such facilities have been found by State or local authorities to be operating in violation of State or local law; 9. Compliance with all applicable state and local laws, including California Building Code requirements for this occupancy type; 10. No more than stx residents shall have personal vehicles at the facility or the surrounding neighborhood while residing at the facility. Those residents that are permitted personal vehicles shall park on Old Newport Road and commercial areas of Orange Ave. if they do not park in the garage spaces provided by the unit in which they live; 11. Residential care facility uses and services limited to a single dwelling unit; 12.All other dwellings returned to use as residences for Single Housekeeping Units, as that term is defined in NBMC 20.03.030. 13-Because of past practices of the applicant, annual inspection to confirm use and occupancy levels by City staff is required. Essentially, these conditions would require that the facility comply with the development and operational standards required of similar facilitles' receiving a use permit under NBMC Chapter 20.91A. Staff believes that with these conditions (and an appropriate explanation of why the past illegal practices of one person affiliated with management and operation of the facility do not undermine the purpose of the use permit requirement,) the findings which NMBC Section 20.91A.060 requires for issuance of a use permit could be made with regard to this facility, and that the basic purpose of the use permit requirement would therefore not be undermined. PS -RA 00093 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 36 Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the City's zoning program: A. Whether the requested accommodation would fundamentally alter the character of the neighborhood. At the population levels Rroaosed by the applicant: icant: As discussed above, staff feels that transforming nearly one - quarter of the block that fronts Clay Street into a large residential care facility with up to 50 residents would fundamentally alter the character of the neighborhood. At the population levels _= osed by staff, the requested accommodation would permit a maximum of 12 Individuals plus an on -site resident manager to live in a relatively spacious dwelling in a neighborhood surrounded by single housekeeping units. It does not appear that allowing the facility to serve 12 resident clients in a single dwelling unit with appropriate conditions and supervision would fundamentally alter the character of the surrounding neighborhood. B. Whether the accommodation would result in a substantial increase in traffic or insufflcfent parking. Parking -- As described above, the dwelling addressed as 492 Orange Avenue includes an attached tandem two -car garage, and the dwelling addressed as 492 %s Orange Avenue includes a two -car garage (side -by -side parking spaces). The parcel located at 3309 Clay Street is developed with a single - family dwelling with an attached tandem two -car garage. The on -site parking provided at each building is consistent with the Zoning Code requirement for single - family and two - family residential development. However, the .Zoning Code requires that a residential care facility provide one on -site parking space for every three residential care beds. At ap licartfs proposed population level: As discussed above, with 50 residents, 17 on -site parking spaces are required, and the facility provides only six. Even if not all residents have cars,. a substantial increase in insufficient parking will result. The off - street parking requirements in R -2 . zoning districts were not intended to accommodate this density of use, and the on- street parking was not designed to accommodate the degree of overflow parking that would result from a use of this density. At stairs proposed population level: With 13 residents (resident clients plus manager), five parking spaces are required.. None of the applicant's properties provide more than two on -site parking spaces, which would provide the on -site parking required by the Zoning Code for only six residents. if the Hearing Officer grants the accommodation, staff recommends including a condition that prohibits PS-RA 00094 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 37 more than six residents from having personal vehicles while residing at the facility, and that those six residents continue to park on Old Newport Road and commercial areas of Orange Ave. if they do not park in the garage spaces. provided by the unit in which they live. Traffic and Generated Trips — The Institute of Transportation Engineers (ITE) establishes and publishes standards for trip generation rates based on the use classification of a site. For a single - family home, the standard trip rate is based on 9.57 average daily trips per dwelling. For a duplex, the standard trip rate is based on 6.72 average daily trips per dwelling unit. Trip rates for residential care facilities are based on 2.74 average daily trips per each occupied bed. At applicants proposed population level: Based on these standards, a 50 -bed residential care facility would generate approximately 137 average daily trips. A duplex would generate approximately 13.44 average daily trips. A single- family home would generate approximately 9.57 average daily trips per dwelling. If occupied by single housekeeping units, the ITE formula predicts a total of 23.01 average daily trips for one single - family dwelling and the two units of the duplex. The evidence shows this facility will generate trips substantially in excess of average daily trips of the single housekeeping units in surrounding duplexes and single- family homes. At staff's proposed population level: Based on these standards, a 13-bed residential care facility (residents + staff) would generate approximately 35.62 average daily trips. A single unit in a duplex would generate approximately 6.72 average daily trips. A single- family home would generate approximately 9.57 average daily .trips. This suggests that the facility will still generate trips substantially in excess of average daily trips as the single housekeeping units in surrounding duplexes and single - family homes. However, if the applicant limits the number of personal vehicles permitted at the facility to the six which the Zoning Code permits, the number of trips generated are more likely to be In the 16.44 average daily trips range, and the resulbhg impacts on traffic would not be considered substantial. 5. Finding: That the requested accommodation will not, under the specific facts of the case, result in a direct threat to the health or safety of other indhriduais or substantial physical damage to the property of others. This finding can be made. A request for reasonable accommodation may be denied If granting it would pose "a direct threat to the health or safety of other individuals or result in substantial physical damage to the property of otherg." See 42 U.S.C. § 3604(f)(9). This is a very limited exception and can only be used when, based on the specific facts of a situation, a requested accommodation results in a significant and particularized threat. Federal cases interpreting this exception in the FHAA Indicate that requested accommodations cannot be denied due to generalized fears of the risks posed by disabled persons. PS -RA 00095 Reasonable Accommodation No. 2008-001 March 25, 2009 Page 38 In accordance with the provisions of Section 20.98.025 of the NBMC, all five findings must be made in order for the Hearing Officer to approve a request for Reasonable Accommodation. As to current residents: All five required findings can be made. The applicant did not report the average length of resident stay. However, other sober living facilities have reported that their resident stays range from 45 days to 180 days, with an average stay of 90 days. Staff recommends granting an accommodation that permits all current residents to reside at the facility for the remaining duration of their stay, to a maximum of six months. Staff recommends that as current residents complete their stay and move out, facility operations be consolidated into a single dwelling unit with 12 resident clients and one resident manager. This consolidation should occur as soon as possible, within a maximum period of six months from the day the resolution of approval is adopted by the Hearing Officer. As to prospective residents: At the applicant's proposed population level: Staff cannot make all five required findings, and therefore cannot recommend that the Hearing Officer grant Request No. Five at the applicants proposed population level. At staffs proposed pooulation level: Staff believes that with conditions that include limiting the facility population to 12 residents and one resident manager with. only six . personal vehicles, all five findings could possibly be made for Request No. 5 However, as of the date this report was prepared, the applicant has not had a chance to submit an explanation of why the applicant's inability to meet one of the required operational standards does not undermine the basic purpose of the use permit requirement, and has not had a chance to study its operations and consider which of the units is best suited for the remaining residential care use proposed by staff. If the applicant desires a continuance to prepare this information, staff recommends that the Hearing Officer continue the request for accommodation from the restrictions of NBMC Section 20.10.020. This will allow the applicant to provide the information required for a final staff recommendation, and staff to analyze the information. Environmental Revlew This activity has been determined to be categorically exempt under the requirements of the California Environmental Quality Act 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 potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines. it can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. PS-RA 00096 Reasonable Accommodation No. 2008 -001 March 25, 2009 Page 39 Public Notice Notice of this heating was published in the Daily Pilot and the Orange County Register, mailed to property owners and occupants within 300 feet of the property and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting which was posted at City Hall and on the City webske. Prepared by: �� Z Catherine Wolcott Deputy City Attorney EXHIBITS Submitted by: Dave Ki rx7' mix Assistant City Manager 1. Email with attachment from Mark Manderson, Sr. dated February 23, 2007 2. Letter from ADP Complaint Investigator Diane Plaza dated May 31, 2007 with sample tenant lease provided by Mark Manderson, Sr. 3. Reasonable Accommodation Application submitted September 24, 2008. 4. Amended Reasonable Accommodation Request submitted March 10, 2009 5. Second Amended Reasonable Accommodation Request submitted March 13, 2009 e: Staff Request for Additional Information dated March 17, 2009 7. Supplemental information Submitted by Applicant 8. Floor Plan — 3309 Clay Street 9. Floor Plan — 492 Orange Avenue 10. Floor Plan — 492'A Orange Avenue 11. House Rules ' PS -RA 00097 Exhibit No. 1 Email with attachment from Mark Manderson, Sr. dated February 23, 2007 PS -RA 00098 Page 1 of 1 f Spence, Cass From: Mark Manderson (markmendy544yahoo com] Sent Frklay, February 23, 2007 7;45 AM To: Spenco'casa Subject lrrfonrwd€ I Leiter Attachments: 3008055204dnbmwdonal ie#sr doc Morning Cass, here is the letter with a few additions, anything else just let me know. Thanks again. Mark Sucker -punch span with award-winning protwdm Try the fm Yahool Mail Beta 07 3MM' PS -RA 00099 Informational Letter This letter's intent is to inform you of the properties 492, 494, and 496 Orange located on the comer of Orange and Clay Street in Newport Beach. It has been brought to our attention that many refer to these rentals as a recovery residence when in fad they are merely rentals. We are not a licensed recovery house, we don't offer any form of recovery, and there are absolutely no "meetings" happening on our properties. We take pride in providing a safe and luxurious place to live for any person who is looking to reside in a custom house in Newport Beach. We have found over the years that by not allowing any drugs, alcohol, pets, or even smoking in our properties ensures that the properties retain their beautiful look while providing an excellent plow to live. We never have noise complaints as our residents are your working class Americans who understand these simple agreements we ask and f other agree to leave if alcohol or any forms of drugs are found. We also care for our neighbors and do not allow our residents to park on Clay Street or loiter in front of our buildings. In addition to this, most residents use only bicycles for transportation as a way to cut down on noise and pollution. For those who choose such lifestyles are happy to abide by these regulations as it provides a much more enjoyable life for these people. We want to assure you that we continue to take pride in our custom houses and enjoy providing a safe, quiet place to live for those who are considerate to others. We also, believe in giving back to the environment and have- recently installed solar panels to run these houses. PS-RA 00100 Exhibit No. 2 Letter from ADP Complaint Investigator dated May 31, 2007 with sample tenant lease provided by Mark Manderson, Sr. PS -RA 00101 Jul 02 07 IZ21p Robert Conner DEPAWMENT OF ALCOHOL. AND DRUG PROGRAMS UN K SWEET SACRAMENTO.CA ON44037 .. TOE (919) 449.1942 . (916) 9228911. May 31, 2007 Mr. Mark Manderson, Property Manager Pacific Shores Recovery 177 Riverside Avenue 71:212 Newport Beach, California 92663 Dear Mr. Manderson: 949 722 1135 P.1 On May 3, 2007,1 visited your facility located at 492 Orange Avenue, Newport Beach, California 92683 and 3309 Clay Street, Newport Bee California 92683, to determine whether or not it is subject to licensure under the Catiloinla Health and Safety Code, and California Code of Regulations, Title 9. After a review of the information obtained, the Program Compliance Branch has determined that this faculty is not subject to licensure at this time. This determination is based on evidence which shows that you are not currently providing any of the following services as defined in the California Code of Regulations, Title 9, Section 10501(a)(5): datmofioatlon, group sessions, individual sessions, educational sessions, and recovery or. treatment planning. Health and Safety Code Section 11834.30 prohibits operating, establishing, managing, ,coriducting, or maintaining an alcoholism or drug abuse recovery or treatment facility in California without first obtaining 'a current, valid license. Therefore, please be advised Viet if you wish to provide any of the above- defined services in the future, you must submit an application to our Branch prior to initiating M6 service(s). :Thank you for your cooperation in this matter.. If you have any questions, please. sontactme et'(916) 323 -1806 or email me at dplazaCadp.state.ca.us. :. Sincerely, -1 DIANE PLAZA Complaint Investigator Program Compliance Branch Licensing and Certification Division ' pclroukpuul7TafaYrC >u,wro�uswaEneaar . . ' Faranagy savNg Nps, � Ow fltat YourPOr+NwebaiN at • llld�'INW,IR11�ryewpfMlK.q.90O PS -RA 00102 - 05/31/2007 09:02 9163244505 ALCOHOL g DRUG PROM PACE 02 Aft 18 0710.36a Robert Comer go 642 3480 P.2 3 r60 A.W"moet to stay to my houat Iuudcrsaudllut Oka notaa xmdefrommyoftftwe �I��•nn sow 11 1 11 d tit ifpaymtnt Is late. thine Re wM he chupd of 1091. low agtathat rm drop orsloohol ore diumd n atytbeoa 0te property. I agree to comply with the !Glowing tuba hridakt. 1 agree b allow ny bok>nght9a to be peaked up and how if I ma nosey. as hevs adhlq . ardt IMWtqo m. Iages 10Mbmlttoanima test aoytMadtflbmtdPosidve ,tflasher.arestopay$25 the lbr tbetsat and to lasrethe ptsdses tmudiately. laidate. iagtefedomydai�ohorotadtogWnq '(anddaoommunih'imomAt�uP.a� r *0 betdruota sad kepu+lataat aII time.. L enlaapad dmt pzkbg an Chystvel iI mark 1a a WS Ow Lod kno wM read& ia a talisowbnt Fm Time am so wwpora *Mowed an the pteadIM >�4. Laareatogtveatwowedrttodoaiawr[ daginadaforrai 'aecmiSP�baabtltkmbe m8mk& Upon Oft my 2 week soft I will he given eohe*m Nstmd wMsdup as appobammlio A ohhyeo%M LNIM001tasIsOva, lmtdaaam ga dmybdooganwglbohddPox30depagdd= RoentOUs am wwoatad to adhely par-1 4- to to the local sober atmmmt$y in the spot ofbea ft and maeartl nvparL Law boos, dier4d" hrltavior, or py outdusht: sae orpairiog or imaseatontldndasdds 'wriwaveft qdft Roomed No dks omeged timolatdhtg orbmr*wb* mmoy, com cloddas Jawoft, da.lo/flamad(errOOMJAMtaa, 7hlsi eawodtb*houaeaddIsgmffidimaelhe sfAtbwjo6. Roommate ateeawmvpdtowAvdy seek ompbymwxdario m mdwwk4homyanddlxotrwd 1101 ft OW, 40010109 to ar othawim lrolsdeg$uemehos dmhtq wookddya. titb, dalrk. xotaro0d {tieblti7V9ihYirgaraa)aiupati AHkltaGaotmo $aaak#e9atemEtaeroauppiled. No smonbdhalb.Nhmrgof xd- Utbehwn No gtb albr9gm CJ�day— ThmaLy)aud aflet l 1p m Pddgl9ial�4p Pkeae amodCaliilg4u aadu wig ymi see thstthay are ooe befog fired. ,namau aanaoraea: _. llfadltadlolt PS -RA 05/31/2007 09:02 9163244505 ALCOFEL Y. "i Fl,& It May 1S 07 10.-A Robed Conner 949 642 3460 p.3 To all rom mam: The following is a lbat of thlags that need a little attention. 1) CHORES: For people who will not do their come, you may be asked to leave — for the night. Ini. 2) C[CWkSTTE BUTTS: Any parsoa tossit% cigarette butts aayaime oa the prop" other clan an asbasy. first of oag is two weeks picking up butts around the ptopexty. Secoad time you may be asked to leave. _., [rutials 3) STEALING, This is a zero tolcnmc issue. Any pam caught M11 be asked to leaves. — lawals 4) PEiL ONAL BELONGINGS: Belongings will be hold in atatagc for 30 days mardnmm ead Urea will be gives io Ore Good w-m. Any belaaoe due must be paid before entcibg storage to rattiavo ftemm. __ jtdtials 5) To awW any eontbsioa two weeks notice must be given is writing to rec iva ream of your deposit. AbvAoaing your room cad left' for otbets to peek up and ¢kart will result in a "0 deduction from your deposit:. laitiais These ubp are mean to imptcve our ommmunity. 7hmmlt you Nmm _ Room: _ - - -- -- Daae In: 2 weeks deposit �- • f Rom delAlh7=It1av mV- ^ .14edtlin�gs: PS -RA 00104 Exhibit No. 3 Reasonable Accommodation Application submitted September 24, 2008 PS -RA 00105 RECEM D BY CITY OF NEWPORT BEACH P AMNNG DEPARNEW Supplemental Information SEP 24 2008 for Reasonable Accommodation Cliff OF NEWPORT BEACH Planning Department Application Number 3300 Newport Boulevard PA2008 -181 for RA2009.001 Newport Beach, California 92658-8915 492 & 492 % ORANGE AvE rwo 3309 CLAY Sr (949) 644 -3200 Pacific Shores Properties, LLC To aid staff in determining that the necessary Endings can be made in this particular case NO set forth in Chapter 20-N of the Municipal Code, please answer the following questions with regard to your request (Please attach on separate sheets, if necessary)- Pacific Shores PrpsrdM LLc Name of Applicant Patafie Shores If provider of housing, name of facility, inchxhng legal name of corporation 033 s M Riverside Avenue. Newport g eb, Califo i 926�f (Mailing Address of Applicant) (Citymate) 219--.574-2510 949 -722 -1133 (Tdephone) (Fax number) PPaSilic Shores00@vahoo com (E-Mad address) (ip) 492'% Oransa Avenue_ 492 Ornaae Avemre. 3309 Clay Street (Su ed Property Address) Assessor's Parcel Number (APIA 1. Is this application being submitted by a person with a disability, that person's representative, or a developer or provider of housing for individuals with a disability? PacMe Shores Properties, LLC is a provider of housing to persons in recovery from aimbolhm and substance abuse. 2. Dos the applicant, or individuai(s) on whose behalf the application is being matte, have Physical or mental impairments that substantially limit one or more of such person's major M activities? If so, please state the impaurnent(s) and provide doctmrcotation of such impainncot(s) All residents of housing provided by Pacific Shores Propertles, LLC.are persons in recovery from alcoholism and substance. Most residents of Pacific Shores an referred r FT-A rage 1 *f4 PS-RA 00106 492 & 492 %ORANGE AVE AND 33D9 CLAY bT Pacifir- rres Properties. LLC after completing a residential substance program. Those individuals who are not referred directly from a residential treatment program have either completed a treatment program, or have been in recovery from alcoholism and substance abuse after completing a substance abuse treatment program or a detoxification program, or have been sober for a sustained period of time but are in need of safe and sober housing because they cannot live independently without fear of relapse. 3. From which specific Zoning Code provisions, policies or practices are you seeking an exception or modification? Pacific Shores is requesting the City of Newport Beach treat its residents as a single housekeeping unit as defined in Section 20.03 of the Newport Beach Municipal Code. 4. Please explain why the specific meptm or modification requested is necessary to provide one or mare individuals with a disability an equal opportunity to use and enjoy the residence. Pie= provide documentation, if any, to support your explanation. As individuals In recovery from alcoholism and substance abuse present and prospective residents of Pacific Shores seem to live in a family type environment which would provide them with emotional and therapeutic support daring recovery process. The residents are individuals who cannot live independently without the Pear or threat of relapse into active alcoholism and substance abuse. The requested accommodation is necessary to achieve an opportunity for the disabled residents of Pacific Shores to live in a setting which ts a self- paced recovery option and it gives them safficiest time for personal psychological growth while avoiding the use of alcohol and other substances. Absent the sobriety setting, the individual residents of Pacific Shores would not be able to live in a supportive environment in a residential area, let alone a single - family residential area. Residency in Pacific Shores provides a medal and often times essential public service by providing a safe and sober living envimument, so that its residents can be reintegrated in the world and workforce. A request for accommodation to definition of "family" is necessary for the present and future residents of Pacific Shores "to enjoy the housing of his or her choirs ". The residents of Pacific Shores arc not " transient" by nature and function and Internet with each other much in the same way as "the functional equivalent of a traditional family." By living together as the "functional equivalent of a traditional family" and by living with other persons who are in recovery, the residents of Pacific Shores never Imve to face an alcoholics or addicts deadliest essay; loneliness. 5. Please explain why the mquened accommodation will aflirmaUvely enhance the quality of M of the individual with a disability. Please provide documentation, if any, to support your explanation. As individuals is recovery from alcoholism and substance abase present and prospeelive residents of Pacific Shores seek to live in a fam7y type environment which would provide them with emotional and therapeutic support during recovery process. The residents are individuals who cannot live independently without the fear or threat of relapse into active alcoholism and substance abase. The requested accommodation is necessary to achieve an opportunity for the disabled residents of Pacific Shorts to live to a setting which is a selP- paced recovery option and it gives them sufficient time for personal psychological growth while avoiding the on of alcohol and other substances. Absent the sobriety setting, the Ps®e 2 of 4 PS -RA 00107 492 & 492'h ORANGE AvE AND 3309 CLAY ST Pac''%Shores Properties, LLC individual residents of Pacific Shores would not be able to live in a supportive environment in a residential area, let alone a single-family residential area. Residency In Pacific Shores provides a useful and often times essential public service by providing a safe and sober [wing environment, so that its residents can be reintegrated in the world and worworce. A request for accommodation to definition of " famfiy" is necessary for the present and future residents of Pacific Shores "to enjoy the horning of his or her choice"'. The residents of Pacific Shores are not "transiea" by nature and function and intend with each other much in the same way as "the funcdonal equivalent of a traditional family." By living together as the "functional equivalent of a traditional family" and by living with other persons who are In recovery, the residents of Pacific Shores never have to face an alcoholics or addicts deadliest enemy: loneliness. 6. PIease explain how the individual with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation? Please provide documentation, if any, to support your explanation. As individuals in recovery from alcoholism and substance abuse present and prospective residents of Pacific Shona seek to live In a family type environment which would provide them with emotional and therapeutic support during recovery process. The residents are individuals who cannot live Independently without the fear or threat of rebpse into active alcoholism and substance abuse. The requested accommodation is necessary to achieve an Opportunity for the disabled residents of Pacific Shores to live in a setting which is a UK- paced recovery option and it gives them suiflcieat time for personal psychological growth while avoiding the use of alcohol and other substances. Absent the sobriety setting, the individual residents of Pacific Shores would not be abbe to live in a supportive environment in a residential area, let alone a single•fi illy residential area. Residency In Pacific Sbores provides a usefid and often times essential public service by providing a safe and sober living environment, so that Its residents can be reintegrated in the world and workforce. A request for accommodation to deflnition of " famfiy" is necessary for the present and lfature residents of Pacific Shores "to enjoy the housing of hh; or ben choice". The residents of Pacific Shores are not "transient" by ratans and function and iaterad with each other mach in the same way as "the functional equivalent of a traditional family." By living together as the "funetionad equivalent of a traditional family" and by living with other person who are In recovery, the residents of Pacific Shores never have to face an alcoholics or addicts deadliest enemy. bne@ines& 7. If the applicant is a developer or provider of housing for individuals with a disability, please espladm why the requested accommodation is necessary to make your facility economically viable in tight of the relevant market and market participants. Please provide documentation, if any, to support your explanation. Pacific Shores objects to this requeek An apptienat for a request for a reasonable accommodation ls not required to compare or make an assessment of economic vbhbility in tight of the relevant market and market participants, Accordingly, Padf c Shores is not required to obtain economic data concerning the relevant market and market participants in order for this request to be considered and granted. Paws of4 PS-RA 00108 492 & 492''/2 ORANGE AVE AND 3309 CLAY ST Pao—'�hores Properties, LLC ti S. If the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation is necessary for your facility to provide individuals with a disability an equal opportunity to live in a residential setting taking into consideration the existing supply of facilities of a similar nature and operation in the community. Please provide docamrentadon, if any, to support your explau ation Pacific Shores objects to this request. An applicant for a reasonable accommodation is not regnbvd to ass whether a request for a reasonable accommodation is necessary to provide persons with disabilities an equal opportunity to live in a residential setting by providing evidence regarding the existing supply of facilities of a similar nature and operation in the community. Without waiving this objection, we the Answer to Number 4 9. Please add any other information that may be helpful to the applicant to enable the City to determine whether the findings set forth in Chapter 20.98 can be made (Use additional pages if necessary.) Pacific Shona has been the provider of housing for recovering alcoholics and substance abusers since 2000. PAp 4 of4 PS-RA 00109 CITY OF NEWPORT BEACH 3 ,.ono Supplemental Informatiou for Reasonable Accommodation for Providers of Housing Plarming Department Applicatior hh-mh" 3300 Newport Boulevard PA2008 -181 for RA2008 -001 Newport Beach, California 92658 -8915 492 & 492'6 ORANGE AVE AND 3309 CLAY ST (949) 644 -32M Pacific Shores Properties, LLC If you are a provider of developer or provider of housing for individuals with a dlsabgity and are seeking a reasonable accOnNnodation, plane provide the folkmNing information with regard to your request If you have already submitted this information to the City in conjunction with a different application, you can submit copies of the fnfomm*m previously provided A Your Film's Currant Uses. Do you or your firm (or any entity or person affiliate! WM you or your firm) currentlyppereft manage, or own other group residential uses in Newport Beach? ■ -T If yes, cite address(es) of bdky(km) (attach more pages if neressaryg EXAMPLE_ 1234 Main Street Newmt Beach Unlicensed '$ra m LMW 7 Site Address Type of Use Bed CaPaY Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity SIB Address Capacity Type of Use Bed Sae Address Capacity Typo or use Bed PqP 1 Of2 PS-RA 00110 rr vvo +aoI lur KAzuutl -uul 492 & 492 A ORANGE AVE AND 3309 CLAY ST Pacific Shores Properties, LLC B. Other Similar Uses. What uses, not operated by or affiliated with you or Your firm are of a similar type as your proposed use here In Newport Beau? Please cite address(es) of facifity(les) (attach more pages If necessary): MMME- 1234 Main Street. Newport Beach UrdOensed-gift LMW 7 Site Address Type of Use Bed qty Site Address Type of Use Bed Capacity Sits Address Type of Use Bed Capacity Site Address Type of Use _ Bed capacity Site Address Type of Use Bed Capacity Sits Address Type of Use Bpd Site Address Type of Use Bed Capacity Site Address Type of Use Bed Capacity Site Address Type of Use Bed caps* Site Address Type Of use Bed Capacity Site Address Type of Use Bed j Page 2 of 2 PS-RA 00111 Exhibit No. 4 Amended Reasonable Accommodation Request submitted March 10, 2009 PS-RA 00112 Smw G. POUN, ESQ. AnormyArlaw March 10, 2009 �It i kelgtiijjj t' i u nA T. Peter Pierce, Esquire Richards ! Watson I Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071 -1469 Dear Peter: 3034 Tenn" Sr. N.W. Wmamoron, D.C. 2OD15 TEL (202) 331-" FAX (202) 537 -2986 Saner RE: Pacific Shores Properties v. City of Newport Beach CV -08 -00457 NS (RNB) Please be advised that Pacific Shores Properties is hereby amending its request for a reasonable accommodation as follows: Pacific Shores Properties is requesting that the City of Newport Beach as a reasonable accommodation " grandfather" in the use of the dwellings located at 492 '/s Orange Avenue, 492 Orange Avenue, 3309ClayStreetasalegal nonconforming uses, consistent with R -2 zoning and that the City of Newport Beach will no longer classify or treat these dwellings as "Residential Can Facilities" asthattermisdefinedbytheNewport Beach ZoningCode CWUC y §20.05.010. Pacific Shores father requests as a reasonable accommodation that the City enforce all codes provisions, zoning, building, fire safety and any other applicable code to the use of 492 %a Orange Avenue, 492 Orange Avenue, 3309 Clay Street in the same manner that those codes are employed and enforced to single family and two family residential land uses located in the R -2 zone as those terns are defined by the N= §20.10.010. If you have any questions or need additional information, please call me at 202- 331 -5858. Si yours, n G. olin CC,. Christopher Brancart Mark Manderson Dare Mulhauser PS-RA 00113 Exhibit No. 5 Second Amended Reasonable Accommodation Request submitted March 13, 2009 PS -RA 00114 ftn N G. PouN, ESQ. Atlorney&Law March 13, 2009 Rnt alb 00 Eli u0 —FU 01' T. Peter Pierce, Esquire Richards I Watson I Gershon 355 South Grand Avenue; 40th Floor Los Angeles, California 90071 -1469 Dear Peter: 3034113ransau 9r. N.W. WANOW0q, D.C. 20015 Th (202) 331 -5848 FAX (202) 537,"6 SrorW2*ZMnMnva.W RE: Pacific Shores Properties v. City ofNewport Beach CV -08 -00457 JVS (RNB) Please be advised that Pacific Shores Properties is hereby amending its request for a reasonable accommodation as follows: Pacific Shores Properties is requesting as a reasonable accommodation that the City of Newport Beach waive the requiremern that "Residential Care Facilities" be located only in MFR with a "use permit". Newport Beach Zoning Code ( "NBZC") §20.10.020. To that end, Pacific Shores Properties is also requesting that the City ofNewpart Beach as a reasonable accommodation "grandfather" in the use of the dwellings located at 492 h Orange Avenue, 492 Orange Avenue, 3309 Clay Street as a legal nonconforming uses, consistent with R -2 zoning and that the City of Newport Beach will no longer classify or treat these dwellings as "Residential Care Faci lities"as that term is defined by the NBZC §20.05. 010. Pacific Shores further requests as a reasonable accommodation that the City enforce all codes provisions, zoning, building, fire safety arid any other applicable code to the use of 49214 Orange Avenue, 492 Orange Avenue, 3309 Clay Street in the same rommer that those codes are employed and eumfhrcedto single family and two family residential land uses located in the R-2 zone as those terms are defined by the NBZC, §20.10.010. if you have any questions or need additional information, please call me at 202- 331 -5858. F MI cc: Christopher Brancart Mark Manderson Dana Mulhauser PS =RA 00115 Exhibit No. 6 Staff Request for Additional Information dated March 17, 2009 PS -RA 00116 March 17, 2009 CITY OF NEWPORT BEACH PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 6443200; FAX (948) 6443229 Pacific Shores Properties, LLC 177 Riverside Avenue, #212 Newport Beach, CA 92663 To whom it may concern: Subject: REQUEST FOR ADDITIONAL INFORMATION Reasonable Accommodation No. 2008 -001 (PA 2008 -181) Properties located at 492 Orange Avenue, 492 % Orange Avenue and 3309 Clay Street This letter is regarding your Reasonable Accommodation application ,submittal for properties located at the above referenced addresses. Upon further review of the submitted application and subsequent correspondence, we have determined that additional Information is necessary in order to complete the analysis of this request per the provisions of Chapter 20.98 of the Newport Beach Municipal Code. Please provide the following darifications andfor additional information: Prooerty Owner Affidavit; Please provide written authorization from the legal owner of record authorizing filing of this application. 2. Affinnation of Resident(s) Disability Please provide a written statement, signed by the facility administrator or other credible individual, certifying under penalty of perjury that all residents of this facility meet the definition of disabled, as that term is defined by the federal and state housing laws. 3. Description of Use: In order to assist staff in understanding the accommodation request, please provide a brief-written description of the facility operation in each building, including: a. The maximum occupancy requested in each building; b. The number of bedrooms and beds within each building; c. The population in each building (male or female); d. Is onstte staffing provided or does a resident manager reside in each building? If so, how many staff members are on-site at any one time? e. The month and year the use was established in each building. f. How many parking spaces are provided on -site for each building? g. Are resident clients allowed to use their personal vehicles at any time while living at the facility, and if so, where the vehicles are parked? PS -RA 00117 Request for Additional Information Use Permit No. 2008 -214 Page 2 h. Does the facility provide transportation services for the clients? If so, where is the transportation van parked? To what location is transportation provided and how frequently is the transportation provided? L Are the house rules? If so, please provide a copy. j. What are the curfew and quiet hours? k. Who determines the population of each building? 1. What is the typical duration of stay of the clients residing in the facilities? m. Is the interaction between the residents of one building with another? Do residents of one building have access to the other buildings and/or building grounds? 4. Facility Administrator. Please provide the name and contact information for the facility administrator or manager. ff the facility provides 24/7 on -site staffing, please provide contact information for that staff person(s). 5. Site PlardFioor Plan: Please provide a site plan showing the location of the buildings on the lots, the location and number of on -site parking spaces. Please also provide a floor plan identifying t he number bedrooms and residents per bedroom. Should you have any questions regarding the requested clarifications or additional Information, please do not hesitate to contact me at (949) 644- 3236.. Sincerely, J neon B As Planner Cc: Ake Connor, property owner PS-RA 00118 Exhibit No. 7 Supplemental Information Submitted by Applicant PS -RA 00119 Brown, Janet From: Chris Brancart [cbrancadCbrancartcomj Sent: Thursday, March 19, 200910:49 AM To: "Pierce, T. Peter " <; Wolcott, Cathy; Brown, Janet Cc: "Manderson, Mark" <; "Poln, Steve" < Subject: Newport - Pacific Shores IRA information request Attachments: Pacific Shore's response to request for additional information (served).pdf Counsel, City Staff, Please find attached to this email information requested by the City in its March 17 letter. As indicated on the document, certain information has not been provided as unnecessary or duplicative based on my call with Mr. Pierece on March 18. Please contact Steve Polin, email above, if you have any questions regarding this email. Christopher Brancart Brancart & Brancart (650) 879-0141 (voice) (650) 879 -1103 (fax) CONFIDENTIALITY NOTICE: This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, please cal[ me. Thank you. 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CERTIFIED COPY PUBLIC HEARING ON PACIFIC SHORES PROPERTIES, LLC BEFORE THOMAS W. ALLEN, ESQ., HEARING OFFICER NEWPORT BEACH, CALIFORNIA WEDNESDAY, MARCH 25, 2009 PRECISE REPORTING SERVICE (714) 647 -9099 • (800) 647 -9099 -FAX (714) 5434614 www.precIsereportIng . com PS -RA 00172 O O D O O J D 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Public hearing was taken on behalf of the City of Newport Beach at 3300 Newport Boulevard, Newport Beach, California, beginning at 4:00 p.m., and ending at 6:05 p.m., on Wednesday, March 25, 2009, before LAURA A. MILLSAP, RPR, Certified Shorthand Reporter No. 9266. PRECISE REPORTING SERVICE (800) 647 -9099 2I PS -RA 00173 i 1 ® 2 3 4 i 5 6 7 i 8 9 a 10 i i i i i i 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 APPEARANCES: For The City of Newport Beach: RICHARDS, WATSON, GERSHON BY: PATRICK K. BOBKO, ESQ. 355 S. Grand Avenue, 40th Floor Los Angeles, CA 90071 -3101 (213) 626 -8484 CITY OF NEWPORT BEACH BY: CATHERING WOLCOTT, DEPUTY CITY ATTORNEY DAVE KIFF, Assistant City Manager :JANET BROWN, Associate Planner SHIRLEY OBORNY, Assistant City Clerk 3300 Newport Boulevard Newport Beach, CA 92658 -8915 (949) 644 -3002 For PACIFIC SHORES PROPERTIES, LLC: STEVEN G. POLIN ATTORNEY AT LAW 3034 Tennyson St., NW Washington, D.C. 20015 (202) 331 -5848 . PRECISE REPORTING SERVICE (800) 647 -9099 PS -RA 00174 LAWYER'S NOTES PS -RA 00175 lJ jl s 2 3 4 5 6 10 7 8 9 s 1 r 8 i 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 NEWPORT BEACH, CALIFORNIA; WEDNESDAY, MARCH 25, 2009 4:00 P.M. - 6:05 P.M. MR. ALLEN: All right. We'll open the hearing on the reasonable accommodation request made by Pacific Ishores. For starters, my name is Thomas Allen. I'm a Hearing Examiner that has been appointed by the City to conduct hearings on group recovery facilities. This first item today is Pacific Shores at Clay and Orange Avenue, up in the Heights, right off Newport Boulevard. Prior to going into that matter, we have a quick item of housekeeping. There's been a request by the staff to continue the Resolution of the approval of the 900 West Balboa Boulevard item from last meeting. And the request is to continue that until the next hearing. And is there any reason to be concerned that we're impairing anybody's rights or considerations in that respect by continuing this? MS. BROWN: No, sir, there's not. MR. ALLEN: Would it effect the time for an appeal to be filed? MS. BROWN: The time for appeal would begin PRECISE REPORTING SERVICE (800) 647 -9099 41 PS -RA 00176 E 1 2 3 4 i 5 i ri 1 8 9 . 10 11 s t S 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 upon adoption of the Resolution. MR. ALLEN: When is our next hearing? MR. KIFF: We're going to have to look at your calendar, Mr. Allen, and discuss that with you. And the next home -- next facility coming up is Balboa Recovery, potentially, at Kramer Center. And we need to pull those staff together. I don't think it's more than two weeks away. MR. ALLEN: Why don't we do this. If anybody expresses any concerns about getting it done sooner, then I would certainly be willing to come in and go through it. There's no public hearing requirement or anything of that sort to be concerned with, so if there is concern over getting it done more quickly, let me know, and I'll come in and-go through it and approve it. MR. KIFF: Yes, sir. MR. ALLEN: And so with that commitment, we'll Icontinue that item. And then back to the agenda, which is number two, the reasonable accommodation request for Pacific Shores. Staff report? MR. KIFF: Thank you, Mr. Allen. As we did with the previous reasonable accommodation hearings, this will be represented by three PRECISE REPORTING SERVICE (800) 647 -9099 42 PS -RA 00177 s 0 ! ! i l M 'r_: K, 4 5 6 7 11 12 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 of us. Myself, I'll do the quick background and speak the most briefly. And then Janet Brown, from our Planning Department, will speak more about the specific application, and then Cathy Wolcott, our Deputy District Attorney, will speak more about the reasonable accommodation requests specifically. So a reminder to the audience, this is a hearing on reasonable accommodation requests. And for the purpose of the hearing they are soon to be consolidated. There are five that have been requested by Pacific Shores Properties. As I just stated, we'll do a brief background on how the hearing works, then the application, then Ms. Wolcott will speak about the reasonable accommodation chapter in our Municipal Code, as well as presenting the specific request of Pacific Shores. Then the Applicant has an opportunity to stand up and speak before the Hearing Officer, and the applicant's time is not limited. The public hearing is open then, and comments by the public are limited to three minutes, unless the Hearing Officer determines otherwise. The Hearing Officer then can close the public hearing, and the Applicant can return to clarify or rebut comments made. And then a dialog could ensue between the PRECISE REPORTING SERVICE (800) 647 -9099 ME PS -RA 00178 t S S 1 i 1 1 1 2 3 4 5 N 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Hearing officer and the Applicant and City staff. And then the Hearing Officer has an opportunity to make a determination, the alternatives being approving the request, denying the request, or continuing the hearing to a date certain. So for the public's understanding, here is where the Pacific Shores Properties are, 492 1/2, 492 Orange, as well as 3309 Clay. They are proposing that there be 50 recovery beds in this community divvied up this way, 18 at 492 1/2 Orange, 20 at 492 Orange, 12 at 3309 Clay. And with that, I may leave this up on the board, but I'll let Ms. Brown speak more about the specific application. MS. BROWN: Thank you, Mr. Kiff. Good afternoon, Mr. Allen. I'm Janet Johnson - Brown, Associate Planner from the Planning I Department. The Pacific Shores facilities are comprised of three buildings located on two parcels on the southwest corner of Orange Avenue and Clay Street in the Newport Heights neighborhood. The properties are zoned R -2, which allows for single - family and two - family residential development. The property located at 3309 Clay Street is PRECISE REPORTING SERVICE (800) 647 -9099 71 PS -RA 00179 LJ l 2 3 4 s 5 6 7 i 8 9 10 11 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 developed with a single - family dwelling, and the Orange Avenue property is developed with two dwelling units. The Applicant is requesting reasonable accommodation for relief from the Municipal Code to continue an unlicensed sober living facility to provide housing for up to 50 individuals in the three buildings. With regards to establishment of use, staff is not certain when the use of the dwelling at 3309 Clay Street was converted to a residential care or group residential use. However, in response to complaints made to the.City in the Spring of 2007 about unpermitted construction, City staff inspected the building and found that the building was occupied and appeared to be in use as either a residential care facility or a boarding house i use. The property located on Orange Avenue, 492 1/2, was constructed in 2005. And the final inspection by the Building Department to allow occupancy of this building occurred on September 21, 2005. The 492 Orange Avenue building was inspected by the Building Department to allow occupancy on April 26, 2007. I did want to make a note for the record that the date of final inspection is incorrectly stated in the staff report on page 5 as April 24, 2007. This date should be April 25th. PRECISE REPORTING SERVICE (800) 647 -9099 MI P5 -RA 00180 I s 2 3 4 5 1 / 1 1 A 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 After that final building inspection, the facility manager was observed moving furniture and tenants into the moving on May 8, 2007. Since early 2007, there have been a variety of code enforcement issues brought to the attention the City regarding the Pacific Shores facility. These issues are 'discussed in detail in the staff report and include, but are not limited to, the unpermitted construction at 3309 Clay Street. Following the inspection of the building in Spring of 2007, the City issued a notice of violation for unpermitted construction. In order to comply with City and State building code requirements, the City requires that violators remove unpermitted construction and /or obtain approval of plans and permits for the unpermitted work. In response to the notice of violation and stop work order, the property owner submitted plans to the Building Department for plan check. It is the Building 'Department's standard practice to delay further enforcement action to allow the property owner an opportunity to complete the plan check process and obtain permits for the unpermitted work. Over a year later, no attempts to complete the plan check process were made by the property owner. And, PRECISE REPORTING SERVICE (800) 647 -9099 WE PS -RA 00181 s 1 i i i t 1 2 3 4 5 N 0 10 11 12 13 14 15 16 17 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 therefore, following standard City practice, enforcement efforts resumed and an administrative citation was issued. To date, this matter remains unresolved. In the process of reviewing the plans, staff noted that the building was incorrectly classified as an R -3 occupancy for Building Code purposes rather than an R -4 occupancy. An R -3 occupancy applies to single - family or two - family structures, whereas an R -4 occupancy would apply to structures for uses such as residential care facilities for more than six residents. The City's Fire Marshal is here at the hearing today and can provide additional input as to the significance of applying the correct occupancy rating to the structures. In February of 2007, Code Enforcement staff requested information about the use of the Pacific Shores facility. The manager of the facility at that time, Mr. Mark Manderson, Sr., informed Code Enforcement staff verbally and in writing that the facility leased rooms to tenants. In May of 2007, an ADP complaint investigator looked into the allegation of unlicensed treatment being provided at the Pacific Shores facility. The officer reported to City staff that she was told by Mr. Manderson PRECISE REPORTING SERVICE {800} 647 -9099 10 PS -RA 00182 s ! ! • s • A A 0 0 7 2 3 4 5 6 r 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 that the Pacific Shores facility was not a recovery facility, and that they just rented rooms to tenants. At the investigator's request, Mr. Manderson provided copies of sample leases with the tenants -- some of the tenants. The ADP investigator determined that the Pacific Shores facility was likely a sober living facility, but the treatment services that would require ADP licensing did not appear to be occurring on -site. In July of 2007, the new facility manager, Mark Manderson, Jr., told Code Enforcement staff that the Pacific Shores facility was a sober living home. In October 2007, the City filed a lawsuit in State Court against Pacific Shores, LLC, for violations of the Moratorium Ordinance for establishing a sober living facility while the moratorium was in effect. The City dismissed Pacific Shores from that suit earlier this year. As stated, the Applicant has requested reasonable accommodation for relief from provisions of the Municipal Code to continue operating an unlicensed sober living facility. An application was initially . submitted September 24, 2008. And subsequent amendments -- amended requests were submitted to the City on March 10 and March 13, 2009. The operational characteristics as described by PRECISE REPORTING SERVICE (800) 647 -9099 11 PS -RA 00183 1 • 2 3 O i i • • • • 4 5 6 7 w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Pacific Shores are as follows. And this is based on the information that's been provided by the Applicant. The clients reside at the facility under a separate written agreement with the operator and are expected to abide by a set of house rules, a copy of which is attached to the staff report as Exhibit 11. The Applicant states, that it does not have a manager or an administrator, but that there are two residents in each house designated to make sure that tenants do not use drugs or alcohol and to ensure the quiet enjoyment of the dwelling. The Applicant has also stated that Mark Manderson, who assists in the maintenance of the homes, is available on a 24 -7 basis. According to the Applicant, the curfew and quiet the hours are 10 p.m. on weekdays and 11 p.m. on weekends. And the Applicant states that curfew applies only to new members of the household during the first 30 days of tenancy, and that quiet hours apply to all residents. The Applicant has stated that treatment services are not provided on -site, and that clients are expected to attend 12 -Step meetings. There are no transportation services provided by the facility operator; however, the Applicant states that all residents are permitted to have personal vehicles while PRECISE REPORTING SERVICE A800) 647 -9099 12 1 PS-RA 00184 FJ 1 ® 2 3 n S 5 6 7 r 13 14 15 w 16 17 18 E 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 residing at the facility, not all residents have vehicles, and that some use public transportation. The Applicant states that those residents who do have personal vehicles park the vehicles along Old Newport or along the commercial park area of Orange. And that no residents park along Clay Street or on the non - commercial parking area along Orange. Each of the buildings do provide parking on -site in the form of an attached enclosed two -car garage. And that concludes my portion of the presentation. Catherine Wolcott, from our City Attorney's Office, is here to discuss the specific request as related to the reasonable accommodation and the required findings that need to be made to grant the request. MS. WOLCOTT: Thank you, Mr. Allen. To begin with some background on reasonable accommodation in general, and anybody who's been to a reasonable accommodation hearing before has heard this, but we can go to the first slide. Reasonable accommodation is something that is required under the Federal Fair Housing Act Amendments. Under Federal law, cities are required to -- Federal law does define the failure to make reasonable accommodations PRECISE REPORTING SERVICE (800) 647 -9099 13 PS-RA 00185 8 9 10 11' 12 13 14 15 w 16 17 18 E 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 residing at the facility, not all residents have vehicles, and that some use public transportation. The Applicant states that those residents who do have personal vehicles park the vehicles along Old Newport or along the commercial park area of Orange. And that no residents park along Clay Street or on the non - commercial parking area along Orange. Each of the buildings do provide parking on -site in the form of an attached enclosed two -car garage. And that concludes my portion of the presentation. Catherine Wolcott, from our City Attorney's Office, is here to discuss the specific request as related to the reasonable accommodation and the required findings that need to be made to grant the request. MS. WOLCOTT: Thank you, Mr. Allen. To begin with some background on reasonable accommodation in general, and anybody who's been to a reasonable accommodation hearing before has heard this, but we can go to the first slide. Reasonable accommodation is something that is required under the Federal Fair Housing Act Amendments. Under Federal law, cities are required to -- Federal law does define the failure to make reasonable accommodations PRECISE REPORTING SERVICE (800) 647 -9099 13 PS-RA 00185 0 D 1 2 3 4 5 6 7 8 8 9 0 10 11 12 13 14 15 m A f 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 in rules, policies and practices or services when such accommodations are necessary to afford a handicapped i person an equal opportunity to use and enjoy .a dwelling. The Court has repeatedly interpreted this language as imposing an affirmative duty on landlords and public agencies to reasonably accommodate the needs of disabled individuals. This is not a system that the City invented. This is something that is required under Federal law, which all cities and counties and other agencies -- other governmental entities have to comply with. The Fair Housing Act Amendment requires cities to make exceptions from their usual rules, policies and practices when necessary conditions are met. Those conditions are: The request is made on behalf of a disabled individual or group of individuals; The request is reasonable; The exception or accommodation is necessary to afford disabled individuals equal opportunity to use and enjoy a dwelling, and we've also listed the source code in the U.S. Code Regulations. The request is considered unreasonable if granting the request would either impose an undue financial or administrative burden on the City, or it PRECISE REPORTING SERVICE (800) 647 -9099 14 1 PS-RA 00186 it 2 3 4 O 5 6 7 O I O 8 9 10 11 12 13 14 15 I+ 16 O O O 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 result in the fundamental change in the nature of the i City's zoning program. So just because a disabled individual makes a request does not mean that the City is obligated to grant that specific request. There is limits on that, and staff does the analysis on whether or not a request is reasonable or necessary. When an Applicant has given a request that is clearly cannot be granted, the City engages in an interactive.process when possible to give them the option of what other requests they might ask for. When courts have reviewed whether or not a fundamental alteration is being proposed in a request, what they look at is whether or not the request would undermine the basic purpose which the requirement seeks to achieve. So in this case, we're looking at a number of requests that have to do with our Zoning Code and our Building Code. So we're going to be analyzing whether or not the basic purpose or the fundamental purpose of the Zoning Code, or Ordinance number 2008 -05, or the California Building Code would be undermined by those requests. As in all reasonable accommodation requests, they are analyzed on a case -by -case basis under the facts PRECISE REPORTING SERVICE (800) 647 -9099 15 1 PS-RA 00197 CJ p 2 3 4 5 6 7 R a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 specific to that particular applicant, that particular request, and the section they have asked to be exempted from. The first analysis that we would do when we are looking at a reasonable accommodation is the -- actually, first we look at is whether or not they are disabled. In this case, the Applicant has submitted to us a signed statement that everybody who would reside.in this property is a recovering alcoholic or addict. And the Federal courts and the Code of Federal Regulations has defined persons in recovery from alcohol and drug addiction as disabled individuals. That's the Federal definition. Then we look at whether or not the accommodation is necessary. Will the accommodation allow the disabled individual to live in the dwelling? Will the disabled individual be unable to live in the dwelling without the accommodation? And if there's a direct link between the accommodation and the required equal opportunity -- I should start with the fact that the way the U.S. Code phrases it is important in the analysis of necessity. You look at -- let's see. The language of the Code, I believe, is we have to make the accommodation if such accommodation is necessary to afford disabled PRECISE REPORTING SERVICE (800) 647 -9099 161 PS -RA 00188 s • • • s • • • • 1 2 3 4 5 6 d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING — 3/25/2009 individuals an equal opportunity to use and enjoy a dwelling. And the wording of that becomes important if you're looking at how different circuits have interpreted i that particular phrase. Pacific Shores Properties has requested to be treated as a single -- can we back up one, Dave? I'm sorry. MR. KIFF: Yes. MS. WOLCOTT: One of the things that Court cases, in interpreting the necessity prong, have looked at is whether or not there's a direct link between the specific accommodation requested and the equal opportunity which the Federal Government requires us to provide. And the courts have come up with two requirements that would show that there's a necessity for equal opportunity. One is whether the required accommodation is necessary to make the facility financially viable. And two, whether the required accommodation provides therapeutic benefit. And these are both very important factors to look at when you're analyzing the request from a large group facility. Do they need a facility the size they asked for and are they financial viable, which the courts PRECISE REPORTING SERVICE (800) 647 -9099 17 P5-RA 00189 1 ® 2 3 4 5 6 7 8 9 L1 • 0 El 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 have said affords disabled individuals an equal opportunity to live and enjoy the dwelling? And does the required size that they say they need provide a therapeutic benefit for the individuals? Pacific Shores Properties has made five separate requests. The first request submitted back in September of 2008 was to be treated as a single housekeeping unit. The second request was to be classified as a residential care facility. The third -- not -- excuse me. -- not to be classified as a residential care facility. Not to be treated as one in our analysis. The third request is to be classified as a legal non - conforming use. The fourth request was that all Zoning, Building, Fire and other applicable Code provisions be applied to the facility dwellings as if they were a single or two - family use, rather than the use that our land use classifications or the California Building Code considers them to be; The fifth request, which you received on March 13th, since the date of this staff report, is to be exempt from the requirements.of Newport Beach Municipal Code Section 20.10.020, which is the land use matrix in PRECISE REPORTING SERVICE (800) 647 -9099 PS -RA 00190 i s • i i i i i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 which we say the Code says that residential care facilities -- that all residential care facilities that are not six and under licensed must be located in MFR residential districts with a use permit. As you know, all licensed six and under facilities can be located in a residential zone. Request number one and number two will be treated together. We analyzed it at the same time, because the request to be treated as a single housekeeping unit and the request not to be classified as a residential care facility were basically rewordings of the same request. If you look at the land use classifications entitled 1120 and Residential Zones," of the land use classifications available, other than single housekeeping unit, there was no other land use classification that would have been particularly helpful to this Applicant. The only other available classifications were day care homes, which was not applicable here, group residential, which is not helpful to the Applicant, because group residential uses, which is all other uses not residential care that are not living as a single housekeeping unit, all of those uses are provided in all other residential zones -- all residential zones, period. Let me correct that. PRECISE REPORTING SERVICE (800) 647 -9099 19 1 P8-RA 00191 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Integral facilities? We would analyze them as an integral facility. That's another form of residential care use. And the only remaining land use classification was parolee /probation homes, which are also prohibited throughout the_ residential zones. Therefore, if we don't classify them as a residential care facility, the only other land use classification that they would fit into would be single - family, two- family and multi- family. And it's a prerequisite for that use to be classified as that use, that the people living there be living as a single housekeeping unit. So that's the long way of saying we will treat those two requests the same as one. Single housekeeping unit. I'm not going to read you the entire definition, but you can look at it on the screen. There are certain aspects of the definition that the facility may meet, including, probably, being an interactive group jointly occupying a single dwelling, may have joint use of and responsibility for common areas, they may share household activities, they may share meals and chores, although I believe the Applicant reported that they are responsible for their own meals. And our single housekeeping unit definition goes on, however. If the unit is rented, all adult PRECISE REPORTING SERVICE (800) 647 -9099 20 1 PS -RA 00192 11 • 2 3 4 • 5 6 7 • • • • • • • • 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 residents -- see what happens when you don't proofread your work? -- residents have chosen to jointly occupy the entire premises of the dwelling unit under a single. written lease with joint use and responsibility for the premises, and the makeup of the household occupying the unit is determined by the residents of the unit rather than the landlord or the property manager. And the evidence that was submitted both to ADP and to us in the past is that they are each on individual leases with the landlord, and the landlord determines the makeup of the unit. The characteristics of single housekeeping unit, outside of the definition, are single housekeeping units can live in any residential district. There are no occupancy restrictions,within the home for a single housekeeping unit, other than those imposed by -- under the Zoning Code. There are some occupancy restrictions under the California Building Code as to how many individuals can live in a structure of a certain size. So our analysis starts with, is the single housekeeping unit request reasonable? A request to be treated as a single housekeeping unit is essentially a request to be exempted from all of our restrictions and all of the conditions the City might impose on a large facility to reduce the negative secondary impacts. PRECISE REPORTING SERVICE (800) 647 -9099 21 PS-RA 00193 11 i 2 3 4 i 5 • i • • • • A • 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 One the basic purposes of the Ordinance was to mitigate the adverse secondary impacts which a residential care facilities might cause in surrounding neighborhoods. As we mentioned, all other groups not living as a single housekeeping unit are entirely prohibited in other residential districts; therefore, in the City's view, the City has essentially already made a reasonable accommodation for residential care facilities. We have allowed them a process in which, rather than just being told, "You are not a single housekeeping unit. You cannot locate in the City," we've made an exemption. And we said, "Because of the special needs of your handicapped residents, we have created a process, a lengthy -- you know, many, many options by which a residential care facility with disabled individuals may locate within the City." However, if the request is granted, if this facility a treated as a single housekeeping unit, the basic purpose of Ordinance 2008 -05 is nullified entirely, and that does create a fundamental alteration of what the Zoning Code intends and what the Zoning Code has adopted to achieve. The next prong of the application -- excuse me -- of the analysis is whether or not treating it as a PRECISE REPORTING SERVICE (800) 647 -9099 22 1 PS -RA 00194 SJ J %1 2 3 4 5 6 7 8 9 10 11 12 i 13 n .J r. 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 single housekeeping unit is necessary to afford disabled individuals the ability to live in and enjoy a dwelling. The combination would allow disabled persons to live in a dwelling. However, then we next look at, would the disabled individuals be unable to live in the dwelling without the specific accommodation? And our answer is no. The question is unnecessarily broad. There are many options that the Zoning Code allowed -- present, through which a residential care facility can house its residence without being treated as a single housekeeping unit. Furthermore, the necessity for financial viability or the therapeutic benefit of being treated as a single housekeeping unit has not been shown by the Applicant. Alternative requests which are more reasonable could afford the individuals an.equal opportunity to be -- to live within the City of Newport Beach. If you review the staff report, all 39 page of it, you'll see the full analysis of what findings we made and did not make as to the single housekeeping unit request and the request to not be treated as a residential care facility. If you want me to go into more details about PRECISE REPORTING SERVICE (800) 647 -9099 23 P5 -RA 00195 p 1 2 3 4 5 6 7 1 8 • • O A 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 that, I'll happy to. But we do have a lot of requests to cover. Move to request number three, the request to be treated as a non - conforming use. The staff recommended granting this request because essentially the City's already treated Pacific Shores as if it were a non - conforming use. There are questions about establishment dates. There's a possibility that one was essentially established during a certain period. But the way we've been treating this facility is the same way that we treat all non - conforming uses within residential districts.. And I should add that there's been some confusion about legal non - conforming and non - conforming. In our Planning Department's parlance, we don't use the term "legal non-conforming.,, It's either non - conforming, which is legal to be there under certain conditions, or i it's an illegal use. Non - conforming uses in residential districts after the passage of the Ordinance 2008 -05, had the opportunity to apply for a use permit within a certain period of time. They had the opportunity to apply for a reasonable accommodation. They had the opportunity to apply for an extended period of abatement. They could do any one of those options at the same time or in sequence. PRECISE REPORTING SERVICE (800) 647 -9099 24 1 PS-RA 00196 I ! 2 3 4 ! 5 6 7 8 • • • • • �] I 11 12 13 14 15 16 17 18 I r� 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 And Pacific Shores has been give those same options. They have been given the same opportunities as non - conforming uses in residential zones. Request number four, which is their request to have these Zoning, Building and Fire Codes applied to their dwellings as if they were single - family or a two - family use. staff applied analysis used in requests number i one and two and recommended denial. Applying the Zoning Code to a residential care facility as if it were a residential use is essentially the same as treating it as if with a single housekeeping unit. As we've already discussed, single - family, two - family and multi- family uses are single housekeeping units essentially. And so we did the same analysis there for Zoning and recommended denial. As to the Building Code, California Building Code is the State law. It is adopted at the State level under the authority of the California State Legislature. And it is adopted and enforced by the City of Newport Beach. The Building Official and our Fire Marshal are the individuals in the City staff that are responsible for enforcing the State code. Pacific Shores has requested to be treated as an R -3 use, essentially. Switching gears a little, you PRECISE REPORTING SERVICE (800) 647 -9099 25 1 PS -RA 00197 s L 2 3 4 5 6 7 s 8 s • • • • 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 have not heard us talk before about Building Code occupancy. Essentially, when the Building Code use the word "occupancy" in a way that is similar to the way the Zoning Code uses the word "use." They are different terms, but they apply to what's the use that's going on inside the building. State law establishes construction standards and life safety requirements for the different occupancy types, based on their operating characteristics and the needs of the residents. So R -3 under the Building Code are single and two - family occupancy. That would be a single - family home or a duplex. R -4 are recovery facility occupancies housing seven or more in a building. And R -3.1 are recovery facility occupancies housing six or less in a building. Essentially, as the Applicant proposes to house more than seven in each.of its buildings, every one of their occupancies are classified as an R -4. They would like to be treated as an R -3 and have the standards for those -- the lower standards of Safety Code of R -3 applied. The life safety standards for residential care facilities uses were established by the State Fire Marshal, not our Fire Marshal. And the State Fire PRECISE REPORTING SERVICE (800) 647 -9099 26 PS -RA 00198 n 1 2 3 4 5 6 7 1 D O d iI, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Marshal adopted them under the authority of the State Legislature, which expressly directed him, in Health and Safety Code 13135, to adopt specific standards for alcohol and drug recovery facilities. The City has the authority to substitute alternate materials and methods that will provide an equivalent level of protection, but we do not have the authority to waive the level of protection or change the level of protection. And we do not feel it is appropriate in any way to lower the standards of safety for the residents of these facilities. Those standards were adopted for a reason. And they were adopted because, at the State level, the determination was made that there were operational characteristics for the special needs of the individuals in the facility that required that extra protection. We feel the Applicant should raise that extra protection. It should be willing to provide it rather than seek to lower it. The City Fire Marshal enforces the State Fire Marshal's regulations. He does not create them himself. He does, however, have the authority to determine the equivalent level of protection that might be there. And I'm going to see rather quickly if Mr. Bunting is here. He's not. If the Applicant has any PRECISE REPORTING SERVICE (800) 647 -9099 27 PS-RA 00199 F. l i 2 3 4 ! 5 6 7 ! • U s U u U It 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 specific questions about why the Fire Marshal is requiring what he is requiring, I can answer them to the best of my ability when the time is appropriate. But I can say that he has looked at some of the facilities and has determined that they have the wrong type of sprinkler in them. in a residential facility, a residential type of sprinkler would be required. In an R -4 occupancy -- I said "residential facility." It's not a facility. In an R -4 occupancy, a commercial sprinkler systems are required. And the reason that!s required is that a residential sprinkler is in place to suppress the fire long enough for the residents of that dwelling to exit safely. In a commercial facility, a commercial sprinkler system is in place to prevent the spread of fires and suppress the fires to prevent -- to protect neighboring facilities, so the fire does not spread from one dwelling to another, which is one of the reasons that we could not make finding five in this analysis either. We did feel that it would create a risk to neighboring properties, as well as to -- the risk to the residents of the facilities. Therefore, staff strongly does not recommend granting request number four. Number five, waiver of the requirement of PRECISE REPORTING SERVICE (800) 647 -9099 ME PS -RA 00200 r, 1 ! 2 3 4 ! 5 6 7 8 9 ! 10 11 ! • 12 13 14 15 lb 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 location in MFR with use permit. At this level, we had a number of different analyses that we did. We looked at whether the request was necessary and reasonable for the current residents of the facility. Because it is our feelings that if there are current residents there, and they are staying for a limited period of time, that's a different analysis as to the necessity, you know. First, someone who is already there who would be deprived of housing if abatement proceeded. And two, reasonableness, if it's a short period of time. The facilities told us the average stay is, I think, 45 to 180 -- yeah. Approximately six months. So we didn't feel that allowing current residents to remain for up to six months maximum undermines the basic purpose of the Zoning Code. We also analyzed at the population level that was requested specifically by the Applicant. The Applicant would like to house 50 individuals, 12 of them at 3309 Clay, 18 of them at 492 1/2 Orange, and 20 of them at 492 Orange, based upon the number of bedrooms that they represented are in these facilities. Staff looked at this in detail, as you can see in the staff report, and determined that -- I can go into this a little bit more -- but determined that that level, PRECISE REPORTING SERVICE (800).647 -9099 29 PS -RA 00201 • • # • • • • • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 that number, was not necessary, and that number fundamentally undermined the purpose of the Zoning Code. Staff also analyzed what number and what circumstances might be imposed that would enable this particular facility to not being undermined the basic purposes of the Zoning Code, and I'll talk about that i I now. So beginning with a necessity prong, is the accommodation necessary to afford a disabled individual an equal opportunity to use and enjoy a dwelling? We looked there at whether or not -- and this is from case law that we discussed earlier -- whether or not the facility required the requested accommodation, and whether the requested population level was required to achieve financial viability and the therapeutic benefit? Which is what a number of circuits have found necessary to demonstrate the necessity prong. We haven't seen any evidence of what the financial needs are of the facility. We have requested it, and the Applicant specifically objected to the request and declined to present it in the past. Any time the Applicant would like to present us with financial information, we would will be more than happy to analyze it and advise accordingly. The Newport Beach Municipal Code allows the PRECISE REPORTING SERVICE (800) 647 -9099 30 PS -RA 00202 J F1 J 1 2 3 4 5 7 • 8 9 0 • A s 10 11 12 13 14 15 18 19' 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 City to consider four factors in determining necessity: Whether the accommodation will affirmatively enhance the quality of life of individuals with a disability -- that's the therapeutic benefit analysis; Whether the disabled individuals will be denied an equal opportunity to enjoy the housing type of their choice without the accommodation; And whether the accommodation is necessary for financial viability; And whether the existing supply of facilities of a similar nature and operation is sufficient to provide individuals with an opportunity to use and enjoy a dwelling in Newport Beach. And that addresses the portion of the necessity prong that I provided in the letter to you and to opposing Counsel. Staff analyzed the reasonableness and necessity of this request with regard to the following categories: Current residents of 492 and 492 1/2 Orange. Because at this time, there is no one residing in 3309 Clay. That building has been red tagged pending resolution of the Building Code issues. And prospective residents at 50, and at staff's recommended level 12 residents, one dwelling unit. As we discussed in the staff report, without further input from PRECISE REPORTING SERVICE (800) 647 -9099 31' PS -RA 00203 1 s 2 3 P • 5 6 7 s 8 J E 10 11 12 13 14 PUBLIC HEARING - 3/25/2009 the public and from the Applicant, we didn't want to make solid recommendation on which specific dwelling unit to recommend for the one unit. My analysis was that the most appropriate was 492 1/2 Orange, which is the back unit on the duplex at the corner of Clay and Orange. And the reason for this was that it's surrounded on two sides, one side by a ;commercial office building, two sides by a Pacific I Shores' dwelling unit, and that would insulate the neighbors from any secondary impacts. And also that that was a use that was established prior to the moratorium. That did not violate the moratorium to the best of our knowledge, that particular unit. We move on to whether or not the accommodation request is reasonable. The fact that we're allowed to consider it is not the same as the findings. These are factors that we can think about while we're making the findings. These guide us in the analysis. Whether the accommodation would fundamental alter the nature of the neighborhood; Whether the accommodation would result in substantial increase in traffic or insufficient parking; MR. ALLEN: Just quickly. You're now going back and analyzing the request. PRECISE REPORTING SERVICE (800) 647 -9099 41 32 1 PS -RA 00204 15 * 16 17 18 & 19 20 21 ® 22 23 24 25 PUBLIC HEARING - 3/25/2009 the public and from the Applicant, we didn't want to make solid recommendation on which specific dwelling unit to recommend for the one unit. My analysis was that the most appropriate was 492 1/2 Orange, which is the back unit on the duplex at the corner of Clay and Orange. And the reason for this was that it's surrounded on two sides, one side by a ;commercial office building, two sides by a Pacific I Shores' dwelling unit, and that would insulate the neighbors from any secondary impacts. And also that that was a use that was established prior to the moratorium. That did not violate the moratorium to the best of our knowledge, that particular unit. We move on to whether or not the accommodation request is reasonable. The fact that we're allowed to consider it is not the same as the findings. These are factors that we can think about while we're making the findings. These guide us in the analysis. Whether the accommodation would fundamental alter the nature of the neighborhood; Whether the accommodation would result in substantial increase in traffic or insufficient parking; MR. ALLEN: Just quickly. You're now going back and analyzing the request. PRECISE REPORTING SERVICE (800) 647 -9099 41 32 1 PS -RA 00204 a a a a s a 9 a O 1 2 3 4 5 3 I 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 as they made it, not how you're suggesting it would be modified, right? MS. WOLCOTT: In the staff report, we did both. So if you go through the staff report, there's, you know, category four as to prospective -- as to current residents., and then we have two categories under prospective residents, one of which is at the staff -- at their requested level, and another is at the staff's recommended level. So as we went through it, we went through the analysis, in a number of places we could not make the required findings as to 50 individuals and three dwelling units. It didn't -- there were requirements about not creating an overconcentration in the neighborhood, not creating a clustering of facilities. And with three dwelling units and 50 people, we could not make that finding. So then we analyzed with 12 people, one unit. And specifically, we looked at the size of the unit. • And if, as staff recommended, that unit was taken back to the way it was illustrated on plans that the City saw and approved, that would give a recovery environment that is much less compressed than any other we're aware of. It would have 12 people with a facility that had only six PRECISE REPORTING SERVICE (800) 647 -9099 33 I PS -RA 00205 i AT 1 All A) 1 2 3 4 5 0 9 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 bedrooms and a bonus room and game room and offices. So it would be spread out more, less density of the unit. Other factors there, whether the accommodation would create an institutional environment due to the number and proximity of similar uses. Obviously, from our perspective, 50 people looked like a sober living institution. Eighteen people, 20 people in one dwelling unit looked like a sober living dormitory, not like a sober living home. We are trying to make a recommendation that allowed it to be a sober living home, if that's what Federal law requires us to accommodate. We.went through the required findings. would granting the request impose an undue financial or administrative burden? In most cases, no. At the staffs recommended level, no. However, at the level requested by the Applicant, due to our history with this Applicant, due to the past code Enforcement issues that we have had and continue to have, due to some of the misrepresentations made by the Applicant about what exactly the facility was early on back in Spring of 2007, because of those, we could not make that finding as to a facility with 50 residents. We felt that we could make it as to 12 PRECISE REPORTING SERVICE (800) 647 -9099 34 PS-RA 00206 J i. • 2 3 4 5 6 7 i v • 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 residents, if the Applicant agrees to work carefully with us, if inspection is allowed once a year. As you'll see, that's one of the conditions that staff proposes, so that we can monitor the -- or not monitor, to confirm every year that the occupancy is what we've agreed to. Then we look at whether granting the request would result in a fundamental alteration in the nature of the zoning program? Would allowing the use to continue in an R -2 zone undermine the basic purpose R -2 zoning seeks to achieve? We also look at whether allowing the use to continue without a use permit undermines the basic purpose that the use permit requirement seeks to achieve? The purposes of the R -2 and MFR zones.. R -2 is intended to provide areas for single- and two - family residential uses. This is medium to high density, depending on location. In the Santa Ana Heights area, the Planning Department says this is medium density. MFR is to provide single -, two - and multi - family residential uses. Also at medium to high density. At staff's proposed level of density, which would be 12 residents in a six- to nine - bedroom facility, felt the medium level of density would be achieved, given the size of the lots in that area. PRECISE REPORTING SERVICE (800) 647 -9099 351 PS-RA 00207 t t M 1 2 3 4 5 0 d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 The use permit environment is also very important. Use permits are required for uses that have operating characteristics that require special conditions to keep them from having an impact on the neighborhood around them and changing the residential character of that neighborhood. ordinance 2008 -05 requires use permits for non - conforming uses in residential areas. And the purpose of that is to ensure that the purpose of the Zoning Code is achieved, and adverse secondary impacts from non - conforming uses can be mitigated. The purpose of the permit -- I'm not sure if it's on the next slide. The purpose is to -- that's the general use permit reason.. And this is the special -- the use permit that has -- the procedures of 20.91A. The purpose is to promote public health and safety and implement goals of general plan by ensuring that conditional uses do not,change the character of residential neighborhoods. And the second purpose is to protect and implement the recovery and reintegration of the disabled, in part by avoiding overconcentration that would lead to institutionalization of an area. And in the mind of staff, that second prong is PRECISE REPORTING SERVICE (800) 647 -9099 �I PS -RA 00208 L. 6 s !1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ® 22 23 24 25 v PUBLIC HEARING - 3/25/2009 as important as the first. we don't feel that it is to the benefit of recovering individuals to be in an overcrowded or institutionalized condition. From our conversations with recovery experts and reading cases, one of the purposes of community -based care is to allow the recovering individual to learn to reintegrate into a neighborhood, to have interaction with individuals who are not in the facility, so that they can start relearning the standards and norms of a regular neighborhood and learn how to enter the mainstream of society again. The purpose is to learn how to live in a neighborhood, not to learn how to live in an institution. Is the use permit purpose undermined if the accommodation is granted at the level staff recommended and the level that the Applicant has requested? One of the reasons we found that the use permit might not be undermined by granting a similar accommodation in the past is that reasonable controls, which the Hearing Officer can impose through a use permit, can also be imposed through a reasonable accommodation. The Municipal Code allows the reasonable accommodation process to have conditions attached to it. The reasonable accommodation is not a land use entitlement. It does not run with the land. It is PRECISE REPORTING SERVICE (800) 647 -9099 37 1 PS -RA 00209 ['A 1. & 2 k, 4 i 5 6 s 0 i 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 specific to a particular applicant at a particular location under particular conditions. Our analysis was that with the conditions -- and I stress with the conditions -- all the findings required to issue a use permit could be made for this facility, with the exception of one item, which I would like the Applicant to address. One of the findings for a use permit, operational standards, 20.91A.050, is that no individual affiliated with the facility has a past pattern and practice of operating similar facilities in violation of state and local law. You can parse out the word "similar facilities" and whether or not it means the same facility. But because some of the misrepresentations of the Applicant, this specific Applicant, in the past, or one member of the family that is affiliated with the facility, staff would like reassurance from Counsel and the Applicant that either that individual will not be involved in the operation or present us with an explanation of why not being able to make this finding does not undermine the purpose of our Zoning Code. This is not a use permit. We're not requiring that you apply for a use permit. But we do have to analyze, so we have some flexibility with the reasonable PRECISE REPORTING SERVICE (800) 647 -9099 Elm PS -RA 00210 1 • 2 3 4 • 5 6 N • • • • • • d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 accommodation standards. But we do have to analyze why that prong is not undermined. MR. ALLEN: Would you expect to do that on the record in a hearing, or is that something that you suggesting otherwise? MS. WOLCOTT: I don't know that that needs to be on the record at this hearing. I think it could be in the public record. It would be part of the Resolution that's adopted. Is that acceptable to you? Proposed conditions. A bed count of no more than 12 clients with one resident manager on -site to control the activities and to enforce the rules of the facility. The facility will not occupy the second or third dwelling unit for residential care purposes. Weeknight curfew of 10 p.m. Weekend curfew of 11 p.m. Quiet hours of 10 p.m. to 8 a.m. Staff report also has some other conditions that may not be included in here, which include quiet hours for television at a certain hour. I think it's after 10 o'clock and before 8 a.m. No secondhand smoke detectable off the property. Twenty- four -hour contact provided to address PRECISE REPORTING SERVICE (800) 647 -9099 39 PS -RA 00211 s 1 s El 2 3 4 5 6 ® 7 8 9 s s i i 0? P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 the neighbor concerns. As in other accommodations and permits that have been given, that would be a number that residents could call and receive an answer within 24 hours from the facility operator that would address, acknowledge the concerns, and give information on how those concerns would be addressed. Providing a list of similar facilities owned or operated in the past five years, and certifying that no person operating such facility has done so in violation of law, or providing an explanation that was satisfactory to staff and the Hearing Officer of why this would not undermine the basic purpose of the Zoning Code. No more than six residents with personal vehicles. In the staff report, we address the parking and the traffic issues. And if you'd like me to go into that, I can. If you'd like me to spare you that, I will summarize by saying that there are enough parking spaces on -site to accommodate at either one of the units only six residents under the parking standards required in the Zoning Code. Therefore, we, staff, would require that the facility, which says that not all residents have cars, limit the personal vehicles of the residents present to no more than six, only six. And we would require that the garage be open and accessible for vehicle parking, PRECISE REPORTING SERVICE (800) 647 -9099 40 1 PS -RA 00212 s • • • • • • 1 2 3 3i 5 6 7 8 olus 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 and that those four residents who might have cars, if they are not parking on -site, park only on Old Newport Road or the commercial section of Clay Street -- excuse me, Orange Street, and not park on Clay at all. All other dwellings return to use single housekeeping unit use. We would require, as we do with all the use permits and accommodations, that we be given the required compliance with all state and local laws, including the California Building Code. And if they are not in compliance at the time that the Resolution -- any Resolution the Hearing Officer would approve or not approve is executed, then they would need to enter into a schedule with our Fire Marshal and bring it into compliance to his satisfaction within a certain period time. I believe we discussed six months. We would also require an annual inspection to confirm occupancy for a set period of years, and that is because of the history that we have with this Applicant. Okay. So we found that with conditions, the use could conform to the operational standards of 20.9A.050, with the exception of that last one, which we still are requiring an explanation for. MR. KIFF: This may be where you're done. MS. WOLCOTT: Okay. If you have any questions, I'd be happy to answer it. PRECISE REPORTING SERVICE (800) 647 -9099 41 1 PS -RA 00213 L. Y ® 2 3 4 A 5 6 7 8 9 10 11 12 i 13 14 15 • 16 D 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. ALLEN: All of this last information with respect to request number five has been done virtually.at the last minute with no input from between you and the Applicant, as I understand it. And so it's all being presented today. And there are certainly a number of questions about that from my standpoint of negotiating permit in this setting. So would you, staff, please think about that? And you don't need to respond right at the moment, but that's not -- this isn't the proper forum to negotiate a resolution, in my estimation. So this needs to be worked out. MS. WOLCOTT: Can I address that? MR. ALLEN: You sure can. MS. WOLCOTT: We received this particular request for accommodation on March 13th, when we were in the middle of several other use permit and reasonable accommodation applications. And so yes, that did push back the time for the preparation of the staff report. We also asked for more information that was not provided until, I believe, the 18th of March, because there were items that they had declined to give us, information that they hadn't presented before that we needed in order to do an analysis that's consistent with a level of analysis we've done with other facilities. PRECISE REPORTING SERVICE (800) 647 -9099 42 PS -RA 00214 l ! 2 3 4 5 6 7 8 9 ! 10 it ! • A 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 So yes, staff came up with these recommendations without further input from the Applicant. And we did say in the staff report that we recognize that this has just been presented to them, to the Hearing Officer, and to the public. And if the Applicant wanted to request a continuance as to this particular -- or any member of the public wanted to request a continuance as to this particular prong of the analysis, this particular request number five, we would not object. MR. ALLEN: Okay. Okay. What's next from the I staff? MR. KIFF: That's the end of the staff section, IMr. Allen. MR. ALLEN: Just a few quick questions. Those occupancy R -4 standards have been applied to all of the group facilities of seven or more in the City, right? This wouldn't be the first time you're suddenly applying R -4 standards? MS. WOLCOTT: Our Fire Marshal has been sending letters to all facilities of seven or more per building for over a year requesting plan analysis, code analysis of the particular building that they are in, so they can assess whether or not they are in compliance either with the 2007 Building Code, which was the new Code adopted in PRECISE REPORTING SERVICE (800) 647 -9099 43 1 PS-RA 00215 i i i i i 0 • s O 1 2 3 4 5 C d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 2007, or with the standards which were applicable when the use was established. That is an ongoing process, and it is still a requirement. MR. ALLEN: Just a question of physical characteristics. I just went this facility yesterday 7 by Y Y a couple of times, and I really couldn't tell whether 492, I think it is, and 492 1/2 are actually attached dwellings or whether there is a separation between the two, your 18 and 20 there. MS. WOLCOTT: They look like two separate buildings. And Ms. Brown can probably address this better than I can. They are classified as a duplex, and Janet will tell you why. MS. BROWN: The Zoning Code requires a separation between detached structures, or they may be attached by a solid roof 4 feet in width or more.. And when the buildings were constructed, they were attached with a solid roof towards the rear of the property about where Mr. Kiff is pointing right now. So there's just a single solid roof attaching these two structures to each other. MR. ALLEN: So you can't go back and forth between the two building -- MS. BROWN: No. THE COURT: -- interiorly? PRECISE REPORTING SERVICE (800) 647 -9099 44 I PS -RA 00216 w 1 i 2 3 i i i i 4 5 6 7 w 10 11 12 13 14 15 16 17 18 19 20 PUBLIC HEARING - 3/25/2009 MS. BROWN: No, sir, you cannot. MS. WOLCOTT: I would add that we looked at the populations of this block. And we look at the 2000 Census to try to compare density. And I think our analysis was that, one, they have turned approximately -- with all three units in operation, they would return approximately one - quarter of this block area to -- that block that's there and that block that's over there -- would be put to residential facility use. Ms. Brown did an analysis from the 2000 Census of how many parcels there were, and came up with an analysis of -- let's see. I'll have Janet do this one. MS. BROWN: On the side of the street with the residential buildings facing along Clay Street, and then it goes down -- the block goes down Broad Street, which you can't see this in aerial photo, but along that block, there were 20 lots or parcels. And the -- 20 blocks or parcels that are residentially zones, there are 37 lots or parcels on the other side, back -to -back properties, that were commercially zoned. So -- and the 2000 Census recognized that there were 70 persons in that particular block. If I counted just the number of residential parcels decided by 70 persons, that would be 3.5 individuals per lot or parcel. Across the street from Clay, which you can see PRECISE REPORTING SERVICE MOO 647 -9099 45 1 PS -RA 00217 21 22 23 24 25 • PUBLIC HEARING - 3/25/2009 MS. BROWN: No, sir, you cannot. MS. WOLCOTT: I would add that we looked at the populations of this block. And we look at the 2000 Census to try to compare density. And I think our analysis was that, one, they have turned approximately -- with all three units in operation, they would return approximately one - quarter of this block area to -- that block that's there and that block that's over there -- would be put to residential facility use. Ms. Brown did an analysis from the 2000 Census of how many parcels there were, and came up with an analysis of -- let's see. I'll have Janet do this one. MS. BROWN: On the side of the street with the residential buildings facing along Clay Street, and then it goes down -- the block goes down Broad Street, which you can't see this in aerial photo, but along that block, there were 20 lots or parcels. And the -- 20 blocks or parcels that are residentially zones, there are 37 lots or parcels on the other side, back -to -back properties, that were commercially zoned. So -- and the 2000 Census recognized that there were 70 persons in that particular block. If I counted just the number of residential parcels decided by 70 persons, that would be 3.5 individuals per lot or parcel. Across the street from Clay, which you can see PRECISE REPORTING SERVICE MOO 647 -9099 45 1 PS -RA 00217 i 2 3 4 5 6 7 8 9 10 11 12 ® 13 14 15 ® 16 7 7 2 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 a portion of it in this photo to the right here, that block is a smaller block defined by the census, a total of 12 lots or parcels. There were 43 persons in that block. So based on that count, that would be 3.58 persons per block in the 2000 Census. MS. WOLCOTT: So those were the numbgrs that we were comparing the density for a proposal that housed 50 people in that portion. MR. ALLEN: All right. From an overconcentration point of view, there really -- there wasn't much. There was a reference to overconcentration in the staff report, but no real analysis. Just, why was that the case? MS. WOLCOTT: Maybe in my mind, it went without saying that three units on a block housing 50 people created an overconcentration. I'm sorry if I didn't make that clear in the staff report. MR. ALLEN: I mean, is that a finding that would be included here independently? I understand you made reference to institutionalization, which is understandable, but -- MS. WOLCOTT: Let me another take another look through the 39 -page staff report and see if I can find where I would have referenced that. MR. ALLEN: Very good, thank you. PRECISE REPORTING SERVICE (800) 647 -9099 PS -RA 00218 l 2 3 4 I1 5 6 7 r� r. [7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Okay. Anything else from staff right now? MR. KIFF: No, sir. MR. ALLEN: Would the applicant like to make a presentation at this time? MR. POLIN: I would. I would also like to take a five - minute recess before I begin. MR. ALLEN: Let's take a five - minute recess. MR. POLIN: Thank you. (Pause in proceeding.) MR. ALLEN: All right. We're going back on the record. Would conversations please continue outside? Applicant ready to proceed? MR. POLIN: Thank you, Mr. Allen. My name is Steven Polin, and I'm one of the attorneys for Pacific Shores. As a preliminary matter, Pacific Shores is currently in litigation with the City of Newport Beach in Federal Court where we have challenged the requirements of the use provisions and the reasonable accommodation provisions as being violations of the Federal Fair Housing Act. Pacific Shores did not apply for a use permit, and I strongly object to the interjection into this reasonable accommodation proceeding by the City of any of PRECISE REPORTING SERVICE (800) 647 -9099 47 PS -RA 00219 [J • t A 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 the requirements of the elements of a use permit. And you, Mr. Allen, if you're going to decide this and consider the factors of a use permit and our request for a reasonable accommodation, then it's basically -- this hearing is tainted. Reasonable accommodation. The Federal Fair Housing Act states that handicapped people -- handicapped persons can request a reasonable accommodation from any rule, policy, practice or procedure from any entity. Reasonable accommodation, put in layman's terms, is either asking for a waiver of a condition or requirement or a change in a condition or requirement or doing something out of the ordinary. Now, we have made five separate requests for reasonable accommodation from the City. One of them is to be treated as a single housekeeping unit. Another one is to not be -- is to ask the City I not to classify us as a residential care facility. Another one would be to say that we're a legal non - conforming use or the City recognizes us as a non - conforming use that is not in violation of the City's Zoning ordinance. The other is to treat Pacific Shores in the provision of all Codes, Zoning, Building, Fire, Life PRECISE REPORTING SERVICE (800) 647 -9099 48 1 PS -RA 00220 r 1 2 3 n d 5 6 7 8 J J 01 10 it 12 13 14 15 16 17 18 ® 19 El El 23 24 25 PUBLIC HEARING - 3/25/2009 Safety, as if it were a single family use. And finally, that we're not -- that the City waive the requirement that unlicensed residential care facilities may be located in only a residential multi- family zone with a use permit. Now, we have three houses with approximately 50 beds. What the City has come forward and told you is we're willing to give them an accommodation, but only for 12 beds. That's not acceptable. That is not what our request is. And to grant that, to give the City what the City is recommending, is a denial of our request for reasonable accommodation. Let me tell you why. The City and yourself is required to take our request as being reasonable. And reasonable is given a very, very wide interpretation. As a matter of fact, Justice Bryer, in the case of Barrett versus United -- United -- U.S. Airways, said that you have to look at the dictionary to see what reasonable is. And it's given a great deal of leeway. So to say that we're going to say that you -- we're going to take 38 beds away from you is not reasonable. And the City hasn't proffered any reason, under the Fair Housing Act, as to why 38 people should be evicted and lose their place to live and recover from alcoholism and drug addiction. So first of all, you have 49 PRECISE REPORTING SERVICE (800) 647 -9099 PS -RA 00221 20 21 ® 22 El El 23 24 25 PUBLIC HEARING - 3/25/2009 Safety, as if it were a single family use. And finally, that we're not -- that the City waive the requirement that unlicensed residential care facilities may be located in only a residential multi- family zone with a use permit. Now, we have three houses with approximately 50 beds. What the City has come forward and told you is we're willing to give them an accommodation, but only for 12 beds. That's not acceptable. That is not what our request is. And to grant that, to give the City what the City is recommending, is a denial of our request for reasonable accommodation. Let me tell you why. The City and yourself is required to take our request as being reasonable. And reasonable is given a very, very wide interpretation. As a matter of fact, Justice Bryer, in the case of Barrett versus United -- United -- U.S. Airways, said that you have to look at the dictionary to see what reasonable is. And it's given a great deal of leeway. So to say that we're going to say that you -- we're going to take 38 beds away from you is not reasonable. And the City hasn't proffered any reason, under the Fair Housing Act, as to why 38 people should be evicted and lose their place to live and recover from alcoholism and drug addiction. So first of all, you have 49 PRECISE REPORTING SERVICE (800) 647 -9099 PS -RA 00221 i 11 ® 2 3 4 i 5 6 7 8 9 E i E • u Li 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 to take our request and each of our requests as being reasonable. Second of all, once it's found to be reasonable, then it can only be found not to be reasonable if it creates or causes an undue burden financially, if it causes an undue burden administratively, or if it fundamentally undermines or alters the scheme. Now, the City has arguing to you and putting forth that there is no undue burden financially, there is no undue burden administratively. However, three of our five requests cause a fundamental alteration of the zoning scheme. And the reason the City says that is because its zoning scheme is under attack. All right? It is under attack for being in violation of the Fair Housing Act. So if they grant an exception, if they say Pacific Shores can operate as a single housekeeping unit, well, what kind of signal is that going send to the people who are opposed to Pacific Shores and to group residential uses in general in the City? And what kind of signal -- and the City, I believe, their position is, what kind of signal is that going to send to the other residential -- to the other providers of housing? And they are going to say, "well, PRECISE REPORTING SERVICE (800) 647 -9099 50 1 PS -RA 00222 s O O O O O O 1 2 3 4 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Pacific Shores can walk in there and get this, then we can get this, too." Well, the thing about reasonable accommodation, Mr. Allen, is that it's a fact - intensive, basically one -time deal only. It is to be considered by the Applicant on the facts that are presented and circumstances that are presented. It may have precedential value in later proceedings if there are similar situations. But it doesn't lock the City into anything, all right, other than, in this particular instance, a request for reasonable accommodation was granted. So to follow the City's logic that if you grant our request to be treated as a single housekeeping unit their whole Zoning Code is undermined is a fallacy. Because other courts have said in similar situations -- in similar situations - -- and I'll give you an example called Tsombanidis -- for the Court Reporter, it's T- s- o- m- b- a- n- i -d -i -s -- versus City of West Haven, which is an oxford House case. "Where the Court finds that the requested accommodation was reasonable in light of the fact that Oxford House Jones Hill operates in a manner similar to a single family residence, and the residents need to live in group homes PRECISE REPORTING SERVICE (800) 647 -9099 51 PS -RA 00223 1 O 2 3 O 5 6 7 O 8 O O O O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 located in single family districts removed in the areas where persons in recovery can readily obtain drugs or alcohol. ^Moreover, the city's zoning regulations already treat unrelated persons as a single family so long as they are three or less in number, and the regulations impose no numerical limitations on the number of related persons who can give live together a single neighborhood." So it's illegal in California to place numerical limitations on what constitutes a family. There's a case called Adamson versus City of Santa Barbara, and that case involved 12 people living in a house. And the City has crafted an Ordinance for a new definition of single housekeeping units that pretty much tracks every other municipality in the State of California that uses it, except they put in a provision that says, "Unless they have a unitary lease, that they can't be considered a single housekeeping unit." Well, with group homes and with providers of housing for people who have disabilities, particularly with alcoholism and drug addiction, it is impossible to have all the residents on one lease. They all come in at PRECISE REPORTING SERVICE (800) 647 -9099 52 PS -RA 00224 ! 1 ! 2 3 ! 5 6 7 8 i • O A 41 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 different times. They leave at different times. They get kicked out for violation of the rules. So a reasonable accommodation in terms of the single housekeeping unit would be to request a waiver of this particular provision. And that doesn't undermine anything. what it does is it is a recognition that group homes and group home providers have special and unique needs that need to be addressed. Now -- and that is the reason why the City has recommended that Pacific Shores not be granted a reasonable accommodation to be a single housekeeping unit. And that's the reason that the City proffers is undermining its Zoning Code. And I submit to you, Mr. Allen, that that those are insufficient reasons. And unless the City can demonstrate how the entire fabric of the Ordinance 2008 -05 would be undermined by the granting of that, then I think you are compelled, sir, to grant our request for reasonable accommodation in terms of that. The City says that we should not be -- our request not to be treated as a residential care facility should also be denied, because the City has enacted a zoning scheme that only classifies people with disabilities as being a residential care facility. It does not apply to families. It does not PRECISE REPORTING SERVICE (800) 647 -9099 53 1 PS -RA 00225 1 ® 2 3 4 • 5 6 7 • 8 9 10 • • • • • • 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 apply to non - disabled people. It is only a classification of those residences and those -- and that type of housing that provide housing or housing or services to people with disabilities. This isn't the forum to litigate this, or -- but I'm going to tell you that that is discriminatory on its face. it's treating groups of disabled people differently than group of non - disabled people, and the Fair Housing Act prohibits that. So when you have a classification as a group residential facility and say that they can only set up as a matter of right in certain zones, then that is denying housing opportunities to those types of people. And to say that Pacific Shores should not be granted a reasonable accommodation, or at least a waiver from that classification, merely because -- merely because disabled people live there is not a reason to deny the request for a reasonable accommodation, because that is discriminatory. The City has police powers to regulate rooming houses; boarding houses, fraternities, sororities, private clubs, in part because these types of uses do not provide housing to persons with disabilities. And persons with disabilities are specifically a protected class under the Federal Fair Housing Act. PRECISE REPORTING SERVICE (800) 647 -9099 54 PS-RA 00226 d • 2 3 4 • 5 6 7 • 8 9 • 10 11 12 • 13 14 15 ® 16 17 18 J E E r.� 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 I often get asked about, well, what about the students that live together? Don't they get the same thing? And the answer is no, they don't, because they are not protected under the Federal Fair Housing Act. So when you start classifying uses based on a -- based on the class of people that are living there, and that those classes are specifically enumerated in the Fair Housing Act, then you start running into problems. If the concept is difficult to grasp, I often say, "If you don't understand it, just substitute 'race' for disability.,,, So if you had -- if this was a matter of race or national origin, people would be standing up and saying, "This can't be." But because it's people with disabilities, it's okay? No, it's not. I don't think there's any question that the population that Pacific Shores provides housing to is disabled. I don't think that's in question in any of these -- in any of these findings or any of the discussion in the report. The City admits that -- the City does not question the need for sober housing, but the City also, at the same time, says, "But we need to regulate it. We need to put conditions on them. We need to keep them out jof sight, because people in our City don't like the fact that they're present- But we can't kick them out, so PRECISE REPORTING SERVICE (800) 647 -9099 55 PS -RA 00227 F II ! 2 3 4 A 5 6 ! ! A • A A A p 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 what we're going to do is make it as difficult as possible for these facilities to exist in Newport Beach, and maybe they will get tired of having to come in and ask for permission to live here." Because basically this is what the City has created is a zoning scheme that requires providers of housing for people with disabilities to ask for permission to come in and either stay where they are or ask for permission to have a certain number of people living there. Now, this isn't asked of anybody else in the City of Newport Beach, and I don't believe the Fair Housing allows in these circumstances a provider of housing to ask for permission. Pacific Shores has been where it's been prior to the enactment of this Ordinance. This is part of the reason why we asked as an accommodation that it be treated as a non - conforming use. If you grant our request that it is a non - conforming use, then I think what that means is we go back to what it was prior to the enactment of this Ordinance and apply those standards as if this were 2007 or 2006, and not 2009. Let me just say this, Mr. Allen, in all group home situations, parking is always problematic. It's the type of problem that can always be -- in my experience, PRECISE REPORTING SERVICE (800) 647 -9099 56 I PS -RA 00228 LA 11 ® 2 3 4 O 5 6 7 8 9 10 11 12 • 13 14 15 A 16 17 18 A 19 20 21 ® 22 23 24 • 25 PUBLIC HEARING - 3/25/2009 can always be remedied. It can always be worked out with the housing provider, with the residents, in terms of what's reasonable. And I don't think you need to be acceding to the City's request to put parking restrictions on us. I think that can be worked out without the imposition of any kind of conditions. The City says it has authority treating Pacific Shores as a legal non - conforming use. I disagree with that. If it was a non - conforming use, then we wouldn't be here. If the City was treating it as being legal, we wouldn't be here. We wouldn't have to be asking for a reasonable accommodation. We wouldn't have to be asking that the provisions of the Ordinance not be applied to Pacific Shores. Let me just say something about the Code provisions that we're asking a waiver of. The Code provisions -- and Ms. Wolcott spent a lot of time about the Fire Code and about the fire classifications. I can tell you this. These Codes are not tailored, narrowly tailored to the specifics needs of this specific population. Courts have looked at across the board fire restrictions. And there's a case called Marbrunic versus City of Stowe. It's a Sixth Circuit case. And the Sixth Circuit said, "When you look at the imposition of Life PRECISE REPORTING SERVICE (800) 647 -9099 57 PS -RA 00229 i 2 3 4 0 5 6 ® 7 s 4 8 9 10 11 12 13 14 15 16 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 and Safety Codes, you have to take into consideration the nature of the disability, and you have to narrowly tailor those Life and Safety Code provisions to the ability of the residents to respond to an emergency." So basically what Ms. Wolcott is asking you to do, Mr. Allen, is to impose commercial Fire Code requirements because the State Code says so. I'm saying that that is not so. Because reasonable accommodation can be made to tailor those requirements. And part of what we've asked -- and maybe this is something that can be worked out -- is to treat -- is the application of the Fire Codes as if it were a single - family or two- family use, which was our request was. The City goes the other way and says, "It has to be done as an R -3 or maybe an R -4," whichever one deals with sober facilities of this size, which is basically the imposition of a commercial Fire Code requirements. This is not narrowly tailored. It's just, "You look at the book. This is what it says. You apply it." That isn't what the courts say. That isn't how the courts say that you have to deal -- that the -- how these type of code requirements are applied to groups of people with disabilities, that the nature of the PRECISE REPORTING SERVICE (800) 647 -9099 5B PS-RA 00230 .J 11 s 2 3 4 O 5 • 8 9 O 10 11 1 O O • O 12 13 14 15 16 17 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 disability has to be taken into account, and their ability to respond to the particular emergency has to be taken into account. And I would submit that if the City, you know,. that if this were -- if the house is a -- one, is a legal use in an R -2 -- R -2 zone, and it's got all the Life and Safety requirements that is required of a use in an R -2, that that should be sufficient, because that will take in consideration what, the City feels is protection for the other dwellings in the neighborhood. This is not an institution. And I take great exception to Ms. Wolcott talking in terms of Pacific Shores being an institutional use. This is not a campus, all right? If we had the diagram back up there, this is on the corner of Orange and Clay. Directly across the street, which is cut off at the top of the photo, are commercial uses. There's a power plant across the street. There's multi - family dwellings across the street. Orange Avenue is the dividing line between either multi - family and commercial use and R -2 uses. So right there on the corner is where it changes. So when you look across the street, you've got different uses. Now, this is the zone that it's located in. This is the zoning that the City is discussing. However, PRECISE REPORTING SERVICE (800) 647 -9099 PS -RA 00231 i I ® 2 3 4 • 5 6 7 • 8 9 . 10 • • • • • 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 when the overall neighborhood is taken into consideration, you need to take into consideration that directly across the street is an office building, is a power plant, and is a multi - family structure. So -- and to say that those three houses are somehow or have another v an overconcentra tion of the disabled people living there and that creates an institutional use is truly affecting a disservice to those people who live there. Because they work. They get out in the community. They take care of the houses. The houses are absolutely immaculate. They are beautiful. The insides of the houses are beautiful. And to say that somehow or another this creates an institutional use is really coming to the typical stereotyping of having groups of disabled people living under the same roof. Let me just say this. There is an ongoing -- ongoing issue with this construction and what the State Fire Marshal has done. I believe 'that if our requested accommodation is resembling somewhat in the form in the numbers that we're requesting, these issues can be resolved and can be resolved peacefully. There's ongoing controversy about this unpermitted construction. As to when it started, we believe that it was brought into play when the City cited PRECISE REPORTING SERVICE (800) 647 -9099 NOR PS -RA 00232 MI i 2 3 4 5 6 7 b 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING — 3/25/2009 Pacific Shores with violating the moratorium. The moratorium is also -- and that conduct.is also part of our lawsuit. So to a certain extent, yes, this is relevant information for you to have; on the other hand, the nature of the controversy and how the City has gone about it is a matter that's being litigated, and we would hope that if our request for accommodations are requested, that those will easily be resolved. MR. ALLEN: what is your understanding of where this Code enforcement issue with that single - family dwelling stands? And what is your client doing or not doing to seek to gain approval of the work that was done, if you know? MR. POLIN: well, to a certain extent, it's a situation of the dog chasing the tail. we believe that we have submitted what has been required. The City says otherwise. So we're in this ongoing debate as to what it's going to take to satisfy the City. MR. ALLEN: Has been going on for well over a year, it looks like. MR. POLIN: Yes. MR. ALLEN: It puzzled me as to why you would be here making application and when you were at that stage? PRECISE REPORTING SERVICE (800) 647 -9099 XE PS -RA 00233 • • • • • • 0 ! ! 1 2 3 4 5 C d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. POLIN: Actually, the thing with the Fire Marshal is a recent event. That happened last fall. Before that, it had to do with unpermitted construction. We believe that we had the requisite permits to do the construction. The City says that we didn't. That we believe that the construction started -- that we got permission to start the construction in 2006. The City said that you've got the permits, but you didn't do the construction. It's really an issue that doesn't have a place here. The Fire Marshal and the reclassification is a recent event, which I don't want to -- to be honest with you, Mr. Allen, I don't want to get into it, because it -- there are legal issues involved in it that aren't really necessary, other than the fact MR. ALLEN: I wasn't asking so much about the Fire Marshal thing, as such I'm puzzled why it.'s taken so long to get Code compliance with a use that you want to take. MR. POLIN: It's a situation where, at one point, we thought it was resolved. City tells us !otherwise -- MR. ALLEN: Okay. MR. POLIN: -- all right? We're trying to get it resolved. PRECISE REPORTING SERVICE (800) 647 -9099 62 PS-RA 00234 • • • • I' 2 3 :1 5 6 7 8 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 This brings us to the last issue to continue operating in an R -2 zone when this is only a permitted use in an MFR with a use permit. If you go along with what the City is proposing with the reasonable accommodation, that is a denial of our reasonable accommodation request. We're not requesting an accommodation from one house. We're not requesting an accommodation from 12 beds. We're requesting an accommodation for all three houses. The City is proposing to you to basically close down the other two houses. That's not an accommodation. It's does not even come close to being an accommodation. Let me say this. I know Ms. Wolcott told you what was going on with our reasonable accommodation request. I didn't get this report until late Monday night. We made our request last September. Between September and now, there have been intermittent requests for additional information. Some of the information we do not -- we did not provide,.because we do not believe the Fair Housing Act requires us, as an Applicant or a request for a reasonable accommodation, to provide such information. MR. ALLEN: Do you believe you do not have to supply that financial information in order to analyze the issue about hardship, and that's part of this? PRECISE REPORTING SERVICE (800) 647 -9099 63 PS-RA 00235 a 1 2 3 4 5 6 7 f 8 9 i 10 11 12 r 13 14 C 4 15 16 17 18 19 20 21 a 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. POLIN: It depends. The financing information -- our thrust of the request for reasonable accommodation had to do with -- our initial thrust had to do with we wanted to be treated as a single housekeeping I unit. We weren't claiming the financial necessity. That's where that information -- that's where that information would come into play, if we said it was necessary to have X amount of people because it was financially viable to have X amount of people in the I house. What we wanted it treated as is a single house. That's what our initial request was. There's been a lot of back and forth between myself and Mr. Brancart, who is my co- counsel, and the City about amending. And as you can see, there have been subsequent amendments to our request for reasonable accommodation, because we're trying to work with the City on this: Now, nowhere -- this notion of, "We're only going to recommend 12 beds," came out of the blue. The other thing, Mr. Allen, is that the law is pretty clear about request for reasonable accommodation being acted on promptly. This zoning scheme -- this Ordinance is the City's creation. It's not my creation, all right? PRECISE REPORTING SERVICE (800) 647 -9099 64 PS-RA 00236 L. 01 ® 2 3 4 • 5 6 7 ! 8 9 • 4 • • ! M 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 And so whatever issues that the City has in terms of implementing the Code, in terms of processing either use permits or request for reasonable accommodation, is not my problem. Any undue delay in acting on a reasonable accommodation request is considered to be a denial of that request. And I'll cite you to probably the seminal case that's called Groome versus Jefferson Parish. It's a Fifth Circuit case. Even if you were to grant the request today as we requested it, our request is the courts would still say it doesn't make any difference, because your request was denied, because there's been an eight -month delay or seven - month delay in acting on the request. I don't want that to happen. All I can tell you is that the way the City loaded up the conditions and the information on this fifth request isn't a reasonable accommodation. Bringing in the use permit requirements to ask you to consider those requirements as part of our reasonable accommodation request is not a reasonable accommodation. And basically, I believe it taints the hearing and undermines the purposes, according to USC 3604BF3, which is the reasonable accommodation provision. And I don't believe the courts allow that type of interjection, because it's not necessary to the analysis for reasonable PRECISE REPORTING SERVICE (800) 647 -9099 65 PS -RA 00237 1 i 2 3 n i 5 6 7 i S i i i i ". Plus 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 accommodation requests. To compare us -- to compare Pacific Shores to those -- to those applicants that have applied for a use permit and say, "Well, this is what -- the information they have provided because it's required in the use permit," when the Code -- when their own Code provision says this is what you are to consider in terms of the information, and me, being the Applicant, is required to provide, sort of like stands the reasonable accommodation provision and the reasonable accommodation process on its head. And the City can't come in here and say "Ignore what Title 20" -- and I think it's .94, I may be wrong, "says, because this is what we want you to consider. This is how you should evaluate this." That's wrong, and it's not -- they are the ones who wrote the ordinance. You, as a Hearing Officer, should hold their feet to the fire as to what they wrote and what is required, and not just bring in the dump truck and dump a bunch of stuff that doesn't belong in here. Like I said, we've applied for an accommodation for all three houses. The City is saying that we'll only give you an accommodation for one house with 12.beds. Let me tell you something else, Mr. Allen, because the City brought this up. This occupancy PRECISE REPORTING SERVICE (800) 647 -9099 am PS -RA 00238 • 1 2 3 • • • • • • • • • 4 5 6 7 ,_ t 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 requirement that the City has, two per bedroom, plus one house manager, that's how they covered it, it's illegal. Case called City of Edmonds versus Oxford House, 514 U.S. something. It's a Supreme Court case. It dealt with occupancy requirements. It says, "It is illegal to treat -- to impose occupancy requirements on unrelated people that are different from related people. It has to be uniformly across the I board." What the City is doing is saying that groups of disabled people are being treated in terms of occupancy differently than groups of either unrelated, non - disabled people, or related people, or maybe even related disabled people. It's illegal. And for them to come in and say, "The number that they are entitled to is 12 because they have six bedrooms," is not only illegal but it's unreasonable, and it cannot be sustained on a reasonable accommodation analysis. MR. ALLEN.. Maybe the City will address that when they get back up. I thought those standards applied to all uses, not just to the -- MR. POLIN: No. MR. ALLEN: -- disabled. MR. POLIN: No, they 'don't. PRECISE REPORTING SERVICE (800) 647 -9099 C-i►1 PS -RA 00239 II • 2 3 4 • 5 6 7 • • • • • • O • 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Okay. So what we're asking for, Mr. Allen, is that our request for reasonable accommodation be granted. And if it's going to be the City said that it should be -- we should be recommended under our request number three and number five, if it's under either of those requests, then we want our accommodation for all three houses. If you think that we're entitled to a reasonable accommodation to be treated as a single housekeeping unit because what we're asking for is to be treated like a family and to waive this unitary lease requirement, then I would be very happy if you did that. Nevertheless, we have five requests that we've made. Two of them the City has said they don't oppose. One of them though, which they don't oppose they have such a litany of conditions on it that if you granted what the City is asking, that, in effect, denies our request for reasonable accommodation. And basically what the effect will be when we talk about what may be necessary to afford a person an equal opportunity to enjoy and use a dwelling will be denying 38 people, potentially, maybe less than that, an opportunity to use and enjoy the dwelling that they are currently using mainly because they have to be evicted. And I don't think the Fair Housing Act will PRECISE REPORTING SERVICE (800) 647 -9099 ME PS -RA 00240 pl ® 2 3 4 5 I 8 9 • 10 11 d i A O 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 allow the granting of an accommodation that results in people being denied -- who are already living there denied the opportunity to use and enjoy the dwelling of their choice. Not just any dwelling, the dwelling of their choice. Thank you. MR. ALLEN: One quick point. With respect to non - conforming use, you said the City granted you number three, non - conforming use, that you'd be perfectly happy. As I hear the City describing that, they are saying that if -- you are anon- conforming use according to their standards, but that it would be required for you to obtain one of the use permits if you were a non - conforming use in that zone. MR. POLIN: Well, I think what we're asking for is that we be treated as a non - conforming use, and there be a waiver of the use permit requirements. If you grant that accommodation, I don't think we would be subject to the use permit requirements. I think we'd go back to the pre -2008, basically. That's.what we're asking for. We're asking to be granted -- actually, what the request was, which they didn't put it in here, is so that we be grandfathered in. We want to be grand €athered in. MR. ALLEN: I saw that your request said you PRECISE REPORTING SERVICE (800) 647 -9099 M PS -RA 00241 i S 2 3 4 5 6 7 i 0! O i 8 9 10 11 12 13 14 15 16 I 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 wanted to be grandfathered in, and that artful legal term .caught me. But I do understand, and maybe the City can respond to that when they respond to your comments. MR. POLIN: Thank you. MR. ALLEN: Thank you. MR. BOBKO: Mr. Allen, would you like me to respond now, or would you like to take public comment? MR. ALLEN: I think that we have a lot of people here. And if you can -- if you have your notes, let's get started with the public hearing, with the recognition that both you and the Applicant will, after we close the public hearing, have the opportunity to I comment. So, please state and spell your name for the I record. MR. SOYLEMEZ: Sure. My name is Mustafa Soylemez, S- o- y- l- e- m -e -z. I live at 407 Bolsa Avenue, and I do have a written prepared statement for the record that I'd like to read to you. However, before I get there, Mr. Allen, I'd like to make two points, actually counter - points, to the Applicant's claims. And they are very, very specific, but they are just fallacies as he described them. First of all, he stated that Orange Avenue, the top of that graphic or picture you see there, is mixed PRECISE REPORTING SERVICE (800) 647 -9099 ®1 70 I PS -RA 00242 • • • • 0! 2 3 4 5 I 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 use and that is patently false. There are townhomes located right across there. What i believe the Applicant was trying to say is that Old Newport Boulevard, which is actually on the left side of the picture, is multi -use, and that is, in fact, true. However, as you can see, the properties in question are Orange and Clay, not Old Newport Boulevard. So that's number one. MR. ALLEN: Right. MR. SOYLEMEZ: Number two, I challenge his definition of what a complex or an institution is. One thing he artfully neglected to mention to you is that the back of all three properties are open, meaning it's an adjoining property. This, by very definition, creates a campus feeling. That is what a campus is, okay? It is unrestricted access. That's, in fact, where most people go to convene and smoke and talk and discuss, and things like that. Those are the two points. Okay. Now, I'll read my written statement. As the City is aware, the owner is operating without permits. MR. ALLEN: I'm going to give you an extra ten seconds, but I wanted to say -- because I forgot to say it in the beginning - each person has three minutes to make their comments. PRECISE REPORTING SERVICE (800) 647 -9099 71 PS -RA 00243 s ! i ! 4 1 2 3 4 5 N E 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. SOYLEMEZ: This is exactly three minutes, so let's start right now, okay? As the City's aware, this owner is operating without the permits. Whether it's NBMC or others, there are also many Building Code, Fire and Zoning violations. This operator opened a facility during the moratorium, and has been violating not only the letter but the spirit . of our law since Day one. I know all this, because I have lived 25 yards away at 407 Bolsa for the last four years, and I see what goes on there daily. Today, I'm not going to speak about those violations. The City will address those issues. Rather, I'll focus on the direct negative impact the situation has had on my home life and community. Most importantly, it's altered the composition of our neighborhood, which I believe is at the very heart and crux of this hearing. There are now approximately 40 living in a footprint that was designed and zoned for two single- family homes. This operator has illegally transformed two dwellings originally designed for 12 or less, six in each home, into an illegal complex that !houses 40. What kind of impact does this thing overcrowding have on me? Consider the metaphor. Think PRECISE REPORTING SERVICE (800) 647 -9099 72 PS -RA 00244 s it 2 3 4 5 6 10 11 12 13 14 15 16 17 18 OW 24 • 25 PUBLIC HEARING - 3/25/2009 of a car on a side street joining traffic on a highway. During non -peak times, there are generally no problems. A car simply gets on the ramp and joins traffic seamlessly. But what happens, say, at 5 p.m., during rush hour? The amount of cars wanting to get on the highway doubles, quadruples. And pretty soon, cars are completely backed up. Traffic stops. Noise increases. Pollution increases, and the delays melt. Why does this happen? Because the roads and the area in general just aren't built to handle this. It's inevitable. When you exceed something's design specs, you'll get systematic failure. That's exactly what's happening in Orange and Clay, and it pervades into all parts of our essential life. People coming up at all hours, foot traffic, noise, smoking, trash, constant deliveries, cars doubled- parked. It's incessant and it's completely disrupted our neighborhood. Here's some specific examples. First of all, there's always lots of noise. At least four times in 108, I've walked over there to ask members to be quiet. Or on one occasion, when I asked for the person's name, they refused. This happened in late July of 108. PRECISE REPORTING SERVICE (800) 647 -9099 73 PS -RA 00245 19 20 21 22 OW 24 • 25 PUBLIC HEARING - 3/25/2009 of a car on a side street joining traffic on a highway. During non -peak times, there are generally no problems. A car simply gets on the ramp and joins traffic seamlessly. But what happens, say, at 5 p.m., during rush hour? The amount of cars wanting to get on the highway doubles, quadruples. And pretty soon, cars are completely backed up. Traffic stops. Noise increases. Pollution increases, and the delays melt. Why does this happen? Because the roads and the area in general just aren't built to handle this. It's inevitable. When you exceed something's design specs, you'll get systematic failure. That's exactly what's happening in Orange and Clay, and it pervades into all parts of our essential life. People coming up at all hours, foot traffic, noise, smoking, trash, constant deliveries, cars doubled- parked. It's incessant and it's completely disrupted our neighborhood. Here's some specific examples. First of all, there's always lots of noise. At least four times in 108, I've walked over there to ask members to be quiet. Or on one occasion, when I asked for the person's name, they refused. This happened in late July of 108. PRECISE REPORTING SERVICE (800) 647 -9099 73 PS -RA 00245 Il 2 3 4 5 6 7 Y 1 i r • O iI 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Second, there's always trash on the street on the front. There's no one that can help over there. There's no super. There's no manager. There's no accountability. Third, we have Bolsa Park where children are very close by. It is 40 by 50 feet long. Group home residents like to walk over there, smoke, and then discard butts in the stand, even in front of kids. I know these individuals -- MR. ALLEN: You need to wrap, and you're going to submit your written comments? MR. SOYLEMEZ: Yes, sir. I know these individuals are from the complex, because I personally have seen them walk from the homes to the park. Just today, as I measured the dimensions of the park, I found these. The pack was on the slide, and the butt was in the sand. And this is very common. There are more example, but others will share them. To close, I ask the fancy, high - priced attorney over there, how long did he spend at the property really witnessing these things? Did he spend years? Months? weeks? Even days? Okay. Did he spend any time there at all? Well, guess what? I have been there, and I live there. And, therefore, I've been noticing these things day and night for years. PRECISE REPORTING SERVICE (800) 647 -9099 74 1 PS -RA 00246 • 1 r 2 3 4 5 6 7 0 8 9 r 10 11 12 r 13 r r r r r 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 As such, I believe any defense of the situation by the attorneys and operator must be heavily discounted. Whose testimony is more material? Who's in a better position to account for the communities impact than me and my other fellow residents? Attorneys who fly in from D.C. on the day of hearing, or people who actually, honestly and legally live there day in and day out? As such, I hope you'll strongly consider my request to not grant this operator the reasonable accommodation. Thank you. MR. OBBAGE: Good afternoon. My name is David Obbage. Last name is spelled 0- b- b- a -g -e. I would also like to respond to one of the things that the Applicant's attorney had just mentioned, but I'd like an extra 10 seconds, if I may. I'd like to talk about that concept of loading up. Well, the Applicant is accusing the City of loading up on the conditions and requirements imposed on this property. The loading up actually started when the operator decided to load up the number of occupants on this corner at Clay and Orange. As I said, my name is David Obbage. i live at 3307 Clay Street, which is next door to the three building sober living compound located at the corner of PRECISE REPORTING SERVICE (800) 647 -9099 75 PS-RA 00247 i 2 3 4 i 5 6 i 7 8 9 i 10 i i i i i i 11 12 13 14 15 16 11 0 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 clay Street and Orange Avenue in Newport Heights. Over the past two years, our community has expressed its concerns about the operation of this facility and the negative impacts that it has had on our I neighborhood. The primary reason that we are opposed to this group home facility is based on facts and not speculation. For example, on the morning of November 6, 2007, an officer from the Orange County sheriff's Department came to my home at 7 o'clock in the morning looking for information about a resident from 3309 Clay Street, which is located directly next to me and is part of the boarding house sober living facility that we are viewing today. The officer informed me that the individual they were looking for was being sought by law enforcement for misdemeanor and felony drug- related charges. The officer also informed me that these type of suspects are allusive and hard to find because they move from house to house within the drug and alcohol group network in 1Newport Beach What about the issue of overconcentration? We're not sure how many recovering addicts are actually living in this facility. And we're now estimating that there are almost 40 people that are living in the three' PRECISE REPORTING SERVICE (800) 647 -9099 76 1 PS -RA 00248 rn Lj Il • 2 3 4 • 5 6 • 7 8 9 ® 10 11 12 ! ! ! ! ! 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 houses at any one time. This corner used to have two homes with two families living on them when I bought my house. Now we have three buildings, accommodating up to 40 people living there. And is this what the City of Newport Beach intended when they established the R -2 Zoning District for this area and this neighborhood? Another legitimate concern we have is that the triplex of sober living homes is located one block from our local nursery school. who is conducting the background checks on the individuals that are living in the facility? There have been several other instances of loud profanity, secondhand smoke problems, and suspicious activity that have occurred since this operator bought the property and started operating a boarding house, and now it's a sober living facility. I urge to you deny this application and force the Applicant to adhere to the zoning requirements and Building Codes that are in place for our community. I appreciate your giving me the opportunity to address you today at the hearing. Thank you very much. MS. FABIAN: Good afternoon, Mr. Allen. My name is Lisa Fabian, F- a- b- i -a -n, F, as in Frank. I PRECISE REPORTING SERVICE (800) 647 -9099 77 1 PS -RA 00249 n A 2 3 4 R s W u -1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 reside at 3301 Clay Street, which is right on the corner closest here. And I want to share a couple of issues that have impacted my neighborhood, myself, and my family. Number one, a couple of years ago, I observed a young gentleman that was living in his car on the side of my home on.Bolsa and Clay. And for two weeks, I tried to catch this individual, who, by the way, was doing drugs in his car. I witnessed, from my second floor bedroom, he was smoking. He had needles. I don't know all what he was doing. But I did report it to the Newport Beach Police Department. And after two weeks, they finally found him about 11 o'clock at night sleeping in his car. They addressed this individual, and found in possession he had some sort of an address stating that he was a resident at 3309 Clay Street. They approached the residence, knocked on the door. The gentlemen that were there would not open the door, as they said they would be breaking the law or the rule. So they were asked to come out through the back, identify the individual. And sure enough, they had 'identified that he was asked to leave the home, because he was actually doing drugs, and he was kicked out. So he started to live on the street next to my home. PRECISE REPORTING SERVICE (800) 647 -9099 WE PS-RA 00250 5 6 7 8 9 10 s W u -1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 reside at 3301 Clay Street, which is right on the corner closest here. And I want to share a couple of issues that have impacted my neighborhood, myself, and my family. Number one, a couple of years ago, I observed a young gentleman that was living in his car on the side of my home on.Bolsa and Clay. And for two weeks, I tried to catch this individual, who, by the way, was doing drugs in his car. I witnessed, from my second floor bedroom, he was smoking. He had needles. I don't know all what he was doing. But I did report it to the Newport Beach Police Department. And after two weeks, they finally found him about 11 o'clock at night sleeping in his car. They addressed this individual, and found in possession he had some sort of an address stating that he was a resident at 3309 Clay Street. They approached the residence, knocked on the door. The gentlemen that were there would not open the door, as they said they would be breaking the law or the rule. So they were asked to come out through the back, identify the individual. And sure enough, they had 'identified that he was asked to leave the home, because he was actually doing drugs, and he was kicked out. So he started to live on the street next to my home. PRECISE REPORTING SERVICE (800) 647 -9099 WE PS-RA 00250 t s A • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Also, I did experience the 7 o'clock in the morning knock on the door by the sheriff, you know, interrupting our family lives. Also, smoking, trash. I also I have two dogs that I walk two times a day. And I also observe an individual leaving one of the residence and hiding a bottle of liquor behind a plant at the park where the children play on Bolsa Street. I did pull the bottle out, and I don't have it as evidence right now, but I can tell you that that did occur. Also, there was an accident that occurred about probably last year sometime, and my neighbor is not here, but I'd like to read to you a statement that he gave to me to represent on his behalf. His name is Tony Camacho, and he resides at 3305 Clay Street. Camacho is C- a- m- a- c -h -o. Sometime in August of 2008, after an accident of a drunk driver crashed into the home on -- it's 492 Orange Street, this is -- my neighbor spoke with the owner, the senior and junior, regarding the crash. And he smugly, as he was proceeding to clean the damage, stated that he would not be surprised if the City had sent or paid someone to crash in his property with a drunk driver. I'd like to submit this to you as evidence that Mr. Camaeho -- this was a conversation that he had with PRECISE REPORTING SERVICE (800) 647 -9099 79 1 PS -RA 00251 P1 • 2 3 4 5 6 s 7 8 9 10 11 12 1 Y 13 14 15 16 17 18 19 20 21 r. PUBLIC HEARING - 3/25/2009 this individual. And more importantly, this is the type of person and type of individual that we're having to deal with. Thank you very much. MR. RUSH: Bob Rush. Now that we've heard from the residents local to the compound, I thought I'd come up and just make a couple quick commepts here. As a 24 -year resident of Newport Beach, I've seen a lot of changes since 2000, the advent of channeling drug and alcohol recovering addicts into our neighborhoods. Some of this stuff -- some of the laws are developing as we go forward. I don't know that right out of the gate we're going to be 100 percent, you know, fully developed in our local Municipal Codes. So, you know, the expectation that we have it perfect right out of the start is, I think, unreasonable on the part of the Applicant's attorney. Regarding the Applicant's -- some of the statements the Applicant's attorney mentioned, he wants a broad qualification. He wants a broad approval,.to be considered. He wants broad approval, excuse me, on reasonable accommodation request, and he wants to be considered a single- family residential unit. But I don't know of any -- there's no structure PRECISE REPORTING SERVICE (800) 647 -9099 AM PS-RA 00252 22 23 24 25 r. PUBLIC HEARING - 3/25/2009 this individual. And more importantly, this is the type of person and type of individual that we're having to deal with. Thank you very much. MR. RUSH: Bob Rush. Now that we've heard from the residents local to the compound, I thought I'd come up and just make a couple quick commepts here. As a 24 -year resident of Newport Beach, I've seen a lot of changes since 2000, the advent of channeling drug and alcohol recovering addicts into our neighborhoods. Some of this stuff -- some of the laws are developing as we go forward. I don't know that right out of the gate we're going to be 100 percent, you know, fully developed in our local Municipal Codes. So, you know, the expectation that we have it perfect right out of the start is, I think, unreasonable on the part of the Applicant's attorney. Regarding the Applicant's -- some of the statements the Applicant's attorney mentioned, he wants a broad qualification. He wants a broad approval,.to be considered. He wants broad approval, excuse me, on reasonable accommodation request, and he wants to be considered a single- family residential unit. But I don't know of any -- there's no structure PRECISE REPORTING SERVICE (800) 647 -9099 AM PS-RA 00252 01 • 2 3 4 • 5 6 • 7 8 9 • 10 11 • • • 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 in the City, no single- family structure in the entire City that houses 50 individuals. None. Yet, he wants; this accommodation now to be considered. Even if you got this reasonable accommodation, you still have basically -- you have basically two buildings that were built more like dormitories or boarding houses. And then you have a third -- you have a single - family structure at 3309 Clay. But when it comes to Building and Fire Code, he wants to be specifically exempted because of some special criteria that he wants to apply. So he wants broad approving, but he wants specific exemption from the Fire Code. Now, Ms. Wolcott failed to mention that the Fire Code -- State Fire Code and Building Code was recently defended in Federal Court, May of 2008.. I think she probably had the specifics. But it was found to be non - discriminatory in its state, and it is applicable to all R -41.s and all R- 4.11s. That's Building Code and Fire Code classification; not to be confused with Zoning Code classification, which has this property as an R -2, which two -- two units. We are here today based on one individual's word that he is treating drug and alcohol patients or ex- patients in this facility, one individual by the name PRECISE REPORTING SERVICE (800) 647 -9099 [YN PS-RA 00253 i r 2 3 4 A 5 • O O i n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 of Mark Manderson, I believe. And without his testimony or without his assertion that he's treating these individuals, we wouldn't be here, because this might be otherwise considered a boarding house or some other structure. So -- I mean, I think it's critical to the hearing that we have some kind of attestation from the Applicant that this is, in fact, one hundred percent of these residents are truly drug and alcohol recovering addicts, and that there's no admission of other individuals that are not drug and alcohol. And my last point that I'd like to make is that -- and this is my one last point -- I don't believe I've done a lot of -- I'm not an attorney. I've done a lot of reading on reasonable accommodation. I don't believe in all my readings of what reasonable accommodation is trying to do, I don't believe reasonable accommodation was designed to be an excuse for prolonged and intentional violation of laws, and that's what we have here. We have a prolonged and intentional violation of a number of laws for a number of years. And now at the late stage, the Applicant is saying, wI'd like to now qualify under reasonable accommodation, because I'm only treating these addicts." And I don't think that PRECISE REPORTING SERVICE (800) 647 -9099 Im PS -RA 00254 '1 2 3 4 i 5 i a i s r 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 that's -- I think that's a misapplication of what the intent of reasonable accommodation was designed for. I'd like you to please consider that. MR. ALLEN: Thank you. Let's see. It's 4 o'clock, and we're schedule to go until 4, but we certainly have a ways to go with public hearings. Does staff have any input on that? MR. KIFF: We don't have our room conflict today, Mr. Allen. So we can continue if you wish. MR. ALLEN: Good. Should we take a short -- let's let our ex- council member go, and then we'll take a short break. MR. NICHOLS: I'm Dick Nichols, and I'm from Corona del Mar. I'm familiar with the property, but I haven't reviewed everything in the last little bit. I would like to first bring up the single housekeeping unit. I believe that the Federal law says that a single housekeeping unit of six or less is -- we consider that as a special unit. When it's over six, that dropped, okay? He's talking about 50. Single housekeeping unit of 50, all of a sudden, has -- so there's no upper limit on this. This was decided also in the lawsuit by the City just recently. I mean, that's how they rated Sober Living By The Sea. PRECISE REPORTING SERVICE (800) 647 -9099 83 1 PS -RA 00255 i i i i i i i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 The second thing I would say is that this is semi - ridiculous, because you've got two R -2 lots along Clay, and that's 18 and 20, and a single - family on Orange. And the point of the matter is, is that you can't take lots in any city in existence and say, "Well, I have these two, and they are altogether, so I just want to have this considered an R -4." That has to go through the City's zoning process. And how in the hell is this guy has the audacity to say, "Well, I can just combine these altogether. And because I put sober living people in this thing, I'll just say it's a single household "? Now, there's no basis for any of those things to be done. This shouldn't even have ever gotten this far. Then the second -- then another aspect of it is the two R -2 lots are joined. To my knowledge, that was never rezoned in the City. I was on the Board at that time, and that's not legal. And it wasn't enough room between the lots. Now, they did give a little bit of extra space on Orange than I think that they needed to as a duplex there, because that would a side yard. But nevertheless, the space between the buildings is not 6 feet. And the tying together of the two as R -21s -- individual R -21s is illegal. I mean, that's not -- how that ever got through PRECISE REPORTING SERVICE (800) 647 -9099 1:12 PS-RA 00256 1 2 3 5 6 7 S 8 f 10 11 12 13 14 15 16 J 71 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 this far is beyond me. Now, when they did the R -1, then they wiped out the property line in the back. Well, so now they made this into a single lot, but it isn't zoned that way. I mean, this is -- can I make an apartment building on any three lots in the City? Why don't I pick someone in Corona Del Mar? That's good spot. Or somewhere else? And I'll just take three lots, and I'll make an apartment building out of it without rezoning or anything else. And I'll say, "Well, gee. Depends on who I put in it." This doesn't make sense at all is what I'm saying. And the last thing I would say is as to Fire Safety Codes, The Fire Safety Codes are designed to make the people safe. These Codes are designed so that the people living in these structures will not get burned to I death, that they will not have unreasonable lifestyle because of the fact that they are not living in a safe environment. And so that's a State law, that the Fire Codes come down from the Fed. They are known throughout, and they apply to buildings depending on their usage. And this is a usage of 50? This is a hotel environment. This is not anything else. Thank you. PRECISE REPORTING SERVICE (800) 647 -9099 [is PS -RA 00257 7A N • 2 3 4 O 5 i • • • • • • 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. ALLEN: Thank you. Let's take five minutes, and then get started again. (Pause in proceeding.) MR. ALLEN: All right. Back on the record. MR. BROWNING: Good afternoon. My name is John Browning. I live at 3256 Broad Street, which is just around the corner from the compound. And I would characterize this as -- it's not really a request for a reasonable accommodation. It's a request to allow a hotel or real a.prison in our residential neighborhood near a nursery school and down the street, about three or four blocks, from Newport Heights Elementary School. The lack of parking around here, the street parking, is something always filled. I've got a 6- year -old and an 8- year -old who are, you know, new bike riders. Not very good bike riders. And this is an entry to a residential neighborhood, so that's car traffic. And when you have cars parked on both sides of the skinny street, Clay Street, you try to cross over on Bolsa, it's really dangerous. And it's because of these cars, because there's 40 or 50 people living here parking their cars out on the street. The solution offered by the staff is to allow them 12 units or 12 beds. But it's a solution that's PRECISE REPORTING SERVICE (800) 647 -9099 P5 -RA 00258 n Al ® 2 3 4 S 5 6 7 d A 110, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 based on trust of people that have proven that they can't be trusted. They have started these homes without authorization by the City. They've violated,Building Codes. The staff report details many instances. i They've opened up a sober living home across the street from my house that people walk from the Clay Street address down Bolsa and left on Broad, back and forth all the time. And that part. -- that property is not subject of today's hearing, but it's the same property, the same people, and there's people going back and forth all the time. The concept of institutionalization is a concept that's applicable to how these people are living. The concept of.a sober living home is to put people in a residential neighborhood, in a residential setting, and allow them to interact back into society, which is fine. But when you put people in a hotel or a dormitory with, you know, 40 people or 50 people in these small houses -- these aren't 20,000 square foot hotels. These are small. They swished them together. That's the institutionalization aspect. And then finally, I say that we need to stop, pretending that these are disabled people. They are criminals. They are here on probation. The prisons are crowded, and this is a slippery slope. Wait until the PRECISE REPORTING SERVICE (800) 647 -9099 87 1 PS -RA 00259 ! 1 ! 2 3 ! ! ! ! ! 4 5 6 7 II 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Governor orders or the prison system orders the release of drug offenders and felons. Where are they going to put them? Out on street? No. They are going to a sober living home claiming that they have a drug addiction, when it's really an addiction to money and an addiction to committing crimes. And those are the people that are going to be coming to our city. And it's just a matter of time before one of these people commits a real serious crime on a, you know, a kid from Newport Heights. Thank you. MS. MORRIS: Good afternoon. My name is Lori Morris, M- o- r- r -i -s. I just wanted to begin by saying that the Applicant from the beginning has -- this has been many years we've been watching this house, several years. Longer than 2007. From the time they started building this compound, you know, watching it as it's being built, looking at the processes that it's going through, they never followed City procedures as far as their permitting. I mean, I'm sure the City has brought forward, you know, all -- and there's pages of these problems in the permit with Clay. I was able to bring up -- this is Clay, I think -- no, this is Orange and also Clay Street. PRECISE REPORTING SERVICE (800) 647 -9099 ME PS -RA 00260 01 ® 2 3 4 5 6 7 ! 8 9 ! 10 11 12 ! 13 14 15 ! 16 ! ! 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 It's constant. And it was just like a catch- me -if- you -can attitude. They would go about their business. They would go into their offices until somebody would report them. They would start building without permits until somebody would report them. So this Applicant from the beginning has been untruthful in their putting forth what they want to have happen at this facility, and it is a large group home facility. It began with "My parents are going to be living there." Then it went to -- and this is said to the City employees that asked, "Okay, what's going on here ?" -"My parents are going to be living here." Then it's, "No, no. I'm going to turn it into a rental, but I'm going to dictate what those renters are going to be able to do. One of those is they can't drink." I have a rental. I can't legally tell my renter he can't drink. That's illegal. It's a rental. He can do -- he's paying his rent. Smoking, I think there's some issues with the smoking back and forth. But each time he was caught and said, "Well, you can't -- or you can't do that, or you can't say this," he would then move on to what was the next best beneficial answer there was for him. PRECISE REPORTING SERVICE (800) 647 -9099 M PS-RA 00261 s 1 2 3 4 ® 5 6 7 i 8 9 s 10 11 12 13 14 15 16 17 18 I 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 We've got to this point -- I mean, by his own admission, he's brought this up -- this informational letter alone should be grounds for denial. Over and over i he has said, you know, "It's this one thing." You know, "No alcohol. Most residents are using their bicycles or will be using their bicycles." How can he state that with conviction, say that I've got this rental, and they are going to be using their bicycles? You can't say that legally or put across to the community, "I have 5o people, and they are all going to be using a bicycle." That's not true. I mean, that letter alone shows who the Applicant is. This is what he put forth, and it's in the record. Now, you know, you move forward with the operating, and this is -- and he wants to operate it as a family style. As Dick Nichols brought up, fifty people is not family style. That's -- the definition by ADP and everybody else, Federal and everybody else, six and under. And that is agreeable. No one here wants to discriminate against people who want to get well, that have an addiction and want to get well, and should and are allowed by Federal law to do that an our neighborhoods. What they have created with this is an institutionalized medical facilities. Because these PRECISE REPORTING SERVICE (800) 647 -9099 UTA PS -RA 00262 :J 1 ® 2 3 4 5 6 7 8 9 10 i r 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 people, even though they are after -- you know, they are done being -- going through the process, they still have, you know, issues that have to be accounted for. So I would say that this Applicant has been untruthful to the City. They cannot -- you cannot move forward with what they are giving, even their attorney, as truth. So I ask that you take that into consideration, and I thank you for your time this afternoon. MS. KOHLER: Hi. It's Cynthia Kohler. I've been doing this for quite a few years, and that's just one thing, Mr. Allen, I wish you consider. He wants to be considered a family. And there's 50 people in this home. And who knows who are in these homes? How do we know who are in these homes? He doesn't answer to anybody. He's not licensed. So how do we know who is actually in these homes? He's asking for special accommodation. well, he doesn't want to give up his information of who he is housing. So why should we do this for him after he hasn't followed the rules, and we have no idea who are in these homes. The other consideration is that every single operator down here on the Web site advertises alternative sentencing. That is my concern and has been my concern PRECISE REPORTING SERVICE (800) 647 -9099 91 PS-RA 00263 1 i 2 3 4 ® 5 6 7 a 8 9 10 i 11 12 13 14 15 ® 16 i • 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 all along. They get by probationary parolee because of alternative sentencing. And not only do they have drug and alcohol problems, they can have forgery, spousal abuse. And they get that expunged if they go into these homes. So I just wish you would consider all of that when you take this in. Thank you. MS. OBERMAN: Denys Oberman. I'm a resident, and I'm speaking on behalf of a citizens' group, Concerned Citizen of Newport Beach. The group became aware of this facility almost three years ago, because the residents had contacted us and told us that they had issues with this compound being built, and that there were clearly issues of Code violation, which they reported repeatedly to various departments of the City in efforts try to get this I checked and get it under control before construction was completed and was occupied, and there was no results that were forthcoming. During the Ordinance development process, the attorney that we had gotten to help to work with the City, which the City asked us to do and we did, to develop ordinances also observed this facility and reviewed the permits and physically reviewed the facility, and -- along with the forensic architect, did, PRECISE REPORTING SERVICE (800) 647 -9099 92 1 PS-RA 00264 n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • PUBLIC HEARING - 3/25/2009 in fact, confirm that the facility had numerous Code violations. You know, neither I, personally, or our group are aware of all the things the City has done, but the bottom line of it is, as a number of people have already testified, this business operator has demonstrated factually a disregard for the laws of the City. There is nothing in the law anywhere, in Federal or State law, that obligates the City to provide any sort of accommodation to a business that deliberately thumbs its nose at the laws of the City. These laws are so far away from being discriminatory to individuals, the City of Newport Beach, and in particular in this impacted area where this facility is located, is more overconcentrated than any other city in California. And furthermore, the City of Newport Beach for the last nine or ten years has enforced no regulation against group residential uses of this type, residential care and treatment facilities, or non -state licensed sober living homes. The City endeavored to make a fair and equitable Ordinance and also fulfill its duty to protect the public when it enacted an ordinance in 2007, actually beginning of 2008. Unfortunately for us all, at that PRECISE REPORTING SERVICE (800) 647 -9099 PS -RA 00265 I i 2 3 4 i 5 6 7 i S i i S i P 9 10 11 12 13 14 is 16 17 is 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 point in time, there was already a condition of severe overconcentration, which institutionalized the Balboa Peninsula, West Newport, dense residential neighborhood. And now we're confronted with trying to deal. with that. But the bottom line of it, Mr. Allen, is that this operator, as a business -- has nothing to do with the individuals in the facility -- the business has been repeatedly in an illegal status. And so we feel that the fair and reasonable thing is to deny the reasonable accommodation, because the business is there on an illegal basis and has been since its inception. Thank you, sir. MS. HANNA: My name is Mary Hanna. I live at 511 Orange Avenue. He addressed the complex across the street. MR. ALLEN: Would you spell the last name, please? MS. HANNA: H- a- n -n -a. MR. ALLEN: Thank you. MS. HANNA: Just for the record, it's not a complex. There are seven townhomes. There are 2.1 person per unit. So I don't think it's as dense as he was talking about, the 50 people across the street. I brought my property in 1998. At that time, PRECISE REPORTING SERVICE (800) 647 -9099 94 1 PS -RA 00266 ! ! ! ! ! ! ! ! ! 1 2 3 4 5 0 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 there was one single house on Clay. I, with all my other neighbors, were concerned when they started building these two huge homes. And you could tell from the outside there was only one car garage. I mean, you can't build a house like that in Newport Beach and not have but a one car garage. And I went to the City and said, "What is this going on? we've got this huge home, supposedly, and no parking for this home." And they said, 110h, well, they did this and they did that." Well, unfortunately, I live across the street. And my family and my visitors have no place to park, because they're parking across the street. We have way too much trash, way too much parking. It's impacted our neighborhood. It's terrorized our families, because these kids and these young teenagers with tats, and everything else that you see every place else, but they are nasty, and they are very abusive, and have been to my family and have been to friends of mine. And I just find it almost -- I want to say terrifying to walk outside, because you never know what you're going to see across the street. Anyway, I just I think you're doing a disjustice to your citizen, to your people you pay taxes PRECISE REPORTING SERVICE (800) 647 -9099 95 1 PS -RA 00267 El 7 1 2 3 4 5 6 7 i 8 9 i i 10 11 12 13 14 15 i 16 17 18 i 19 20 21 i 22 J 7 23 24 25 PUBLIC HEARING - 3/25/2009 here, and to the people that bought in and have lived in here and wanted to go along and be family and take care of a family and do the right things, and then you let these people walk in and just destroy our neighborhood. I just think it's despicable. MR. ALLEN: Is that for today? No one else needs to speak? Okay. Let's close the public hearing. And at this point, let's let the Applicant respond to these comments, if he wishes to do so. And then the City can respond to both the public hearing comments and the comments that the Applicant has made both before and after the public hearings. MR. POLIN: Thank you, Mr. Allen. Who asked me earlier about -- comment that the City attorney made that we did not provide financial information? This is -- let me tell you. This is the question on the reasonable accommodation application. "If the applicant is a developer /provider of housing for individuals with disability -- with a disability, please explain why the requested. accommodation is necessary to make your facility economically viable in'light of relevant market and market participants. PRECISE REPORTING SERVICE (800) 647 -9099 EEN PS -RA 00268 1 ® 2 3 • 5 6 7 • 8 9 • • • • • A 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Please provide documentation, if any." Our response was, "Pacific Shores objects to this request, and Applicant for reasonable accommodation is not required to compare or make necessary in light of" -- my printer went heywire here -- "in light of relevant market and market participants. "Accordingly, it's not" -- Basically we said it's not our place. It's not our job to provide data comparing the relevant market and market comparisons in order to request this request to be considered and be granted. Basically what it says is they want to compare -- they want us to compare us to other facilities. First of all, it's not our job to go out and compile this data. The relevant inquiry would be is, is the accommodation -- are you requesting the accommodation to make your facility financially viable? And leave it at that. If it was, we would have provided the information, but that isn't what it requested. It wanted a comparison of surrounding facilities, and do we -- and for us to gather data. That is not the responsibility nor -- of an Applicant or requested for reasonable PRECISE REPORTING SERVICE (800) 647 -9099 97 1 P5 -RA 00269 ! ! ! ! ! ! ! 1 2 3 4 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 accommodation, nor is it, I believe, required by the Fair Housing Act to do so. This is something the City created and made as a condition, and we objected to it. And it's not necessary to provide. So, it is misleading for the City to say that we refuse to provide financial data when that is not what the question was. And that is not what the requested information was. ` Mr. Allen, I've been doing this kind of work for almost 20 years. I participated in numerous -- been present at numerous hearings, either Zoning hearings or hearings before City Council. I have heard citizens who have a.stake in their community come forward and say what they believe should be done, expressed their fears, expressed their concerns. And to be honest with you, sir, it doesn't change from community to community. I'm not saying that what has been said here is right. I'm not saying what has been said here is wrong. What we have here is the essence of participatory democracy. Everybody gets an opportunity to come up here and say their peace, regardless of if I agree with their opinion or regardless if I disagree with their opinion. However, you have a different job as a decision - maker. Because your job is to put aside the PRECISE REPORTING SERVICE (800) 647 -9099 a PS -RA 00270 1 S 2 3 i r s i 4 5 6 7 8 �j 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 unsubstantiated fears and unsubstantiated stereotyping that you hear, and deal with this issue on the facts that are presented and the law as presented to you. It puts you in a difficult position, because you're not supposed to be swayed by emotion and not supposed to be swayed by numbers, comparing the numbers for or comparing the numbers against and the reasons for it. This is comes as no surprise to you that this is a hot button issue in Newport Beach. it has generated a lot of anger. It's generated a lot of animosity. It's generated rooms and rooms and rooms and rooms and rooms and rooms of paper, as I can attest to. I have to carry what I -- the City provides me on a flash drive, because the paper is too much. It boils down to what the law requires and what the facts are. And sometimes what the law requires and what the facts are don't go along with what the public sentiment is. And that's basically what we have here. I don't think it's necessary for me to address anything that the people have said here, because, as I said before, they have a right to say it, whether I agree with it or whether I don't agree with it. I think what the City has compiled, what the City has brought forward, what I have compiled, what I have brought forward, is PRECISE REPORTING SERVICE (800) 647 -9099 PS-RA 00271 E 1 C 2 3 4 5 6 7 • • • 0 • • • • 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 what you need to consider. I will say to you -- and at the sake -- at the risk of repeating myself from what I said earlier, the City's recommendation of granting a reasonable accommodation that reduces -- that basically shuts down two houses and reduces one house to 12 beds is not a reasonable accommodation. I'm not saying, maybe, 50 beds is a reasonable accommodation. However, I think it's necessary that all three houses remain in play; that they be available to provide housing for the recovering addict and alcoholic. The Fair Housing Act recognizes the commercial nature of providing housing and providing -- group home providers. It recognizes that -- recognizes not everybody is doing this for strictly altruistic motives. Not everybody who comes and applies for reasonable accommodation is a nonprofit. And sometimes the only choice is to go to a -- what some courts have called a commercial facility. But commercial facilities are entitled to a reasonable accommodation just as much as a non- commercial facility is. There are issues that have been raised by the City. And to a certain extent, I think by the citizens as to who is running this, is it how it's going to be run, that, you know, can be sat down and discussed with PRECISE REPORTING SERVICE (800) 647 -9099 100 PS -RA 00272 1 i 2 3 4 • 5 6 7 • 8 9 10 • • • • • • • 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 the City and worked out. We're not trying to say that, you know, we're above the law. But I don't think the City is above the law either. Is there issues that, obviously, in terms of condition that the City wants imposed, that I don't think are necessarily, reasonable or legal in terms of what it wants to do. But those are things that can be worked out. The bottom line is, Mr. Allen, is our request reasonable? And I submit to you that it is. Regardless of which way you go, Mr. Allen -- and it's not going to cause an undue burden, financially or administratively. I think that's already been conceded. And it's not going Ito fundamentally alter the City's Zoning Code. And it's necessary so that people who are living there can continue to live there and know that their sobriety and their recovery will not be interrupted because of eviction. What the City wants you to do is say, "We'll give you 12 beds. Everybody else has to leave." Well, that's causing a massive disruption in the continuity of one's recovery. And the eviction is not because of being forced to leave, and it's not because of anything these individuals have done. It's because this is what the City wants it to be done. It's forced loss of housing. PRECISE REPORTING SERVICE (800) 647 -9099 101 1 PS -RA 00273 W F] w R J 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 But one of the things that the courts always analyzed is that, is the Applicant requesting the City to I provide them with housing, or they asking for an accommodation? we're not asking the City to provide us with housing. We're not asking the City to build us housing. We're asking the City to let us remain. That's what we're asking the City to do. Thank you. I don't know if you have any questions. All right. MR. BOBKO: Good afternoon, your Honor. Just going to make a couple of quick comments. First one is, is Mr. Polin, with the rhetorical flair, said, "We can just substitute 'race' any place where we are talking about disabled people." And I'd like to bring that back down a little bit and say let's substitute single housekeeping unit, because that's really what we're talking about here, and it has nothing to do with anything else, really. And to that more directly, the idea that somehow folks are.being denied the right to live in specific zones is actually not true. The only people who have the opportunity to have a group residential use in a residential zone are folks who are able to seek a reasonable accommodation or sober living homes. We don't allow any of the other types of uses there. PRECISE REPORTING SERVICE (800) 647 -9099 102 PS-RA 00274 I • 2 3 4 • 5 6 7 • 8 1 • • • • • 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 We don't allow boarding homes, sororities, fraternities. None of those type of uses are allowed at all. So this type of use has actually gotten a more favorable treatment under our Ordinance than any other type. In fact, no other type is permitted at all. The idea that this is a one -time event, and, well, if we let this go with the single housekeeping unit, you know, it's just this one time. There's an Ordinance that the City Council has agonized over where the -- where the complete the call of the Ordinance, the subject to which the Ordinance is directed, is this specific situation. So the City -- again, I don't think we need to emphasize this too much, but our position is that if we do toss the single housekeeping unit requirement i overboard, then, in fact, this is going to fundamental alter the purpose of this Zoning Code. The idea that someone is going to be put out on the street tonight if your decision is not what the Applicant asks for, I think is, again, somewhat inflated rhetoric. In fact, that's not the case at all. No one will be evicted. The City has undergone this process over quite a period of time, and there has been due notice given to the Applicant, whereby the implementation -- and PRECISE REPORTING SERVICE (800) 647 -9099 103 PS -RA 00275 1 • 2 3 4 • 5 6 7 • 8 • • • • • • 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 Mr. Kiff, I'm sure, can go through this in atomic detail. But there's really three different things that can happen. The implementation of the Ordinance would not take effect until the last contract with the business expired, the lease expired, they could seek an amortization period, which would extend the time period so that no one was put out, or they could seek a reasonable accommodation or use permit. And, of course, as the Applicant has already stated, they did not seek a use permit. So that the idea that someone is in a bed tonight or might not be in that bed tomorrow is a bit of an exaggeration, I believe. There will be no immediate impact on these folks. In fact, the Applicant has had time to.plan through that. The last point I want to make is the Applicant has suggested that the case of Oxford versus City of Edmonds stands for the proposition that it is illegal for the City to state how many folks can be in a particular house or room and what not. And although I claim -- I think I'm sure, Mr. Polin might have been the one to actually argued that case, and I don't claim to have the intimate knowledge of it that he does, I do have the case here in front of me. PRECISE REPORTING SERVICE (800) 647 -9099 104 1 PS -RA 00276 0 0 i 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 And as I read through the Code that was actually questioned there -- and this is from 514 U.S. 725, Supreme Court case, 1995, the Code at issue there said, and I'm quoting now: "The Code provides that occupants of a single - family -- of single - family dwelling units must compose, quote, a family. And defines family as, quote, persons without regard to number related by genetics, adoption or marriage, or a group of five or fewer unrelated persons." I don't think the City of Newport Beach is anywhere close to that. We're talking about a single I housekeeping unit, where the only thing that has -- the I only relation has to be a common lease, really, when you get down to it. The other thing, if you look at our Code Section 20.91A.050, the section where we talk about -- and the exact -- I'm sorry. Let me go back, 20.91A.050(c)(2). And our Code states: "There shall be no more than two residents per bedroom, plus one additional resident. Notwithstanding upon request by the Applicant for additional occupancy, the Hearing Officer has the discretion to set occupancy limits PRECISE REPORTING SERVICE (800) 647 -9099 1051 PS -RA 00277 S w 1 2 3 4 5 6 e1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 based on the evidence provided by the Applicant that the additional occupancy is appropriate at the site." So there's no hard and fast rule. We're not asking for blood tests. The Hearing Officer has the discretion to find up or down from that. Moreover, the whole title of that section is Development and Operational Standards. This is simply a planning guide. So it gives the planners an opportunity or a chance or a baseline from which to make determinations that otherwise would be, you know, almost unmakeable. So the idea that the City has gone and asked these operators only to put so many people in each bedroom and has somehow related that to the genetics, 1 adoption, marriage, or a group of five or fewer persons, that question in the City of Edmonds case, is again making a bit of a stretch. So I will now lateral to staff, if they have any of the particular building or staff -type related questions that perhaps you'd like to have addressed. I will relinquish it to them. MR. ALLEN: Ms. Wolcott, are you going to talk at all? MR. BOBRO: She is, of course. PRECISE REPORTING SERVICE (800) 647 -9099 106 1 PS -RA 00278 �J I ! 2 3 4 ! ! O ! ! 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. ALLEN: Will you allow that? MS. WOLCOTT: Try to stop me. MR. BOBKO: i won't. MS. WOLCOTT: I wanted to clarify the recommendation as to the current residents. if you look at page 38 of the staff report and the summary of request number five, it says, "AS to the current residents, all five required findings can be made. The Applicant did not report the average length of resident stay. Staff recommends granting an accommodation that permits all current residents to reside in the facility for the remaining duration of their stay, to a maximum of six months. Staff recommends that as current residents complete their stay and clients move out, facility operation be consolidated into a single dwelling unit with 12 resident clients and one resident manager.. Consolidation should occur as soon as possible, within a maximum period of six months from the day the Resolution of Approval if adopted by the Hearing Officer." So that was the staff recommendation. There was no move to evict current residents. PRECISE REPORTING SERVICE (800) 647 -9099 107 PS -RA 00279 • • s • • • i S 7 2 3 4 5 6 d 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. ALLEN: What if it's not adopted by the Hearing Officer? MS. WOLCOTT: If it's not adopted by the Hearing Officer, then that is something that would be dealt with in an abatement setting and amortization extension There's a number of ways to deal with that in the Municipal Code. MR. ALLEN: Okay. MS. WOLCOTT: I would also add one thing on the necessity element. Mr. Polin has discussed the fact that he feels that the reasonable accommodation, because it is it has been asked, has to be granted. And I would remind the Hearing officer of the requirements of necessity and of reasonableness. What's reasonableness? A finding of reasonableness requires, as we've discussed, that it not fundamentally undermine the purpose the Zoning Code. And necessity, if you look at the case of Lapid- Laurel, LLC, v. Zoning Board of Adjustments of the Township of Scotch Plains, 284 F.3d, page 442, 3rd Circuit, the Third Circuit Court of Appeals held that it's the plaintiff's burden to show necessity, and said, "The necessity element requires the demonstration of the direct linkage between the proposed accommodation and the equal opportunity to be provided to the handicapped PRECISE REPORTING SERVICE (800) 647 -9099 108 PS -RA 00280 P 1 2 3 4 5 6 7 B 9 ® 10 r A S 11 12 13 14 15 '0 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 person." They specifically, in the Lapid- Laurel case, look at a 95 -bed elder care facility. And they did find that in this case, the elder -- the elderly disabled people did require accommodation in order to live in a residential zone. In that case, it's specifically a single- family residential zone. However, the Court specifically said that as to the size of the facility, they had not demonstrated necessity as to the size. They had said that in order to show that, the applicant would have to show that the size would serve a therapeutic purpose and would, therefore, ameliorated an-effect to the hardship of the handicapped. And second, that the facility's size was necessary for the facility's financial viability. And the Court equated financial viability with giving the disabled equal opportunity to live in a residential neighborhood. And I agree with Mr. Polin that the question on the reasonable accommodation application is perhaps not stated as clearly as it could be. But the information we were looking for is, what do you need to be financially viable? Because that is what the Federal cases require us to look at. Thank you. PRECISE REPORTING SERVICE (800) 647 -9099 109 1 PS -RA 00281 1 ! 2 3 4 ! 5 6 7 ! 8 ! • • • • • 9 10 11 12 13 14 15 16 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. ALLEN: One question. You're recommending the Hearing Officer grant the non - conforming use determination; is that true? MS. WOLCOTT: As we interpret it to be. i MR. ALLEN: Well, that's what we need to address. Because it's clear that Mr. Polin has quite a different interpretation of that than you do. MS. WOLCOTT: After hearing Mr. Polin's interpretation, it sounds like he would like to have the laws that were in place prior to January 22, 2008, applied to his client's facility -- MR. ALLEN: Right. MS. WOLCOTT- -- which he was welcome to try to comply with any time prior to January 22, 2008. And I don't believe that the way the Code is written is that non - conforming uses in residential districts, any of them, go through this process. That's what our Code allows. And we have not analyzed an accommodation from that and treating them as they would have been treated in 2007 -2006, because it was not clear that that was what the request was. MR. KIFF: Clarification, Mr. Allen, IMs. Wolcott? It's my understanding that if they were granted the right to be a non - conforming use, they would go back PRECISE REPORTING SERVICE (800)647 -9099 110 P5 -RA 00282 i 1 i 2 ! i i ! ! ! 3 4 5 6 d Iffil 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 to the point at which many of the folks who have gone through the use permit process would, in other words, be required to go through that use permit process. Because that ordinance is non - conforming uses in residential districts, and it sets forth the use permit process. Is that your understanding, too? MS. WOLCOTT: Yes. We went through the on- the -spot analysis of how we would treat this facility if it was 2007. Every facility that had more than seven residents and was reported by the Applicant, and that appears to be all of them, would have been required to apply for a Federal Exception Permit from the City. The Federal Exemption Permit had some different standards. We still, you know, have those standards around. But it was very similar to a combination -- the FEP was very similar to a combination between a use permit and a reasonable accommodation. And it did have some elements in it that could be considered -- they weren't required to be considered. But an element -- one element that could be considered is whether a campus was created. Under the definition in place at that time, this would have created a campus, because it was three or more buildings that were using one building for a common purpose for all the rest of the residents. As I understand, they were all PRECISE REPORTING SERVICE (800) 64779099 111 PS -RA 00283 Y. 1 S 2 3 4 i 5 6 7 8 9 10 11 12 13 14 15 16 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 using the pool and patio area. MR. ALLEN: Okay. All right. Thank you. MR. KIFF: I have just one question of the Applicant. I'm confused as to how many people reside there today. Mr. Polin spoke about -- he had a couple different statements where he said 38 people would be evicted. I just want to understand how many people reside there today, and if 3309 is not occupied, but 492 Orange and 492 1/2 Orange are occupied? MR. POLIN: We don't have that information today. As to the exact numbers, we think it's somewhere in the neighborhood of between 30 and 40. MR. KIFF: Thank you. MR. POLIN: And there's I want to correct the record on something. And I'm always doing this about the. City of Edmonds case. City of Edmonds case was about an occupancy -- it was about an exemption in the Fair Housing Act that had to do with occupancy standards. It didn't have to do with the definition of family that Mr. Bobko read. The City of Edmonds tried to state that their definition of family and their cap of unrelated persons in there constituted an occupancy requirement which would exempt it from the Fair Housing Act. Supreme Court said no. An occupancy PRECISE REPORTING SERVICE (800) 647 -9099 112 I PS -RA 00284 1 ! 2 3 ! ! ! ! 4 5 6 7 8 9 10 11 12. 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 requirement is basically a square- footage -type requirement . as applied equally to related and unrelated persons alike. It has nothing to do with the definition of family. So I just wanted to correct that. Thanks. oh, one other thing in terms of what Ms. Wolcott said. This notion of we're not kicking anybody out today is somewhat of a misnomer. Basically they are saying you've got six months to leave. It has nothing to do with the preparation of what's. going on. We have applied for a reasonable accommodation. We expect to get a reasonable accommodation. So, what has occurred and what are -- what is required of Pacific Shores and the people who live there has nothing to do with, "Well, you know, they didn't apply for a use permit, so they are out of luck." You know, the Code provides another mechanism for dealing with this, and that's with a reasonable accommodation process. So why should the residents be penalized because they opted to go for reasonable accommodation as opposed to a use permit? And why should the residents be penalized and be able to go to sleep tonight knowing that, "Well, at least I'm going to be here tonight," but knowing that at in six months they are out of there? That's an unreasonable condition, and that's still an PRECISE REPORTING SERVICE (800) 647 -9099 113 1 PS -RA 00285 0 • O 0 0 • l 2 3 4 5 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 eviction, MR. KIFF: A couple more brief comments, Mr. Allen. Mr. Polin mentioned one statement about that the City's ordinance is designed to, quote, keep them out of sight, meaning people in recovery. And I wanted to remind, at least, the public this process and this Ordinance is approved to date 233 beds with more in the pipeline. And they're beds all throughout our community, especially on the Balboa Peninsula, where the overconcentration exists. And then there was a gentleman, Mr. Browning, who had stood up and said that these are pretend disabled people. And I wanted to reject that comment officially. The City recognizes that folks in recovery are disabled and entitled to the housing protections under the Fair Housing Act. With that, I think staff has concluded its comments. MR. ALLEN: All right. Thank you all for participating and presenting your thoughts and ideas and all the legal analysis. And now, it's my turn to decide what to do here. And I believe this facility, as it's been analyzed by the staff, is basically not entitled to the PRECISE REPORTING SERVICE (900) 647 -9099 114 1 PS -RA 00286 0 1 2 3 i r i r 4 5 6 d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 reasonable accommodations that are being sought. As we've learned repeatedly here, the law requires government agencies to grant reasonable accommodations to disabled persons, and it's clear that, in all of these situations, the staff has not questioned whether the occupants of these units are now not disabled. So there's no question before this Hearing Officer about whether we're dealing with disabled individuals or not. We're accepting that they are. So in each of the findings that need to be made, the finding will be made that disabilities are present. The real questions have to do with the necessity for the reasonable accommodations and whether the requests are reasonable in each instance. The staff took the first two together, request one and two, because the definitions so intertwine as between the single housekeeping unit and the request to be classified or treated -- or not to be treated, I should say, as a residential care facility. And I think that it's very clear that the definition of the single housekeeping unit is simply not met by these uses. Mr. Polin objected to the notion that one of the requirements of the City is that the occupants all be subject to one lease. But that is the definition PRECISE REPORTING SERVICE (800) 647 -9099 115 1 PS -RA 00287 s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 that the City has adopted. And so far as I know, it's not illegal. whether it's being litigated is not my area to be concerned with. I haven't been told that it's illegal, and, therefore, I accept that it is. I think the most compelling part of the request number one and two is that there is -- it is a fact, in my estimation, that there would be a fundamental alteration to the City's zoning scheme if the single housekeeping unit definition and the reasonable accommodation or, excuse me, the classification as a residential care facility was disregarded. Because it appears to me that the residential zones are pretty much based upon, in substantial part, those definitions and requirements. And the staff report does a good job of setting that out. So that's really a fundamental part of my determination. All the usual issues, as Mr. Polin pointed out, are present in this one, like they are probably in most cities everywhere. But they are still issues, and they are significant. The public discussed the parking issues, which are present, as well as some conduct that was unacceptable. But in any event, that denial of the request one and two is made. Going on to reasonable accommodation request number three, which is the determination about legal PRECISE REPORTING SERVICE (800) 647 -9099 116 1 PS -RA 00288 1 • 2 3 4 5 6 7 s 8 9 10 11 12 • 13 14 15 ® 16 17 18 A A 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 non - conforming use, I think I understand. And the Resolution that is ultimately adopted needs to articulate the City's position in that respect, and not somehow constitute a basis for the Applicant to argue that by granting this accommodation, which is recommended by the City, is granted with that proviso that it not go back to become a use that was prior to the recent zoning Ordinance amendment, and, therefore, it becomes a legal conforming use now and could, thereby, continue to operate as such. If they wanted to be a non - conforming use, then they should have applied for the permit required by the Ordinance, in my estimation. The reasonable accommodation request number four with regard to the application of Codes of the Zoning Code, clearly, once again, the analysis that's done on the definitions in one and two equally applies I there. The Building Codes, the same issue applies with respect to the City can't grant a waiver of the California Building Code. And so to the extent that those requirements are applicable, they have to be applied to all uses and clearly to the care facility uses as well. So that would be denied. Number -- let's see. We're at number five. PRECISE REPORTING SERVICE (800) 647 -9099 117 PS -RA 00289 ! ! • ! ! ! ! 1 2 3 4 5 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 And this is a little bit more difficult from my perspective because it came in at the last minute and recognized by all, for a variety of reasons, nobody's at fault. It just came in very late, and so staff has not done a complete or as complete an analysis of this request as might have been done. But I believe that Resolution findings can be crafted, based upon the findings in -- certainly in one and two and the request by the Applicant to be exempt from the Zoning Code residential requirements entirely, that a support can be made for not grant requesting number five as made. So with that, I have not certainly articulated everything that needs to be in this Resolution to make the proper findings. But the staff report speaks well to all of those issues, and I would expect that a Resolution be prepared that contains the findings set forth in the staff report, which I believe are adequate to support a denial of all five of these. Any comments or concerns from staff? MR. KIFF: Clarification, Mr. Allen. On number five, your direction is to not grant or to deny reasonable accommodation. Does that include the City's alternate recommendation as 12, or does it include -- it's of the entirety of it? 118 PRECISE REPORTING SERVICE (800) 647 -9099 PS -RA 00290 1 i 2 3 4 i 5 6 7 i 8 i i i i i i O 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PUBLIC HEARING - 3/25/2009 MR. ALLEN: I believe it has to, Mr. Kiff, and I I'd love to see if the parties can get together and work this out, but that's not my job. MR. KIFF: I see. MR. ALLEN: And the City has made an effort to make a proposal, but the Applicant has, out of hand, rejected that proposal. And so I don't have the ability to unilaterally impose the City's suggestions on him. I think it would be an excellent compromise if that could be done. And if it can be done, I'd be happy to revisit as the Hearing Officer. But I gained the very distinct impression that, at this level, decisions need to be made on these applications, and that's,what I'm doing. MR. KIFF: Understood. MR. ALLEN: All right. Any other comments or I concerns? UNIDENTIFIED SPEAKER: Can the public make a I statement? MR. ALLEN: No, I don't think that's appropriate now, because we'd just end up get back into a legal discussion and debate. So thank you very much, all of you, for your respectful time and attention. The hearing is now closed. (Ending time: 6:05 p.m.) PRECISE REPORTING SERVICE (800) 647 -9099 119 PS -RA 00291 J Lj s E 0 0 E E 1 2 3 4 5 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, the undersigned, a Certified Shorthand Reporter for the State of California, do hereby certify: That prior foregoing proceedings were taken . before me at the time and place herein set forth; that any witnesses in the foregoing proceedings, prior to testifying, were placed under oath; that a verbatim record of the proceedings was made by.me using machine shorthand which was thereafter transcribed under my direction; further, that the foregoing is an accurate transcription thereof. I further certify that I am neither financially interested in the action nor a relative or employee of any attorney of any of the parties. IN WITNESS WHEREOF, I have this date subscribed my name. Dated: APR 0 6 2009 4&a a A. Millsapp, RPR CSR No. 9266 PS -RA 00292 w 0 PS-RA 00293 J rl i 11 6 El G A abatement 24:24 29:10 108:5 abide 12:5 ability 23:2 28:3 58:3 59:2 119:7 able38:21 88:24 89:17 102:23 113:22 absolutely 60:12 abuse 92:4 abusive 95-19, acceding 57:4 accept116:4 acceptable 39:9 49:9 accepting 115:9 access 71:16 accessible 40.25 accident 79:10,16 accommodate 14:6 34:12 40:18 accemmod.,.. 77.4 accommod... 4:5 5:20 5:25 6:6,8 6:14 8:4 11:19 13:14,19 13:20,22 14:19 15:24 16:5 16:15,15 16:18,20 16:24,25 PUBLIC HEARING - 3/25/2009 17:13,19 17:21 22:9 23:7 24 :23 30:9,13 31:2,7,8 32:15,20 32:22 34:3 37:14,18 37:21,22 37:24 39:1 42:16,18 47:20,25 48:4,6,8 48:10,15 49:8,12 51:3,12,22 53:3,11,19 54:15,18 56:17 57:12 58:8 60:20 63:5 63:6,7,8,9 63:11,12 63:14,22 64:3,17,22 65:4,5,17 65:20,20 65:23 66:1 66:9,10,21 66:23 67:18 68:2 68:6,9,18 69:1,18 75:10 80:23 81:3 81:4 82:15 82:17,18 82:24 83:2 86:9 91:18 93:10 94:10 96:19,23 97:4,18,18 98:1 100:5 100:7,8,17 100:20 102:4,24 104:9 107:12 108:11,24 109:5,20 110:19 111:17 113:11,12 113:18,20 116:10,24 117:5,14 118:23 accommod... 13:25 14:2 40:1 41:7 61:8 115:1 115:4,14 account 59:1 59:3 75:4 accounts... 74:4 accounted 91:3 accurate 120:12 accusing 75:18 achieve 15:16 22:23 30.15 35.11,14 achieved 35:24 36:10 acknowledge 40:5 Act 13:23 14:12 47:22 48:7 49:23 50:17 54:9 54:25 55:4 55:8 63:20 68:25 98:2 100:12 112:19,24 114:17 acted64:23 acting65.5 65:13 action 9:21 120:15 activities 20:21 39:12 activity 77:15 Adamson 52:13 add 24:13 45 :2 108:9 addict 16:9 100:11 addiction 16:12 49:25 52 :24 88:5 88:6,6 90:21 addicts 76:23 80:10 82:10,25 additional 10:13 63:18 105:22,24 106:2 address38:7 39:25 40:4 40:14 42:13 44:11 67:20 72:12 77:21 78:16 87 :7 99:20 110:6 addressed 40:6 53:8 78:15 94:16 106:21 addresses 31:14 adequate PRECISE REPORTING SERVICE (800) 647 -9099 Page 1 118.18 adhere77:19 adjoining 71:14 Adjustments 108:19 administ... 10:2 14:25 34:15 administ... 50:7,11 101:12 administ... 12:8 admission 82:10 90:2 admits 55:20 adopt27:3 adopted 22:22 25:18,20 27:1,12,13 39:9 43 :25 107:22 108:1,3 116:1 117:2 adoption 5:1 105:9 106:16 ADP 10 :22 11:5,8 21:8 90:17 adult20:25 advent80:9 adverse 22:2 36:10 advertises 91:24 advise 30:24 aerial45:16 affiliated 38:10,17 affirmative 14:5 affirmat... 31:2 afford 14:2 PS-RA 00294 0 C n 0 0 0 0 M 11 14:20 16 :25 23:1 23:18 30:9 68:20 affords 18:1 afternoon 7:16 75:12 77:24 86:5 88:12 91:9 102:10 agencies 14:6,10 115:3 agenda5:19 ago78:5 92:12 agonised 103:9 agree 98:22 99:22,23 109:19 agreeable 90:19 agreed35:5 agreement 12:4 agrees35:1 Airways 49:17 alcohol 12 :10 16:11 27:4 52:3 76:20 80:10 81:24 82 :9 82:11 90:5 92:3 alcoholic 16:9 100:11 alcoholism 49:25 52:24 alikell3:3 allegation 10:23 Allen 1:9 4:4,7,23 PUBLIC HEARING - 3/25/2009 5:2,4,9,17 5:23 7 :16 13:17 32:24 39:3 42:1,14 43:11,14 43:15 44:4 44:22 46:9 46:18,25 47:3,7,10 47:14 48:2 51 :4 53:14 56:23 58 :6 61:10,20 61:23 62:13,16 62:23 63:23 64:21 66:24 67:20,24 68:1 69:7 69:25 70:5 70:6,8,20 71:9,22 74:10 77 :24 83:4 83:9,,10 86:1,4 91:12 94:5 94:17,20 96:6,14 98:9 101 :9 101 :11 106:23 107:1 108:1,8 110:1,5,12 110:22 112:2 114:3,20 118:21 119:1,5,16 119:20 allow 8:18 8:21 9:21 16:15 23:3 37 :6 65:24 69:1 86:10 8624 87:16 102:25 103:1 107:1 allowed 22:10 23 :10 32.16 34.11 35:2' 90:22 103 :2 allowing 29:14 35:9 35:12 allows 7:23 30:25 37:21 56:13 110:18 allusive 76:19 alter 32:21 101:14 103:17 alteration 15:13 22:21 35:7 50:12 116:8 altered 72:15 alternate 27:6 118:24 alternative 23:17 91:24 92:2 alternat... 7:3 alters50:8 altogether 84:6,11 altruistic 100:15 ameliorated 109:13 amended 11:23 amending 64 :15 14:12 117:8 amendments 11:23 13:23 64:16 amortiza... 104:7 108 :5 amount64:9 64:10 73:6 Ana35:18 analyses 29:3 analysis 15:6 16:4 16:22 18:13 21:20 22:25 23:21 25:8 25:15 28:20 29:7 31:4 32:4 32:19 33 :11 38:3 42:24,25 43:9,22,22 45:5,10,12 46:12 65:25 67.19 111:8 114:22 117:16 118:5 analyze 20:1 30:23 38:25 39:1 63:24 analyzed 15:25 19:8 29:17 30:3 PRECISE REPORTING SERVICE (800) 647 -9099 Page 2 31:17 33:19 102:2 110.18 114:25 analyzing 15:19 17:23 32:25 and /or 9:14 Angeles3:5 anger 99:11 animosity 99:11 annual 41:16 answer23:7 28 :2 40:3 41 :25 55:3 89:25 91:16 anybody 5:9 13:19 56:11 91:16 113:8 anybody's 4:20 Anyway 95:24 apartment 85:5,9 appeal 4: 24 4 :25 Appeals 108:21 appear 11:8 APPEARANCES 3:1 appeared 8:13 appears 111:11 116:12 applicable 18:17 19:19 44 :1 81:18 87:13 117:22 PS -RA 00295 O< j 71 f 0 0 applicant 6:17,24 7:1 8:3 11:18 12:2 12:7,11,14 12:16,20 12:24 13:3 15:8 16:1 16:7 19:17 19:20 20:22 23:16 26:17 27:17,25 29:18,19 30:20,22 32:1 34:18 34:18,21 35:1 37:15 38:1,7,15 38:16,18 41:18 42:4 43:2,6 47:3,13 51 :6 63:21 66:8 70:11 71:3 75 :18 77:19 82 :8 82.23 88 :15 89:6 90:12 91:4 96:9,12,20 97:4,25 102:2 103:20,25 104:10,15 104:17 105:23 106:1 107:9 109:11 111:10 112:4 117:4 118:9 119:6 applicants 66:3 PUBLIC HEARING - 3/25/2009 applicant's 6:19 70:22 75:15 80:17,19 80:20 application 6:4,13 7:14 11:21 22:24 58:12 61:24 77:18 96.19 109 :20 117:15 applicat... 42:18 119:14 applied 18:18 25:5 25:8 26:22 43:16 57:13 58:24 66:3 66 :21 67:21 110:11 113:2,11 117:12,23 applies 10:8 12:16 100:16 117 :17,19 apply 10:10 12:18 24:21,22 24:24 26 :6 38:24 47:23 53:25 54:1 56:21 58:20 81:11 85:22 111:12 113:15 applying 10:14 25:9 43:19 appointed 4:8 appreciate 77:21 approached 78:18 appropriate 27:10 28:3 32:4 106:2 119 :21 approval 4:15 9:15 61:13 80:21,22 107:22 approve 5:15 41:12,12 approved 33:23 114:8 approving 7:3 81:12 approxim... 29:13 45:6 45:7.49:6 72:18 April8:21 8:24,25 architect 92:25 areal3:5,7 35:18,25 36:24 45:7 73:11 77:7 93:14 112:1 116:2 areas 20:21 35:16 36:8 52:2 argue 117:5 argued 104:23 arguing 50:9 artful 70 : 1 artfully 71:12 articulate 117:3 articulated 118:13 aside 98:25 asked16:2 17:25 42:20 55:1 56:11,17 58:10 73:23 78:21,23 89 :12 92:22 96:15 106:13 108:12 asking48:11 57:11,12 57:16 58:5 62:16 68:1 68:10,17 69:15,20 69.21 91:18 102:3,4,5 102:6,7 106:5 asks 103:20 aspect84 :15 87:21 aspects 20:17 assertion 82:2 assess43:24 Assistant 3:8,9 assists 12:12 Associate 3:9 7:17 atomic 104:1 attached 12:6 13:9 37:22 44:7 44:16,17 attaching PRECISE REPORTING SERVICE (800) 647 -9099 Page 3 44:20 attack 50:15 50:16 attempts 9:24 attend12 :22 attention 9:5 119 :23 attest99:13 attestation 82:7 attitude 89:2 attorney 3:8 3:13 6:5 74:19 75:15 80:18,20 82:14 91:6 92:21 96:16 120:16 attorneys 47:15 75:2 75:5 Attorney's 13:13 audacity 84:10 audience 6:7 August79:16 authority 25:19 27:1 27:5,8,22 57.7 authoris... 87:3 available 12:13 19:15,18 100:10 Avenue3:5 4:11 7:21 8:2,16,20 59:19 70:17,24 76:1 94:15 average PS -RA 00296 C r O E E 29:12 107:10 avoiding 36:23 aware 33:24 71:20 72:3 92:11 93:4 a.m39 :18,22 B back 5:19 17:7 18:6 32:5,25 33:21 34:22 42:19 44:22 47:10 56:20 59:14 64:14 67:21 69:19 71:13 78:21 85:3 86:4 87:7 87:10,16 89:22 102 :15 105:19 110.25 117:7 119:21 backed73:8 background 6:1,12 13:18 77:11 back- to -... 45:19 Balboa4:16 5.5 94:2 114:10 Barbara 52 :14 Barrett 49:16 based 12:1 26:10 PUBLIC HEARING - 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3/25/2009 44:11,17 45:14 77:4 81:6 84:23 85:22 111:23 built73:11 81:6 88:18 92 :14 bunch 66:20 Bunting 27:25 burdenl4 :25 34:15 50:5 50:6,10,11 101:12 108:22 burned 8 5 :16 business 89:3 93:6 93:10 94:6 94:7,11 104:5 butt 74:16 button 99:10 butts 74:8 C CA3:5,10 calendar 5:4 California 1:10 2:9 4:1 15:22 18:20 21:18 25:17,19 41:9 52:11 52:19 93:16 117:21 120:5 call 40:3 103:10 called51:18 52:13 57:23 65:8 67:3 100:19 Camacho 79:13,14 79:25 campus 59. 13 71:15,15 111:21,23 cap 112:22 car 73:1,3 78:6,9,14 86:18 95:4 95:6 care 8:9,14 10:10 18:10,12 19 :1,2,11 19:19,22 20:3,7 22:3,9,16 23:10,24 25:10 26:23 37:6 39:15 48:19 49:3 53:21,24 60:11 93:20 96 :2 109:3 115:20 116.11 117:23 carefully 35:1 carry 99:13 cars40:22 41:1 73:6 73:7,17 86:19,22 86:23 case 15:17 16:7 30:12 46:13 49:16 51:20 52:13,14 57:23,24 65:7,9 67:3,4 103:21 104:18,24 104:25 105:3 106:17 108:18 109:2,4,6 112:16,17 cases 17:11 34:15 37:5 109:23 case- by -... 15:25 catch 78:8 catch -me... 89:2 categories 31:18 33:6 category 33:5 Catherine 13.12 CATHERING 3:8 Cathy6:4 caught70:2 89:22 cause 22:3 50 :12 101:12 causes 50:5 50:6 causing 101:21 census 45:4 45:10,21 46 :2,5 Center5:6 certain7:5 8:8 20:17 21:1.9 24:10,17 24:21 39:21 41:15 54:12 56:9 61:4,15 100:23 certainly 5:11 42:5 83:6 118:8 PRECISE REPORTING SERVICE (800) 647 -9099 Page 5 118:13 Certified 2:11 120:4 certify 120:5,14 certifying 40:8 challenge 71:10 challenged 47:19 chance 106.10 change 15:1 27:8 36:19 48:12 98:17 changes 59:22 80:9 changing 36:5 channeling 80:10 chapter6:15 character 36:5,19 characte... 11:25 21:12 26.10 27:15 36:3 44.5 characte... 86:8 charges 76:17 chasing 61.16 check 9:19 9:22,25 checked 92:17 checks77 :11 children 74:5 79:7 choice 31:7 69:4,5 100:18 PS -RA 00298 1 C O 0 O j 0 M chores 20:22 chosen 21:2 Circuit 57:24,25 65:9 108:21,21 circuits 17:4 30:16 circumst... 30:4 51:7 56:13 citation 10 :2 cite65:7 cited60:25 ;cities 13:24 14 :9,12 116:19 citizen 92:10 95:25 citizens 92:9 98:12 100:23 city2:8 3:3 3:7,8,8,9 4:8 7:1 8:11,12 9:5,11,12 9:13 10:1 10:25 11:12,16 11:23 13:12 14:7 14:25 15 :4 15 :9 21:24 22:8,12,17 23:19 25 :20,22 27:5,20 31:1 33:22 43:18 47:18,25 48:15,18 48:21 49:2 49:7,10,11 49:13,22 50:9,14,21 PUBLIC.HEARING - 3/25/2009 50:22 51:10,19 52:13,16 53:9,12,15 53:20,22 54:20 55:20,20 55:21,24 56:5,12 57:7,10,24 58 :15 59:4 59:9,25 60:25 61:6 61 :17,19 62 :5,8,21 63:4,10 64:15,18 65:1,15 66:12,22 66:25 67 :1 67:3,10,20 68:3,14,17 69:8,10 70:2 71:20 72:12 75:18 77:5 79:22 81:1 81:2 83:24 84 :5,17 85:6 87 :3 88:8,20,22 89:12 91:5 92:16,22 92 :22 93:4 93 :7,9,11 93:13,16 93:17,22 95:7 96:10 96 :16 98:2 98:5,12 99:14,24 99:24 100:23 101:1,3,5 101:19,25 102:2,4,5 102 :6,7 103:9,13 103:23 104:18,20 105:12 106:13,17 111:12 112:16,17 112:21 114:15 115:24 116:1 117:6,20 119:5 city's 10:12 1S :2 22:7 24:5 48:22 51:13 52:4 57:4 64:24 72:3 84:8 100:4 101:14 114:5 116:8 117:3 118:23 119:8 claim 104:22 104:24 claiming 64:6 88:5 claims 70:22 Clarific... 110 :22 118:21 clarify 6 :24 107:4 class54:25 55:6 classes55:7 classifi... 19:16 20:3 20:8 54:2 54:10,16 81:20,21 116:10 classifi... 18:20 19:13,15 19:18 57:18 classified 10 :6 18:9 18:12,14 19:10 20:11 26:19 44:12 115:18 classifies 53:23 classify 20:6 48:19 classifying 55:5 Clay 4: 10 7:8,11,21 7:25 8:8 9:9 13:6 29:20 31:21 32:6 41:3,4 45:14,25 59:15 71:7 73 :14 75:22,24 76:1,11 78:1,7,17 79:14 81:8 84:3 86:20 87:6 88:24 88:25,25 95:1 clean79:20 clear 46:17 64:22 110:6,20 115:4,21 clearly 15:9 92:14 109:21 117:16,23 Clerk 3:9 client 61:12 clients 12:3 12:21 39 :11 107:17,19 PRECISE REPORTING SERVICE (800) 647 -9099 Page 6 client's 110:11 close6:23 63:10,12 70:12 74:6 74:19 96:8 105:13 closed 119:24 closest78:2 clubs54:22 clustering 33:16 code 6:15 8:4 9:5,13 10:7,16,19 11:10,20 14:21,22 15:18,19 15:2.1,22 16:10,21 16:24 18:17,20 18:25 19:1 21:17,18 22:22,22 23:9 25:10 25 :17,18 25:23 26:1 26:3,5,11 26:21 27:3 29:16 30:2 30:6,25 31:22 34:19 36:10 37:21 38:22 40:12,20 41:9 43:22 43:25,25 44:14 51:15 53:13 57:15,16 57 :18 58:3 58:6,7,18 58:24 PS -RA 00299 C s p j U r I i 61:11 62 :18 65:2 66:6,6 72:5 81:9 81:13,15 81:15,15 81:19,20 81:20 92:14 93:1 101:14 103:17 105:1,3,5 105:17,20 108:7,17 110:15,18 113:16 117:16,21 118:10 Codes 25:5 48:25 57:19 58:1 58:12 77:20 80:15 85:14,14 85:15,20 87:4 117:15,19 combination 23:3 111:15,16 combine 84:10 come 5 :11,15 17:16 49:7 52:25 56:3 56:8 63:12 64:8 66:12 67:15 78:21 80:6 85:21 98:13,21 comes81:9 99:9 100:16 coming 5:5 60:15 73:16 88:8 PUBLIC HEARING - 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PS -RA 00300 r i i s Ll U J 6:10 107:18 Consolid... 107 ;20 constant 73:17 89:1 constitute. 117:4 constituted 112:23 constitutes 52:12 constructed 8:17 44:17 construc... 8 :12 9:8 9:12,14 26:8 60:18 60:24 62:3 62:5,6,8,9 92:17 contact 39.25 contacted 92:12 contains 118:17 continuance 43:7,8 continue 4:15,17 5:18 8:5 11:20 34:20 35:9 35:13 47:12 63:1 83:9 101:16 117:10 continuing 4:21 7:4 continuity 101:21 contract 104:5 control 39:12 92:17 PUBLIC HEARING - 3/25/2009 controls 37:18 controversy 60:23 61:6 convene 71:17 conversa... 79:25 conversa... 37:4 47:12 converted 8:9 conviction 90:7 copies 11:3 copy 12:5 corner7:21 32:6 59:15 59:21 75:22,25 77:2 78:1 86:7 Corona83:14 85:7 correct 10:14 19:25 112:14 113:4 Council 98:12 103:9 Counsel 31:16 38:18 count 39:10 46:4 counted 45:22 counter -... 70:21 counties 14:9 County 76 :9 couple44:6 78:2,5 80:7 102:11 112:5 114:2 course 104:9 106:25 Courtll:13 14:4 17:10 44:25 47:19 51:18,21 67:4 81:16 105:3 108:21 109:8,16 112:25 courts15:12 16:10 17:16,25 51 :16 57:22 58:22,23 65:11,24 100:18 102:1 cover24:2 covered67:2 co- counsel 64:15 crafted 52:16 118 :8 crash 79:19 79:22 crashed 79:17 create 22:21 27:21 28:21 34:4. created 22.14 46:16 56:6 90:24 98:2 111:21,22 creates 50:5 60:7,14 71:14 creating 33:15,16 creation 64:24,24 crime 88:10 crimes 88:7 criminals 87:24 - criteria 81:11 critical 82:6 cross 86:20 crowded 87:25 crux 72:17 CSR 120:23 curfew 12:14 12:16 39:16,17 current29:4 29:6,14 31:19 33:5 107:5,8,12 107 :16,25 currently 47:18 68:24 cut 59:16 Cynthia 91.10 C-a- m -a -... 79:15 daily 72:11 damage 79:21 dangerous 86:21 data97:11 97:17,24 98:6 date 7 : 5 8:23,24 10:4 18:23 114:8 120:17 Dated120:20 dates24:8 Dave3:8 17 :7 PRECISE REPORTING SERVICE (800) 647 -9099 Page 8 David 75:12 75:23 day 19:19 72:8 74:25 75 :6,7,7 79:4 107:22 days 12:18 74:22 deal 49:19 51:5 58:23 80:3 94:4 99:2 108:6 dealing 113:17 115:8 deals 58 :17 dealt 67:5 108:5 death85:17 debate 61:18 119:22 decide48:2 114:22 decided 45:23 75:21 83:23 decision 103.19 decisions 119:13 decision... 98:25 declined 30:21 42:22 defended 81:16 defense 75:1 define 13:25 defined 16:11 46:2 defines 105:8 definition 16:13 20:16,17 PS-RA 00301 n a a n 0 0 L a u 71 0 52:17 71:11,14 90:17 111:22 112:20,22 113:3 115:22,25 116:9 definitions 115:17 116:14 117:17 del 83:14 85:7 delay 9:20 65 :4,13,13 delays 73:9 delibera... 93:10 deliveries 73:17 democracy 98:20 demonstrate 30:17 53:15 demonstr... 93:6 109:9 demonstr... 108.23 denia125:9 25:16 49:11 63:5 65:6 90:3 116:22 118:19 denied31:5 53:22 65:12 69:2 69:3 102:20 117:24 denies68:17 dense 94:3 94 :23 density34 :2 35:17,19 35:22,22 PUBLIC HEARING - 3/25/2009 35:24 45:4 46.7 deny 5 4: 18 77:18 94:10 118:22 denying 7:4 54:12 68:22 Denys 92:8 Department 6:3 7:18 8:18,21 9:19 35:19 76:10 78:13 departments 92:16 Departure... 9:20 24:15 depending 35:18 85:22 depends64:1 85:11 deprived 29:10 Deputy3:8 6:4 described 11:25 70:23 describing 69:10 design73:12 designated 12:9 designed 72:19,21 82:18 83:2 85:14,15 114:5 despicable 96:5 destroy 96:4 detached 44:15 detail 9:7 29:23 104:1 details 23:25 87:4 detectable 39:23 determin... 7:3 27:14 110:3 116:16,25 determin... 106:11 determine 27:22 determined 11:5 21:6 28:5 29:24 29:25 determines 6:21 21:10 determining 31:1 develop 92:23 developed 8:1,2 80:14 develope... 96:20 developing 80:12 development 7:24 92:20 106.8 diagram 59:14 dialog 6 :25 Dick83:13 90:16 dictate 89:16 dictionary 49:18 difference 65:11 different 17:4 26:5 26:9 29:2 29:7 53:1 53:1 59:23 67:7 98:24 104:2 110:7 111:13 112:6 differently 54:8 67:12 difficult 55:9 56:1 99:4 118:1 dimensions 74:15 directl6:19 17:12 72:13 108:24 directed 27:2 103:11 direction 118:22 120:12 directly 59:16.60:3 76:12 102:19 disabili... 52:23 53:24 54:4 54:23,24 55:14 56:7 58:25 115:11 disability 31:4 55:11 58:2 59:1 96:21,22 disabled 14:7,16,20 15:3 16:6 16:12,16 16:17,25 18:1 22:16 23:1,3,6 30:9 31:5 36:22 54:8 PRECISE REPORTING SERVICE (800) 647 -9099 Page 9 54:17 55:17 60:7 60:16 67:11,13 67:24 87:23 102:14 109:4,17 114:13,15 115:4,7,8 disagree 57:8 98:23 discard 74:8 discounted 75.2 discretion 105:25 106:6 discrimi... 90:20 discrimi... 54:7,19 93:13 discuss5.4 13.13 71:17 discussed 9:7 25:13 30:12 31:25 41:15 100:25 .108:10,16 116:20 discussing 59:25 discussion 55:19 119:22 disjustice 95:25 dismissed 11:16 . disregard 93 :7 disregarded 116:11 disrupted PS -RA 00302 - 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minute 47:6,7 flair 102:13 flash 99:14 flexibility 38:25 floor 3: 5 78:9 fly 75:5 focus 72.13 folks 102:20 102:23 104:15,20 111:1 114 :15 follow 51:13 followed 88:20 PS-RA 00305 iI U: 0 s E: C U 9 11 91:21 following 9:10 10:1 31:18 follows12:1 foot 73:16 87:19 footprint 72:19 force 77:18 forced 101:23,25 foregoing 120:6,8,12 forensic 92:25 forgery 92:3 forgot71:23 form l3:9 20:2 60:21 forth44:22 50:10 64:14 87:8 87:11 89:7 89:22 90:13 111:5 118:17 120:7 forthcoming 92:19 forum 42:10 54:5 forward49:7 80:12 88:22 90:14 91:6 98:13 99:24,25 found8:12 30:16 37 :16 41:19 50:3 50:4 74:15 78 :13,15 81:17 four 2 5: 4 28:24 31:1 PUBLIC HEARING - 3/25/2009 33:5 41:1 72:10 73:22 86:12 117:15 fourth 18:16 Frank 77:25 fraterni... 54 :21 103:2 friends 95:20 front74:2,8 104:25 fulfill 93:23 full 23:21 fully 80:14 fundamental 15:1,13,20 22:21 32:20 35:7 50:12 103:16 116:7,16 fundamen... 30:2 50:7 101:14 108:17 furniture 9.2 further9:20 31:25 43:2 120:12,14 furthermore 23:13 93:17 F- a- b -i -a -n 77:25 F.3d108:20 G3:13 gain 61:13 gained 119:12 game 34:1 garage 13:10 40:25 95:4 95:6 gate 80:13 gather97:24 gears 25:25 gee 85:11 general 13:19 36:14,18 50:21 73:11 generally 73:2 generated 99:10,11 99:12 genetics 105:9 106:15 gentleman 78:6 114:12 gentlemen 78:19 GERSHON 3:4 getting5:10 5:14 give 15:10 25:1 33:23 40:5 42:22 49:8,10 51:17 52:9 66:22 71:22 84:20 91:19 101:20 given 15:8 25:2 35:24 40:2 41:7 49:14,19 103:24 gives 106:9 giving 77:21 91:6 109:16 go5 :11,15 13:21 23:25 29:24 33:4 40:15 44:22 56:20 63:4 69:19 71:17 80:12 83:5 83:6,11 84:7 89:2 89:3 92:4 96:2 97:16 99:18 100:18 101:11 103:7 104:1 105:19 110:17,25 111:3 113:20,22 117:7 goals 36:18 goes 20:25 45:15,15 58:15 72:11 going4:13 5:3 15:19 20:15 26:6 27:24 32:25 47:10 48:2 49.20,21 50:19,24 50:25 54 :6 56:1 61:19 61:20 63:14 64:19 68:3 71:22 72:11 74:10 80:14 87:10 88:3 88:4,8,19 89:10,12 89:14,15 89 :16,16 PRECISE REPORTING SERVICE (800) 647 -9099 Page 13 90:8,11 91:2 95:8 95:22 100:24 101:11,13 102:11 103:16,18 106:23 113:10,23 116:24 good7.16 46:25 75:12 77:24 83:10 85:8 86:5,17 88:12 102:10 116:15 gotten 84:14 92:21 103:3 government 17:14 115:3 governme... 14 :10 Governor 88:1 Grand3:5 grandfat... 69:23,23 70:1 grant13:15 15:4 49:10 50.17 51:13 53:18 56:18 65:9 69:17 75:9 110:2 115:3 117:20 118:11,22 grantedl5:9 22:18 37:14 51:12 PS-RA 00306 J 11 7 i i • i 71 O 0 53:10 54:15 68:2 68:16 69:8 69:21 97:13 108:12 110:24 117:6 granting 14:24 24:5 28:24 34:14 35:6 37:17 53:17 69:1 100:4 107:11 117 :5 graphic 70:25 grasp 55.9 great49:19 59:11 Groome65:8 grounds 90:3 group 4:9 8:9 14:17 17:24 19.19,21 20:19 43.17 50.20 51 :25 52:22 53:6 53:7 54:8 54:10 56:23 74:6 76:6,20 89:8 92:9 92:11 93:3 93 :19 100:13 102:22 105:10 106:16 groups 22:5 54:7.58:24 60.15 67:10,12 PUBLIC HEARING - 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IS 9:21,25 71:20 72:3 79:19 Oxford51:20 51:23 67:3 104:18 o'clock 39:22- 76:10 78:14 79:1 83:5 O- b- b -a -g -e 75:13 Pacific l:8 3:12 4:5 4:10 5:20 6:11,16 7:7,19 9:6 10:17,24 11:1,6,11 11:13,16 12:1 17 :6 18:5 24 :6 25:1,24 32:8 47 :15 47:17,23 PUBLIC HEARING - 3/25/2009 48.24 50:17,20 51:1 53 :10 54:14 55:16 56:15 57:7 57:14 59:12 61:1 66:2 97:3 113:13 pack 74:16 pageS.24 23:20 107:6 108:20 pages88:23 paid79:22 paper 99:13 99:15 parcel45:24 parcels7:20 45:11,17 45:18,19 45:23 46:3 parents 89:10,14 Parish65:8 park 13:4,5 13:6 41:2 41:4 74:5 74:14,15 79:6 95:12 parked86:19 parking 13:7 13:8 32:23 40:14,17 40:19,25 41:2 56:24 57:4 86:14 86:15,22 95:9,13,14 116:20 parlance 24.15 parolee 92:1 parolee /... 20:4 parse38:13 part36:23 39:8 54:22 56:16 58:10 61:2 63:25 65:19 76:12 80:17 87:8 116:5,13 116:16 particip... 96:25 97:8 particip... 98 :10 particip... 114:21 particip... 98:20 particular 16:1,1 17 :5 30:5 32:14 38:1 38:1,2 42:15 43:7 43:9,9,23 45:22 51:11 53:5 59:2 93:14 104:20 106:20 particul... 19:17 52:23 parties 119:2 120:16 parts73:15 passage 24:20 patently 71:1 patients 81:24 patio 112 :1 PATRICR3:4 pattern 38:10 Pause47:9 86:3 pay 95:25 paying89:20 peace 98:21 peacefully 60:22 penalised 113:19,22 pending 31:21 .Peninsula 94:3 114:10 people20:11 33:17,19 33:25 34:6 34:7,7 46:8,15 48:7 49:23 50:19 52:14,23 53:23 54:1 54:4,8,9 54:13,17 55:6,12,13 55:24 56:7 56:9 58:25 60:7,9,16 64:9,10 67 :7,8,11 67:13,13 67.14 68:22 69:2 70:9 71:16 73:16 75:6 76:25 77:4 84:11 85:15,16 86 :22 87 :1 87:6,,10, 10 87:13,14 87:17,18 87:18,23 88:7,9 90:10,16 90:21 91:1 91:14 93:5 94:24 PRECISE REPORTING SERVICE (800) 647 -9099 Page 21 95:25 96:1 96:4 99:21 101:15 102:14,21 106:14 109:5 112:4,6,7 113:14 114:6,14 percent 80:14 82:8 perfect 80:16 perfectly 69:9 period19:24 24:10,22 24:24 29:7 29:11 41:15,17 103:24 104:7,7 107:21 permission 56:4,8,9 56:14 62:7 permit 19:4 24:21 29:1 35:13,14 36:1,12,15 36.15 37:13,16 37:20 38:5 38:8,23,24 42.7,17 47:23 48:1 48 :3 49:5 63:3 65:18 66:4,6 69:17,19 88:24 104:9,11 111:2,3,5 111:12,13 111.17 113:16,21 117:12 permits 9 :15 PS -RA 00314 11 t 0 go 0 • F] L U 9:23 36:2 36 :7 40:2 41:7 62:4 62:9 65:3 69:13 71:21 72:4 89:5 92:24 107:12 permitted 12:25 63:2 103:5 permitting 88:21 person14.3 40:9 68:20 71-.24.80:2 94:23 109:1 personal 12:25 13:4 40:13,23 personally 74:13 93:3 persons 16 :11 23:3 45:22,24 46:3,5 48:8 52:2 52:5,8 54:23,24 105:8,11 106:16 112:23 113:3 115:4 person's 73:24 perspective 34:6 118:2 pervades 73.14 photo45 :16 46:1 59:17 phrase17:5 phrases 16:22 physical 44:4 PUBLIC HEARING - 3/25/2009 physically 92 :24 pick 85:7 picture 70:25 71:5 pipeline 114:9 place 28 :12 28 :16 49:24 52:11 62:10 77:20 95:12,18 97:10 102:13 110:10 111:22 120:7 placed120:9 places33:11 Plains 108:20 plaintiff's 108:22 plan 9:19, 22 9:25 36:18 43:22 104:16 Planner3:9 7:17 planners 106:9 planning6:3 7:17 24:15 35:19 106:9 plans 9:15 9:18 10:5 33 :22 plant59:18 60:4 79:6 play 60:25 64:8 79:7 100:10 please42:8 47:12 70:14 83:3 94:18 96:22 97:1 plus67.1 105.22 point 46:10 62:2169:7 82:12,13 84 :4 90:1 94:1 96:9 104:17 111:1 pointed 116:17 pointing 44:19 points 70:21 71:18 police 54:20 78:12 policies 14:1,13 policy 48:9 Polin3:13 47:5,8,14 47:15 61:15,22 62:1,20,24 64:1 67:23 67:25 69:15 70:4 96:14 102:12 104:23 108:10 109:19 110:6 112:5,10 112:14 114:4 115:23 116 :17 PolinIs 110:8 Pollution 73:9 pool 112:1 population 29:17 30:14 55:16 57:21 populations 45:3 portion 13:11 31:14 46:1 46:8 position 50:23 75:4 99:4 103:14 117:3 possession 78:15 possibility 24:9 possible 15:10 56:2 107:20 potentially 5:6 68:22 poxer59:18 60:4 poxers54:20 practice 9:20 10:1 38:11 48:9 practices 14:1,14 preceden... 51 :8 preliminary 47:17 premises 21:3,5 preparation 42:19 113:10 prepared 70:18 118:17 prerequi... 20:10 present 23:10 30:21,22 PRECISE REPORTING SERVICE (800) 647 -9099 Page 22 38:20 40:23 55:25 98:11 115:12 116:18,21 presenta... 13:12 47:4 presented 42:5,23 43:4 51 :6 51:7 99:3 99:3 presenting 6:15 114:21 pretend 114:13 pretending 87:23 pretty52:17 64:22 73:7 116:13 prevent 28 :16,17 !previous 5:24 pre -2008 69:20 primary 76:5 printer97:6 prior4:13 32:12 56:15,20 110:10,14 117:7 120:6,8 prison86:10 88:1 prisons 87:24 private 54:22 probably 20.18 44:11 65 :7 79:11 81:17 PS -RA 00315 C Ll 11 1-1 f n 116:18 probation 87:24 probatio... 92:1 problem 56:25 65:4 problematic 56:24 problems 55:8 73:2 77:14 88:23 92:3 procedure 48:9 procedures 36:16 88:20 proceed 47 :13 proceeded 29:10 proceeding 47:9,25 79:20 86:3 proceedings 51:8 120:6 120:8,10 process9:22 9:25 10:5 15:10 22:10,14 37:22 44:2 66:10 84:8 91:2 92:20 103:23 110:17 111:2,3,5 113:18 114:7 processes 88.19 processing 65:2 profanity 77:14 proffered 49:22 PUBLIC HEARING - 3/25/2009 proffers 53:12 program 15:2 35:8 prohibited 20:4 22:6 prohibits 54 :9 prolonged 82:18,21 promote 36:17 promptly 64:23 prong 17:11 22:24 30:8 30:17 31:15 36 :25 39:2 43:9 proofread 21:1 proper42:10 118:15 properties 1:8 3:12 6:11 7:7 7:22 17:6 18:5 28:22 45:19 71:6 71.13 property 7 :25 8:2 8:16 9:18 9.:21,25 16:9 21:7 39:24 44:18 71:14 74 :20 75:20 77:16 79:22 81:21 83:14 85:3 87: -8,10 94:25 proposal 46 :7 119:6 119:7 proposed 15:13 35:22 39 :10 108:24 proposes 26:17 35:3 proposing 7:8 63:4 63:10 proposition 104:19 prospective 31:23 33:5 .33:7 protect 28:17 36:21 93:23 protected 54 :24 55:4 protection 27:7,8,9 27:16,17 27:23 59:9 protections 114:16 proven87:1 provide8:5 10:13 13 :8 17:15 18 :3 27 :6,18 31:12 35:16,20 54:3,23 63:20,22 66 :9 93:9 96:16 97:1 97:11 98:4 98:6 100:10 102:3,4 provided 10:24 11:3 12:2,21,23 19:23 31:15 39:25 42:21 66:5 97 :21 106:1 108 :25 provider 56 :13 57:2 providers 50:25 52:22 53:7 56:6 100:14 provides 17:21 55:16 99:14 105:5 113:17 providing 40:7,10 100:13,13 provision 48:25 52:19 53:5 65:23 66:6 66:10 provisions 11:19 18:17. 47:20,21 57:13,16 57:17 58:3 proviso 117:6 proximity 34:5 publicl.7 2:7 5:12 6:19,20,23 13:2 14:6 32:1 36:17 39:8 43:5 43 :8 70:7 70:10,12 83:6 93:24 96:8,11,13 99:18 PRECISE REPORTING SERVICE (800) 647 -9099 Page 23 114:7 116:20 119:18 public'97:6 pull 5:6 79:7 purpose 6.9 15:15,20 15:20 22:20 29:15 30:2 35:10,14 36:9,9,12 36:14,17 36:21 37:11,13 38:22 40:12 103:17 108:17 109:12 111:24 purposes 10:7 22:1 30:6 35:15 37:5 39:15 65.22 push 42:18 put45:9 48:10 52:19 55:23 57:4 69:22 84:11 85:11 87:14,17 88:3 90:9 90.13 98:25 103:18 104:8 106:14 puts 99:4 putting50 :9 89:7 puzzled 61:23 62:17 PS -RA 00316 C 0 0r 0 0 0 0 0 n p.-m. 2:9,10 4:2,2 12:15,15 39.16,17 39:18 73:5 119:25 quadruples 73:7 qualific... 80:21 qualify 82:24 quality 31:3 question 23:8 44:4 55:15,17 55:21 71:7 96:18 98:7 106:17 109:19 110:1 112:3 115.7 questioned 105:2 115:5 questions 24:8 28:1 41:24 42:6 43:15 102:9 106:21 115:13 quick 4 :14 6:1 43:15 69:7 80:7 102:11 quickly 5:14 27:24 32:24 quiet 12:11 12.15,18 39:18,20 73:23 quite 91:11 103:23 110:6 PUBLIC HEARING - 3/25/2009 quote 105 -.7 105:8 114:5 quoting 105:4 _ R _ race 55:10 55:12 102:13 raise 27:17 raised 100:22 ramp 73:3 rated83:24 rating 10:14 read20:16 70:19 71:19 79:12 105:1 112:21 readily 52:2 reading 3 7: 5 82:15 readings 82:16 ready47:13 real 46 :12 86:10 88:9 115 :13 really44:6 46:10 60:14 62:9 62:15 74:20 86:9 86:21 88:6 102:17,18 104:2 105:15 116:15 rear 44:18 reason4:19 1 27:12 28:11 32:6 36:15 49:22 50:14 53.9 53:12 54:17 56:17 76:5 reasonable 4:5 5:20 5:24 6:5,8 6:14 8:3 11:19 13:14,18 13:20,22 13:25 14:18 15:7 15:24 16:5 21:21 22:8 23:17 24:23 29:4 32:16 37:18,20 37:21,24 38:25 42:17 47:20,25 48:4,6,8 48:10,15 49:12,14 49:14,18 49:22 50:2 50:4;5 51:3,12,22 53:3,11,18 54 :15,18 57:3,12 58:8 63:5 63:6,14,22 64:2,17,22 65:3,5,17 65:19,20 65 :23,25 66:9,10 67:18 68:2 68:9,18 75:9 80:23 81:4 82:15 82:16,17 82:24 83:2 86:9 94:9 94:10 96:18 97:4 97:25 100:4,7,8 100:17,20 101:6,10 102:24 104:9 108:11 109:20 111:17 113:11,12 113:18,20 115:1,3,14 115:15 116:9,24 117:14 118:23 reasonab... 29:11 31:17 108:14,15 108:16 reasonably 14.6 reasons 28:19 37:16 53:14 99:7 118:3 reassurance 38:18 rebut 6:24 receive 40:3 received 18 :22 42:15 recess47:6 47:7 reclassi... 62:11 recognition 53:6 70:11 recognize 43:3 recognized 45:21 118:3 recognizes 48:21 100:12,14 PRECISE REPORTING SERVICE (800) 647 -9099 Page 24 100:14 114:15 recommend 28:24 32:3 64:19 recommen... 32:2 34:10 100:4 107.5,24 118:24 recommen... 43:2 recommended 24:4 25:9 25:16 31:24 33:9 33:21 34:16 37:14 53:10 68:4 117:6 reco=®en .. . 49.11 110:1 recommends 107:11,15 record8:22 39:4,7,8 47:11 70:15,18 86:4 90:13 94:21 112:15 120:10 recover 49:24 recovering 16:9 37:2 37:6 76:23 80:10 82:9 100 :11 recovery4:9 5:5 7:9 11:1 16:11 26:14,15 27:4 33:23 36:22 37:4 52:2 PS -RA 00317 F] 0 s 0 a 0 0 0 0 101:17,22 114:6,15 red 31:21 reduce 21:25 reduces 100:5,6 reference 46:11,20 referenced 46:24 refuse 98:6 refused 73:24 regard 31:18 105:9 117:15 regarding 9:6 79:19 80:19 regardless 98:22,22 101:10 regards 8:7 regular37:9 regulate 54:20 55:22 regulation 93:18 regulations 14:22 16:11 27:21 52:4 52:7 reintegrate 37:7 reintegr... 36:22 reject 114:14 rejected 119:7 related 13:14 52:8 67:8,13,13 105 :9 106:15,20 113:2 PUBLIC HEARING - 3/25/2009 relation 105:15 relative 120:15 relearning 37 :9 release 88:1 relevant 61:4 96:25 97 :7,11,17 relief 8:4 11:19 relinquish 106:22 remain29:14 100:10 102:6 remaining 20:3 107:14 remains 10:4 remedied 57:1 remind 108:12 114:7 reminder 6:7 remove9:14 removed 52:1 rent89:20 renta189:15 89 :18,19 90.8 rented 11:2 20:25 renter89:19 renters 89:16 repeatedly 14:4 92:15 94:8 115:2 repeating 100:3 report5:22 8:24 9:7 12:6 18:23 23:20 29:24 3 1: 25 33:3 33:4 39:19 40:14 42:19 43:3 46:12,17 46:23 55:19 63:15 78:12 87:4 89:4,5 107:6,10 116:14 118:15,18 reported 10:25 20:23 92:15 111:10 Reporter 2:11 51:18 120:5 represent 79:13 represented 5:25 29:22 request4:5 4:14,17 5:20 6:16 7:4,4 11:3 13:14,16 14:16,18 14:23,24 15:4,5,6,8 15:13,14 16:2 17:23 18:6,9,14 18:16,22 19:7,9,10 19:12 21:21,21 21:23 22:18 23:23,23 24:3,3,5 25 :4,4 28:24 29:3 30:21 31:18 32:16,25 34 :14 35:6 42:2,16 43:6,8,9 48:3,8 49 :10,11 49:14 50:1 51.11,14 53:4,18,21 54:18 56:19 57:4 58:13 61:8 63:6,15,16 63:21 64:2 64:13,17 64:22 65:3 65:5,6,10 65:10,12 65:14,17 65:20 68:2 68:4,18 69:22,25 75:9 80:23 86:9,10 97 :3,12,12 101:9 105:23 107:6 110:21 115:16,18 116:5,23 116:24 117 :14 118:6,9 requested 6:10 10:17 11:18 17:6 17:13 25:24 29:18 30:13,14 30:19 33:8 34:17 37:15 51:21 60:20 61:8 65:10 96 :22 PRECISE REPORTING SERVICE (800) 647 -9099 Page 25 97:22,25 i7 3e rsting : 43 :22 60:21 63 :7 63:8,9 97:18 102:2 118:11 requests 6.6 6:8 11:23 15:11,18 15:23,24 18:6 20:13 23:17 24:1 25:8 48:14 50.1,12 63:17 66:1 68:6,13 115:15 require 11:7 36:3 40:21 40:24 41:6 41:16 109:5,23 required 13 :15,23 13:24 14:8 16:20 17:18,20 18:3 27:16 28:7,11,11 30 :13,14 33:12 34:13 36:2 38:5 40:19 41:8 49:13 59:7 61:17 66:5,8,19 69:12 97:5 98:1 107 :9 111.3,11 111:19 113:13 117:12 requirement 5:12 15:15 28:25 PS -RA 00318 C r, D r t E 0 a E7 L, u 35:14 44:3 48:12,12 49:3 67:1 68:12 103:15 112:23 113 :1,2 requirem... 9:13 17:17 18:24 26:9 33:14 47:19 48:1 58 :7,9,19 58:24 59:7 65:18,19 67 :5,7 69:17,19 75:19 77:19 108:13 115:24 116:14 117:22 118:10 requires 9:13 14:12 17 :14 34 :12 36:7 44:14 56:6 63 :21 99:16,17 108:16,23 115:3 requiring 28:2,2 38:23 41:22 requisite 62:4 resembling 60:20 reside 12:3 16:8 78 :1 107 :13 112:4,8 residence 23:11 51:24 PUBLIC HEARING - 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3/25/2009 59:7 85:14 85 :14 sake 100:2 sample 11:4 sand74:17 Santa35:18 52 :13 sat 100:25 satisfac... 41 :14 satisfac... 40:10 satisfy 61.19 saw33 :22 69:25 saying 20:13 40:17 46:15 55:13 58:7 66 :22 67:10 69:11 82:23 85:12 88:14 98:17,18 100.7 113:9 saysl9:1 35:19 40:22 50.14 52:20 53:20 55:22 57:7 58:7,15,20 61:17 62:5 66:7,14 67:5 83:17 97:13 107 :7 schedule 41:13 83:5 scheme 50:8 50:13,15 53:23 56 ;6 64:23 116:8 schoo177:10 86:11,13 Scotch 108:20 screen20:17 Sea83:25 seamlessly 73:4 secondl8:9 36:21,25 39:14 50:3 74:1 78 :9 84:1,15 109:14 secondary 21:25 22:2 32:10 36:10 secondhand 39:23 77:14 seconds 71.23 75:16 section 16:2 18:25 41:3 43:13 105:18,18 106:7 see 16:23 21:1 23:21 27:24 29:23 35:2 45:12,16 45:25 46:23 49:18 64:16 70:25 71:6 72:10 83:4 95:18,22 117:25 119:2,4 seek27 :18 61 :13 102:23 104:6,8,10 seeks 15:15 35:10,14 seen30:18 74:14 80:9' seminal65:7 semi- rid... 84:2 send 50:19 50:24 sending 43:20 senior79:19 sense85:12 sent79 :22 sentencing 91:25 92:2 sentiment 99:19 separate 12:4 18:6 44 :10 48:14 separation 44:8,15 September 8:19 11:22 18:7 63:16 63:17 sequence 24:25 serious 88:9 serve 109:12 services 11:7 12:21 12:23 14:1 54:4 set 12 : 5 41 :17 54:11 105:25 118.17. 120:7 sets 111:5 setting42:7 87:15 108:5 116:15 seven26:15 PRECISE REPORTING SERVICE (800) 647 -9099 Page 27 26 :18 43:17,21 94:22 111:9 seven -month 65:13 severe 94:1 share 20:21 20:22 74:18 78:2 sheriff 79:2 Sheriff's 76:9 SHIRLEY 3.9 Shores I.8 3:12 4:6 4:10 5:21 6:11,1'6 7:7,19 9:6 10.17,24 11:1,6,11 11:13,16 12:1 17:6 18:5 24:6 25:1,24 32:9 47:16 47.17,23 48.24 50:18,20 51:1 53:10 54:14 55:16 56:15 57:8 57:14 59:13 61:1 66;2 97:3 113 :14 short 29:11 83:11,12 shorthand 2:11 120:4 120:11 show 17:17 108:22 109:11,11 shown 23:15 shows 90:12 shuts 100: 5 PS -RA 00320 a 0 A a is 1 0 0 n side32:7 45:13,19 71:573:1 78:6 84:22 sides 32:7,8 86:19 sight 55:24 114:6 signal 50:19 50:22,23 signed 16:7 signific... 10:14 significant 116:20 similar 2 6: 4 31:11 34:5 37:17 38:11,13 40:7 51:9 51:16,17 51:24 111 :15,16 simply 73:3 106:8 115.22 single 17:7 18 :7,19 19:9,15,22 20:12,15 20:19,24 21:3,12,13 21:15,20 21:22 22:6 22:11,19 23:1,12,15 23:22 25:12,14 26:12 35:16,20 41:5 44:20 48:16 49:1 50:18 51:14,24 52:1,5,9 52:17,21 53:4,11 64.4,12 PUBLIC HEARING - 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3/25/2009 91 :19 95:21 97:14,14 104:17 112:7,14 wanted43:6 43:8 64:4 64:12 70:1 71:23 88:14 96:2 97:22 107:4 113:4 114:6,14 117:11 wanting73:6 wants80:20 80:21,22 80:23 81:2 81:10,11 81:11,12 90:15,20 91 :13 101:5,7,19 101:25 Washington 3:14 wasn't46:11 62:16 84:18 watching 88:16,18 WATSON3:4 way 7 :10 16:21 20:13 24:10,11 26 :4,4 27:10 33:22 58:15 65:15 78:8 85:4 95:13 95:14 101:11 110:15 ways83:6 108:6 Web 91:24 Wednesday 1:11 2:10 4:1 weekdays 12:15 Weekend 39:17 weekends 12 :16 Weeknight 39:16 weeks5:7 74:22 78:7 78:13 welcome 110:13 went33:10 33:10 34:13 44:5 46:14 89:11 95:7 97:6 111:7 weren't64:6 111:19 West4:16 51:19 94:3 we'114:4 5:17 6:12 66:22 83:12 101:19 we're4:20 5:3 15:17 15:19 32:16,18 33:24 38:23 47 :10 j 48:20 49:2 49:8,20,21 56:1 57:16 60:21 61:18 62:24 63:6 63:7,8 64:17,19 68:1,8,10 69:15,20 69:21 76:23,24 80:2,13 83:5 94:4 101:1,2 102:4,5,6 102:7,17 105:13 106:4 113:7 115:8,9 117:25 we've 14:21 22:12 24:10 25:13 35:5 42:25 58:10 66:21 68:13 80:5 88:16 90:1 95:8 108:16 115:2 WHEREOF 120:17 whichever 58:16 wide49:15 width 44:16 willing 5:11 27:18 49:8 wiped85:2 wish 83:9 91:12 92:5 wishes 96 :10 WITNESS 120:17 witnessed 78:9 witnesses 120:8 witnessing 74:21 Wolcott3:8 6:4,14 13:12,17 PRECISE REPORTING SERVICE (800) 647 -9099 Page 33 17:10 33:3 39:6 41:24 42:13,15 43:20 44:10 45:2 46:6,14,22 57:17 58:5 59:12 63:13 81:14 106:23 107:2,4 108:3,9 110 :4,8,13 110:23 111:7 113:7 word 26:4,5 38:13 81:24 wording 17:3 words 111:2 work 9:16,18 9:23 21:2 35:1 60:10 61 :13 64:18 92 :21 98:9 119:2 worked42:11. 57:1,5 58:11 101:1,7 works 6:13 wouldn't 43:18 57:9 57:11,11 57:12 82:3 wrap 74:10 writing 10:20 written 12:4 21 :4 70:18 71 :19 74:11 110:16 wrong28:5 66:13,15 PS-RA 00326 0 0 O i p a a €] 0 A 98:19 wrote 66:16_ 66:18 ......... ._._. - X X64:9, 10 _ Y_ yard84:22 yards 72.9 yeah 29:13 year 9:24 11:17 35 :2 35:5 43:22 61:21 79:11 years40:8 41:17 72:10 74:21,25 76:2 78 :5 82:22 88:16,16 91:11 92:12 93:18 98:10 yesterday 44:5 young 78.6 95:17 Z .- -------- . -. zone 19:6 35:10 49:5 59:6,24 63:2 69:14 102:23 109:6,7 zoned7:22 45:20 72:19 85:4 zones 19:14 19:24,24 20:5 25:3 35:15 45:18 54:12 102:21 PUBLIC HEARING - 3/25/2009 116:13 zoning 15:2 15:18,21 18:16 21.17 22:22,22 23:9 25:5 25:9,16 26:5 29:16 30:2,6 35:8,10 36:10 38:22 40:12,20 44:14 48:23,25 50:13,15 51:15 52:4 53:13,23 56:6 59:25 64:23 72:5 77:6,19 81:20 84:8 98:11 101:14 103:17 108:17,19 116:8 117:8,16 118:10 0 _ _ 0873:22,25 1/2 7:7,10 8:16 29:20 31:19 32:5 44:7 112 :9 1011.24 12.15 39:16,18 39:22 75:16 100 80:14 11 12.6,15 39:17 78:14 127:10 29:19 31:24 33.19,25 34:25 35:23 39:11 46:3 49:9 52:14 63:8 64:20 66:23 67:16 72:21 86:25,25 100 :6 101:20 107:19 118:24 12 -Step 12:22 1311:24 13th 18:23 42:16 13135 27:3 187:10 29:20 44:9 84:3 18th42:21 180 29: 13 1995 105: 3 199894:25 - -- 2.194:22 20 7:10 19:14 29:20 34:7 44 :9 45:17 45:17 66:13 84:3 98:10 20,000 87.19 20.10.020 18:25 20.9A.050 41:21 20.91A36 :16 20.91A.050 38:9 105:18 20.91A.0... 105:20 200045:3,10 45:21 46:5 80:9 20015 3: 14 20058:17,19 200656:22 62:8 20078:11,22 8:24 9:3,4 9:11 10:16 10:22 11:9 11:12 34:22 43:25 44:1 56:22 76:9 88:17 93:24 111:9 2007 -2006 110:20 200811:22 18:7 79:16 81:16 93:25 110:10,14 2008 -05 15:21 22:20 24:20 36:7 53:16 20091:11 2:10 4:1 11:24 56:22 202 3: 15 218:19 2133:6 22 110:10,14 233114:8 24 8:24 11:22 40:3 24- year80:8 24- 712:13 25 1:11 2:10 4:1 72:9 25th8:25 PRECISE REPORTING SERVICE (800) 647 -9099 Page 34 268:21 284 108:20 3rd108:20 3.545:24 3.5846:4 3012: 17 112:12 3034 3:14 325686:6 3300 2:8 3:10 330178-1 3305 79:14 3307 75:24 3309 7:8,11 7:25 8:8 9:8 29:20 31:20 76:11 78:17 81:8 112:8 331 -5848 3:15 355 3:5 3604BF3 65:22 3745.18 3849:21,23 68:22 107 -.6 112:6 39 23 .20 39 -page 46:23 444:16 83:4 83:5 4:00 2:9 4:2 4072:18,23 74:6 76:25 77:4 86:22 87:18 112:12 40th 3: 5 407 70:17 72:10 PS-RA 00327 s 8 4346 :3 442 108:20 45 29: 12 492 7:7,7,10 7:10 8:16 8:20 29:20 29:21 31:19,19 32:5 44:7 44:7 79:17 112:8,9 5 5 8: 24 73:5 50 7: 9 8:6 29:19 31:23 33 :12,17 34:6,23 46:7,15 49:6 74 :6 81:2 83:21 83:22 85:23 - 86:22 87:18 90:10 91:13 94:24 100:7 51194: 15 514 67:3 105:2 6 676:8 84:23 6 -year -old 86:16 6:052 :10 4:2 119:25 626- 84843:6 644 -3002 3:11 _ 7 _ 7 76: 10 79:1 70 45:22,23 725105:2 PUBLIC HEARING - 3/25/2009 8 8 9: 3 39 :18 39:22 8- year -old 86:16 9 ---- - - - - -- - - - ---- 900 4:16 90071 -3101 3:5 92658 -8915 3:10 9266 2: 12 120:23 94 66 :13 9493 :11 95 -bed 109:3 PRECISE REPORTING SERVICE (800) 647 -9099 Page 35 PS -RA 00328 PS -RA 00329 TAB 7 Hearing Officer's Resolution No. HO- 2009 -017. Denying Request No.1 of Pacific Shores' Reasonable Accommodation Request (July 2, 2009) PS -RA 00330 RESOLUTION NO. HO- 2009 -017 A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH DENYING WITH PREJUDICE REQUEST NO. 1 OF A REQUEST FOR REASONABLE ACCOMMODATION NO. 2008 -001 FOR AN EXISTING SOBER LIVING FACILITY LOCATED AT 3309 CLAY STREET, 492 ORANGE AVENUE, AND 492' /2 ORANGE AVENUE (PA 2008 -181). WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings; and WHEREAS. the adoption of Ordinance No. 2008 -05 amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC. Chapter 20.98 sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, an application was filed by Pacific Shores Properties, with respect to properties located at 3309 Clay Street, 492 Orange Avenue, and 492'% Orange Avenue, and legally described as Lot 2 and Lot 1 in Block 6 of Tract No. 27 in the City of Newport Beach, County of Orange, State of California (APN 425 - 282 -02 and 425 - 282 -01), requesting approval of the following five requests for reasonable accommodation: That residents of its facility at 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue be treated as a single housekeeping unit as defined in Section 20.03.030 of the Newport Beach Municipal Code; 2. That the City no longer classify or treat the properties at 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue as "Residential. Care Facilities," as defined by NBMC Section 20.05.010; 3. That the City classify the use of the dwellings at 3309 Clay Street, 492 Orange Avenue and 492 '/a Orange Avenue as a legal nonconforming use; 4. That all code provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue and 492 '/2 Orange Avenue (including Zoning Code, Building Code, fire safety and any other applicable code) be applied to those properties in the same manner that those codes are applied and enforced to single family and two family residential uses located in residential districts zoned R -2; and 5. That the City waive the requirement of NBMC Section 20.91A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit. WHEREAS, a public hearing was held on March 25, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and PS -RA 00331 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492' / :Orange Avenue purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was presided over by Thomas W. Allen, Hearing Officer for the City of Newport Beach; and WHEREAS, pursuant to Section 20.98:025(6) of the NBMC, the written decision to approve, conditionally approve, or deny a request for reasonable accommodation shall be based on findings, all of which are required for approval- WHEREAS, with respect to Reasonable Accommodation Request No. 1, that residents of its facility located at 3309 Clay Street; 492 Orange Avenue and 492 Ys Orange Avenue be treated as a single housekeeping unit as defined in Section 20.03.030 of the Newport Beach Municipal Code, not all of the five findings required can be made pursuant to Section 20.98.025 (B) of the NBMC, as follows: 1. Finding: That the requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing Laws. Facts in support of finding. The applicant submitted a statement signed by the facility manager that every resident of the facility is in recovery from alcohol or drug addiction. Federal regulations and case law have defined recovery from alcoholism and drug addiction .as a disability, because it is a physical or mental condition that substantially impairs one or more major daily life activities. 2. Finding: That the requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. Facts do not support the finding. The request to be considered a single housekeeping unit is essentially a request to be exempted from all of the provisions of Ordinance No. 2008 -05 which place any sort of reasonable regulation on the operations of residential care facilities. The applicant asserts that being treated as a single housekeeping unit is necessary, because residents cannot live independently without the threat of relapse, because the environment provided by the facility is necessary to achieve an opportunity for residents to live in a setting which is a self -paced recovery option that provides time for personal psychological growth while avoiding the use of alcohol and other substances. The applicant also asserts that without the sober living environment offered by the facility, residents of the facility would not be able to live in a supportive environment in a residential area. PS-RA 00332 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492' / :Orange Avenue Pane 3of9 The Hearing Officer finds that total exemption from the provisions of Ordinance No. 2008 -05 is not necessary to afford residents of the facility the opportunity to live in and enjoy a dwelling or a similar sober living setting. The Hearing Officer finds that the facility does not operate in manner consistent with the NBMC definition of a single housekeeping unit. The NBMC Section 20.03.030 (Definitions) defines a single housekeeping unit as: "The functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit, including the joint use of and responsibility for common areas, and sharing household activities and responsibilities such as meals, chores, household maintenance, and expenses, and where, if the unit is rented, all adult residents have chosen to jointly occupy the entire premises of the dwelling unit, under a single written lease with joint use and responsibility, for the premises, and the makeup of the household occupying the unit is determined by the residents of the unit rather than the landlord or property manager." The facility's operations most closely resemble a boarding house use. Copies of leases submitted to the California Department of Alcohol and Drive Programs (ADP), entitled "Agreement to Stay in My House," indicate that each resident enters a separate written agreement to reside at the facility. Based upon the applicant's characterization of the facility as being one of leased rooms to tenants and the use pattern described by the individual leases, the facility's operations are much closer to the NBMC's definition of a boarding house or group residential use than a single housekeeping unit. Except for the fact that facility residents are recovering alcoholics, the facility would be classified as a prohibited Group Residential use, or a Boarding or Rooming House as that term is defined in NBMC. Section 20.05.030. ("Residential Use Classifications: A residence or dwelling unit, or part thereof, wherein a room or rooms are rented under two or more separate written or oral rental agreements, leases or subleases or combination thereof ... ") No evidence was provided that clients are an interactive group of persons jointly occupying a single dwelling unit who share common areas. It appears there is no joint responsibility for meals or expenses, no single written lease, and the makeup of the household is determined by the facility operator rather than the residents. Furthermore, contradictory information exists in the record, submitted by the applicant in 2007, regarding whether the facility was a sober living facility or a group of boarding houses. Pursuant to NBMC Section 20.98.025(C), the City may consider the following factors in determining whether the requested accommodation is necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling: A. Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability. PS-RA 00333 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/2 Orange Avenue Page 4 of 9 If the requested accommodation were to be granted, any number of the applicant's current and potential clients could live in the home located in an R -2 District along with other individuals in recovery. This is situation can serve to affirmatively enhance the quality of life of a person in recovery from addiction, unless overcrowding of the facility or institutionalization of the neighborhood interferes with the resident's re- integration into society. B. Whether the individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. The Hearing Officer finds that the exemption requested goes beyond what is necessary to achieve the goal of affording disabled individuals an equal opportunity to enjoy the housing type of their choice. The City indicated that more narrowly tailored exemptions could be requested by the applicant that would enable disabled individuals to reside at the applicant's facility, and the applicant submitted additional requests as a result. C. in the case of a residential care facility, whether the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants. The applicant did not submit evidence that treating the facility as a single housekeeping unit is necessary to make the facility viable in light of the current market for the type of services it provides. The applicant objected to requests by the City for such evidence. Therefore, the Hearing Officer is unable to determine that being treated as a single housekeeping unit is necessary for the facilities to be financially viable. D. In the case of a residential care facility, 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. The City has estimated that there are approximately 233 approved sober living beds in the City. Operators of many sober living facilities within the City have reported decreased census and vacant beds, which could afford potential Pacific Shores clients an equal opportunity to live in a sober living environment. The evidence presented as part of the application does not support the applicant's contention that treating residents of its facility as a single housekeeping unit will change the availability of the existing supply of facilities of a similar nature, or afford them a substantially greater access to an equal opportunity to live in a residential setting. PS -RA 00334 City of Newport Beach Hearing Officer Resolution 3349 Clay Street 492 Orange Avenue 492 '/z Orange Avenue Page 5 of 9 3. Finding: That 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. Facts in support of finding. The Hearing Officer finds that treating the facility as a single housekeeping unit will not impose a currently identifiable undue financial or administrative burden on the City. However, in making this finding, it is noted that approximately 56 to 58 individuals could be housed at the three properties if some rooms not currently labeled as "bedrooms" on plans on file at the City were used as bedrooms. If resident populations are unregulated and previous code violations associated with the property were continued, currently unidentifiable financial or administrative burdens could arise as a result. 4. Finding: That 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. Facts do not support the finding. The purpose of the NBMC's definition of a single housekeeping unit is to allow the City to determine whether groups of related or unrelated individuals are living together in a dwelling as a single housekeeping unit. This definition is necessary because of the persistent attempts by property owners acting as landlords to establish illegal boarding houses and illegal units in dwellings within the City. Groups living as a single housekeeping unit are permitted to live together in any residential zone in Newport Beach. Groups not living as a single housekeeping -unit are prohibited from establishing residences in any of the City's residential zones,. with the single exception of those groups not living as a single housekeeping unit in residential care facilities of any size. All residential care facilities in the City have already received a reasonable accommodation from the NBMC restrictions on groups not living as a single housekeeping unit through provisions of the NBMC that offer opportunities for new facilities to be established', and existing facilities to continue in their current locations, subject to approval of a use permit with appropriate impact mitigation. Licensed facilities housing six or fewer residents are permitted in.any residential zone of the City. Although the residents of residential care facilities receive preferential treatment because of their disabled status, the NBMC applies regulations to unlicensed and larger (more than seven residents) licensed facilities. These regulations are in place to ensure that the fundamental purposes of the Zoning Code can be achieved, and to ensure that the adverse secondary impacts higher density residential care facilities may have on the surrounding neighborhood can be mitigated. If a residential care facility is treated as a single housekeeping unit, it is entirely exempt from any of the reasonable controls the City might place on the facility, and the City would be unable to make any reasonable effort to reduce the adverse secondary impacts resulting from the facility such as noise, overcrowding, unruly PS-RA 00335 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 Yz Orange Avenue Page 6 of 9 behavior by residents of applicant's facility to the detriment of neighbors, the disproportionate consumption of available on- street parking, and the overconcentration of facilities within a single block to the point of creating a quasi - institutional environment in this neighborhood. Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the City's zoning program: A. Whether the requested accommodation would fundamentally alter the character of the neighborhood. Since the establishment of the first of the dwellings as a sober living environment, a number of adverse secondary impacts have been reported to the City by residents of the neighboring properties, thereby altering the character of the neighborhood. Some of the impacts reported associated with the operation of the facility include, but are not limited to: • Meetings held at one or more of the applicant's facilities • Excessive use of on- street parking by facility residents and their guests • Secondhand smoke • Noise late at night B. Whether the accommodation would result in a substantial increase in traffic or insufficient parking. The applicant has stated that residents are permitted to have personal vehicles at the properties, but that few residents own cars. The applicant has stated that "all park along Old Newport or along the commercial park area on Orange. No resident parks along Clay or the non - commercial parking area along Orange (i.e., Orange NE of Clay)." Each building at the subject site provides two enclosed parking spaces, consistent with the NBMC parking requirement of two parking spaces per dwelling unit for single- family and two - family residential uses, The NBMC parking requirement for residential care facilities is one off - street parking and loading space for every three beds. As a residential care facility, with 50 resident clients, the Pacific Shores facility would be required to provide 17 off - street parking spaces. Since the facility does not provide the required 17 off- street parking spaces, granting the requested accommodation would result in insufficient on -site parking. The Institute of Transportation Engineers (ITE) establishes standards for trip generation rates based on the use classification of a site. In the case of a single family dwelling, the standard trip rate is 9.57 average daily trips per dwelling, and for PS -RA 00336 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 %z Orange Avenue - -- - -- — -- — - -- -Page 7 of 9 duplexes the standard trip rate is 6 -72 average daily trips per dwelling. Trip rates for residential care facilities are 2.74 average daily trips per each occupied bed. Based on these standards, a 50 -bed residential care facility would generate approximately 137 average daily trips. The evidence shows this facility will generate average daily trips substantially in excess of the surrounding single- and two- family dwellings. C. Whether granting the requested accommodation would substantially undermine any express purpose of either the City's General Plan or an applicable Specific Plan. General Plan Policy LU 6.2.7 requires the City to regulate day care and residential care facilities to the maximum extent allowed by federal and state law. A request for reasonable accommodation is consistent with this policy. The City adopted Ordinance No. 2008 -005 in order to implement General Plan Policy LU 6.2.7. Granting the reasonable accommodation request to treat the facility as a single housekeeping unit rather than as a residential care facility would exempt the facility from the provisions of Ordinance No. 2008 -005, and preclude the City from applying any reasonable regulations on the facility, thereby undermining the express purpose of the General Plan with regard to these facilities. The Hearing Officer finds that the facility does not operate in manner consistent with the NBMC definition of a single housekeeping unit, as provided for in NBMC Section 20.03.030 (Definitions): "The functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit, including the joint use of and responsibility for common areas, and sharing household activities and responsibilities such as meals, chores, household maintenance, and expenses, and where, if the unit is rented, all adult residents have chosen to jointly occupy the entire premises of the dwelling unit, under a single written lease with joint use and responsibility for the premises, and the makeup of the household occupying the unit is determined by the residents of the unit rather than the landlord or property manager." There was no evidence provided that clients may be an interactive group of persons jointly occupying a single dwelling unit and sharing common areas. There is no evidence of joint responsibility for meals or expenses. or a single written lease, and the members of the household are selected by the facility operator rather than by other residents. The applicant characterizes the facility as one of leased rooms to tenants with a use pattern described by the individual leases as more closely resembling a boarding house or group residential use, as defined by the NBMC, than a single housekeeping unit. Except for the fact that facility's residents are recovering alcoholics, the facility would be classified as a prohibited Group Residential use, or a. PS -RA 00337 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/2 Orange Avenue Pale 8 of 9 Boarding or Rooming House as that term is defined NBMC 20.05.030. A and C, "Residential Use Classifications, "A residence or dwelling unit, or part thereof, wherein a room or rooms are rented under two or more separate written or oral rental agreements, leases or subleases or combination thereof...," and "Shared living quarters, occupied by two or more persons not living together as a single housekeeping unit." D. In the case of a residential care facility. whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation. There are no other documented facilities, similar in nature or operation to the subject facility, within the vicinity of the subject facility. In considering whether granting the requested accommodation would create an institutionalized environment, however, it is noted that approximately 56 to 58 individuals could be housed at the three subject facilities if some rooms, not currently labeled as "bedrooms" on the plans on file at the City, were used as bedrooms. An unregulated occupancy of the facility would result in an overconcentration of the use of the facility and the potential institutionalization of the residential neighborhood with associated adverse secondary impacts such as noise, overcrowding, unruly behavior by residents of the facility, a disproportionate utilization of available on- street parking by the facility, and traffic impacts. 5. Finding: That the requested accommodation will not under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. Facts in support of finding. A request for reasonable accommodation may be denied if granting it would pose "a direct threat to the health or safety of other individuals or result in substantial physical damage to the property of others," (refer to 42 U.S.C. § 3604(f)(9). This is a very limited exception and can only be used when, based on the specific facts of a situation, a requested accommodation results in a significant and particularized threat. Federal cases interpreting this exception in the Fair Housing Amendment Act, adopted in 1988, indicate that requested accommodations cannot be denied due to generalized fears of the risks posed by disabled persons. WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(b)(3) (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. PS -RA 00338 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 % Orange Avenue Paae 9 of 9 NOW THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby denies with prejudice Request No. 1 of Reasonable Accommodation No. 2008 -001. Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS :'04 DAY OF14 2009. ATTEST: C� "' ,, dy Clerk By: Thomas W. Allen, Hearing Officer PS -RA 00339 � � • t • Hearing Officer's Resolution No. HO- 2009 -018 Denying Request No. 2 of Pacific Shores' Reasonable Accommodation Request (July 2, 2009) PS -RA 00340 RESOLUTION NO. HO- 2009 -018 A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH DENYING WITH PREJUDICE REQUEST NO. 2 OF A REQUEST FOR REASONABLE ACCOMMODATION NO. 2008 -001 FOR AN EXISTING SOBER LIVING FACILITY LOCATED AT 3309 CLAY STREET, 492 ORANGE AVENUE, AND 4921/2 ORANGE AVENUE (PA 2008 -181). WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings; and WHEREAS, the adoption of Ordinance No. 2008 -05 amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC. Chapter 20.98 sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, an application was filed by Pacific Shores Properties, with respect to properties located at 3309 Clay Street, 492 Orange Avenue, and 492 '% Orange Avenue, and legally described as Lot 2 and Lot 1 in Block 0 of Tract No. 27 in the City of Newport Beach, County of Orange, State of California (APN 425- 282 -02 and 425 - 282 -01), requesting approval of the following five. requests for reasonable accommodation: That residents of its facility at 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue be treated as a single housekeeping unit as defined in Section 20.03.030 of the Newport Beach Municipal Code; 2. That the City no longer classify or treat the properties at 3309 Clay Street, 492 Orange Avenue and 492 '% Orange Avenue as "Residential Care Facilities," as defined by NBMC Section 20.05.010; 3. That the City classify the use of the dwellings at 3309 Clay Street, 492 Orange Avenue and 492 Yz Orange Avenue as a legal nonconforming use; 4. That all code provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue and 492 Yz Orange Avenue (including Zoning Code, Building. Code, fire safety and any other applicable code) be applied to those properties in the same manner that those codes are applied and enforced to single family and two family residential uses located in residential districts zoned R -2; and 5. That the City waive the requirement of NBMC Section 20.91A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit. WHEREAS, a public hearing was held on March 25, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and PS -RA 00341 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/2 Orange Avenue Paae 2 of 10 purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was presided over by Thomas W. Allen. Hearing Officer for the City of Newport Beach: and WHEREAS, pursuant to Section 20.98.025(6) of the NBMC, the written decision to approve, conditionally approve, or deny a request for reasonable accommodation shall be based on findings, all of which are required for approval. WHEREAS, with respect to Reasonable Accommodation Request No. 2, that the City no longer classify or treat the properties at 3309 Clay Street, 492 Orange Avenue and 492'% Orange Avenue as "Residential Care Facilities," as defined by NBMC Section 20.05.010, not all of the five findings required can be made pursuant to Section 20.98.025 (B) of the NBMC, as follows: Finding: That the requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing Laws. Facts in support of finding. The applicant submitted a statement signed by the facility manager that every resident of the facility is in recovery from alcohol or drug addiction. Federal regulations and case law have defined recovery from alcoholism and drug addiction as a disability, because it is a physical or mental condition that substantially impairs one or more major daily life activities. 2. Finding: That the requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. Facts do not support the finding. In the request for reasonable accommodation, the applicant requests that the facility not be treated as a residential care facility, and states that it is necessary the facility be treated as a single housekeeping unit. The applicant asserts that the residents cannot live independently without the threat of relapse, because the environment provided by the facility is necessary to achieve an opportunity for residents to live in a setting which is a self -paced recovery option that provides time for personal psychological growth while avoiding the use of alcohol and other substances. The applicant also asserts that without the sober living environment offered by the facility, residents of the facility would not be able to live in a supportive environment in a residential area. The Hearing Officer finds that the requested accommodation is not necessary because the requested exemption goes beyond that which is necessary to achieve the goal of enabling disabled individuals to reside at the applicant's facility. The residential use classifications listed in Section 20.10.020 of the NBMC are. limited to: PS-RA 00342 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/z Orange Avenue Paae 3 of 10 Day Care, Limited (Large and Small Child Care Homes — not applicable) • Group Residential (Not Single Housekeeping Units — prohibited in all residential districts) • Multifamily Residential (Single Housekeeping Units a prerequisite to be considered MFR use) • Parolee /Probationer Homes (Prohibited in all residential districts) Residential Care (General Licensed, General Unlicensed, Small Licensed, Small Unlicensed) (Not Single Housekeeping Units, but not prohibited Group Residential because residents are disabled) • Integral Facilkies/Integral Uses (Two or more residential care facilities that are integrated components of one operation) • Single - Family Residential (Single Housekeeping Unit a prerequisite to be considered a single family residential use of a dwelling) • Two - Family Residential (Single Housekeeping Units a prerequisite to be. considered a two - family residential use of a dwelling.) NBMC Section 20.05.030 defines the various Residential Care use classifications as follows: Residential Care facilities, General. Any place, site or building, or groups of places, sites or buildings, licensed by the State or unlicensed, in which seven or more individuals with a disability reside who are not Irving together as a single housekeeping unit and in which every person residing in the facility (excluding the licensee, members of the licensee's family, or persons employed as facility staff) is. an individual with a disability. Residential Care Facilities, Small Licensed. State - licensed facilities that provide care, services, or treatment in a community residential setting for six or fewer adults, children, or adults and children and which are required by State law to be treated as a single housekeeping unit for zoning purposes. Small licensed residential care facilities shall be subject to all land use and property development regulations applicable to single housekeeping units. Residential Care Facilities, Small Unlicensed. Any place, site or building, or groups of places, sites or buildings, which is not licensed by the State of California and is not required by law to be licensed by the State, in which six or fewer individuals with a disability reside who are not living together as a single housekeeping unit and in which every person residing in the facility (excluding persons employed as facility staff) is an individual with a disability. The applicant's facility is also considered an Integral Facility. Integral Facility residential use classifications are defined as follows: Integral Uses, Any two or more licensed or unlicensed residential care programs commonly administered by the same owner, operator, management company or PS -RA 00343 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492'/2 Orange Avenue Pape 4 of 10 licensee, or any affiliate of any of them, in a manner in which participants in two or more care programs participate simultaneously in any care or recovery activity or activities so commonly administered. Any such integral use shall be considered one use for purposes of applying Federal, State and local laws to its operation. If the facility is not treated and classed as a residential care facility or integral facility land use, the most similar land use classification for the subject use is a group residential use, as defined in NBMC Section 20.05.030(C). The group residential use classification is defined as: Group Residential. Shared living quarters, occupied by two or more persons not living together as a single housekeeping unit. This classification includes, without limitation, boarding or rooming houses, dormitories, fraternities, sororities, and private residential clubs, -but excludes residential care facilities (general, small licensed, and small unlicensed) and residential hotels (see Single -Room Occupancy (SRO) Residential Hotels, Section 20,05.050(EE)(4)). Group residential uses include boarding houses, rooming houses, dormitories, fraternities, sororities, and private.residential clubs but expressly exclude residential care facilities; however, group residential uses are not permitted in any residential district in the City. Parolee/Probationer homes are also prohibited in all residential districts. The remaining applicable land use classifications provided by Section 20.10.020, Single - Family, Two - Family and Multifamily Residential, are land use classifications that are also considered for use by single housekeeping units. If occupancy of a dwelling categorized as a single - family residential use was not conducted as a single housekeeping unit, the occupancy would transform the use of that dwelling to a prohibited group residential use. The Hearing Officer finds that the facility does not operate in manner consistent with the NBMC definition of a single housekeeping unit, NBMC Section 20.03.030 (Definitions): "The functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit, including the joint use of and responsibility for common areas, and sharing household activities and responsibilities such as meals, chores, household maintenance, and expenses, and where, if the unit is rented, all adult residents have chosen to jointly occupy the entire premises of the dwelling unit, under a single written lease with joint use and responsibility for the premises, and the makeup of the household occupying the unit is determined by the residents of the unit rather than the landlord or property manager." The facility's operations most closely resemble a boarding house use. Copies of leases submitted to ADP, entitled "Agreement to Stay in My House," indicate that each resident enters a separate written agreement to reside at the facility. The applicant characterizes the facility as one of leased rooms to tenants with a use pattern described by the individual lease PS -RA 00344 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/z Orange Avenue Paae 5 of 10 that more closely resembles the NBMC definition of a boarding house or group residential use than a single housekeeping unit. Except for the fact that facility residents are recovering alcoholics, the facility would be classified as a prohibited group residential use, or boarding or rooming house as that term is defined in NBMC 20.05.030. A and C, "Residential Use Classifications, "A residence or dwelling unit, or part thereof, wherein a room or rooms are rented under two or more separate written or oral rental agreements, leases or subleases or combination thereof...," and 'Shared living quarters, occupied by two or more persons not living together as a single housekeeping unit." There was no evidence provided that clients may be an interactive group of persons jointly occupying a single dwelling unit and sharing common areas, of joint responsibility for meals or expenses, or of a single written lease. Additionally, the members of the household are determined by the facility operator and not by other residents. Contradictory information exists in the record, submitted by the applicant in 2007, regarding whether the facility was a sober living facility or a group of boarding houses. The Hearing Officer has determined that the requested accommodation to not be classified or treated as a residential care facility is not necessary to achieve the goal of providing individuals with a disability an equal opportunity to use and enjoy a dwelling. Pursuant to NBMC Section 20.98.025(C), the. City may consider the following factors in determining whether the requested accommodation is necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling: A. Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability. If the requested accommodation were to be granted, that the applicant's current and potential clients could live in the home located in an R -2 District along with other individuals in recovery. This is a situation can serve to affirmatively enhance the quality of life of a person in recovery from addiction, unless overcrowding of the facility or institutionalization of the neighborhood interferes with the resident's re- integration into society. B. Whether the individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. The Hearing Officer has determined the exemption requested goes beyond what is necessary to achieve the goal of enabling disabled individuals an equal opportunity to enjoy the housing type of their choice. The City indicated that more narrowly tailored exemptions could enable disabled individuals to reside at the applicant's facility, and the applicant submitted additional requests as a result. PS -RA 00345 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 4921/20 range Avenue Paoe 6 of 10 C; In the case of a residential care facility, whether the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants. The applicant did not submit evidence that not treating the facility as a residential care facility is necessary to make the facility viable in light of the current market for the type of services it provides. The applicant did not respond to requests by the City for such evidence. Therefore, is the Hearing Officer has concluded that not being treated as a use classification other than a residential care facility use is not necessary for the facility to be financially viable. D. In the case of a residential care facility, 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. The City has estimated that there are approximately 233 approved sober living beds in the City. Operators of many sober living facilities within the City have reported decreased census and vacant beds, which could afford potential Pacific Shores clients an equal opportunity to live in a sober living environment. The evidence presented as part of the application does not support the applicant's contention that not treating the facility as a residential care facility use will change the availability of the existing supply of facilities of a similar nature, or afford disabled individuals a substantially greater access to an equal opportunity to live in a residential setting. Finding: That 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. Facts in support of finding. The Hearing Officer has determined that treating the facility as a a residential care facility would not impose a identifiable undue financial or administrative burden on the City. However, in making this finding, it is noted that approximately 56 to 58 individuals could be housed at the three properties if some rooms not currently labeled as "bedrooms" on plans, on file at the City, were used as bedrooms. If resident populations are unregulated and previous code violations associated with the property were continued, currently unidentifiable financial or administrative burdens could arise as a result. 4, Finding: That 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. PS -RA 00346 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 'h Orange Avenue Page 7 of 10 Facts do not support the finding. The Hearing Officer finds that other than being treated as a single housekeeping unit. there was no benefit to the applicant for being treated as anything other than a residential care facility. The Hearing Officer also found in the applicant's request for Reasonable Accommodation Request No. 1 that treating the applicant's facility as a single housekeeping unit would fundamentally alter the nature of the City's zoning program. Groups living as a single housekeeping unit are permitted to live together in any residential zone in Newport Beach. The NBMC states that, with the exception of groups living together in a residential care facility, groups not living as a single housekeeping unit are prohibited from establishing residences in any of the City's residential zones. All residential care facilities in the City have already received a reasonable accommodation from the NBMC restrictions on groups not living as a single housekeeping unit pursuant to provisions of the NBMC allowing new facilities to be established and existing facilities to continue in their current locations, subject to approval of a use permit with appropriate impact mitigation. licensed facilities housing six or fewer residents are permitted in any residential zone of the City. Although the residents of residential care facilities receive preferential treatment because of their disabled status, the NBMC applies regulations to unlicensed facilities and large licensed facilities of seven or more residents. These regulations are in place to ensure that the fundamental purposes of the Zoning Code can be achieved and to mitigate the adverse secondary impacts that higher density residential care facilities may have on the surrounding neighborhood. Treating a residential care facility as a single housekeeping unit entirely exempts the facility from any reasonable controls allowed by the City. As such the City is unable to make any reasonable effort to reduce the adverse secondary impacts such as noise, overcrowding, or unruly behavior by residents of the facility, disproportionate use of available on- street parking to the detriment of the neighborhood, and to insure that an overconcentration of facilities within a single block does not occur resulting in a quasi - institutional environment for the neighborhood. Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the City's zoning program: A. Whether the requested accommodation would fundamentally after the character of the neighborhood. Since the establishment of the first of the dwellings as a sober living environment, a number of adverse secondary impacts have been reported to the City by residents of the neighboring properties, thereby altering the character of the neighborhood. Some of the impacts reported associated with the operation of the facility include, but are not limited. to: PS-RA 00347 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/2 Orange Avenue Page 8 of 10 • Meetings held atone or more of the applicant's facilities • Excessive use on on- street parking by facility residents and their guests • Secondhand smoke • Noise late at night a. Whether the accommodation would result in a substantial increase in traffic or insufficient parking. The applicant has stated that residents are permitted to have personal vehicles at the properties, but that few residents own cars. The applicant has stated that "all park along Old Newport or along the commercial park area on Orange. No resident parks along Clay or the non - commercial parking area along Orange (i.e., Orange NE of Clay)." Each building at the subject site provides two enclosed parking spaces, consistent with the NBMC parking requirement for single - family and two- family residential uses. The NBMC parking requirement for residential care facilities is one off - street parking and loading space for every three beds. As a residential care facility, with 50 resident clients, the Pacific Shores facility would be required to provide 17 off - street parking spaces. Since the facility does not provide the required 17 off - street parking spaces, granting the requested accommodation would result in insufficient on -site parking. The Institute of Transportation Engineers (ITE) establishes standards for trip generation rates based on the use classification of a site. In the case of a single family dwelling, the standard trip rate is 9.57 average daily trips per dwelling, and for duplexes the standard trip rate is 6.72 average daily trips per dwelling. Trip rates for residential care facilities are 2.74 average daily trips per each occupied bed. Based on these standards, a 50 -bed residential care facility would generate approximately 137 average daily trips. The evidence shows this facility will generate average daily trips substantially in excess of surrounding single- and two- family dwellings. C. Whether granting the requested accommodation would substantially undermine any express purpose of either the City's General Plan or an applicable Specific Plan. General Plan Policy LU 6.21 requires the City to regulate day care and residential care facilities to the maximum extent allowed by federal and state law to minimize impacts on residential neighborhoods. The City adopted Ordinance No. 2008 -005 in order to implement General Plan Policy LU 6.2.7. Granting the reasonable accommodation request to not classify or treat the facility as a residential care facility, but rather to treat the facility as a single housekeeping unit, would exempt the facility from the provisions of Ordinance No. 2008 -005, and preclude the City from applying PS -RA 00348 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/z Orange Avenue Page 9 of 10 any reasonable regulations on the facility, thereby undermining the express purpose of the General Plan with regard to these facilities. D. In the case of a residential care facility, whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation. There are no other documented facilities, similar in nature or operation to the subject facility, within the vicinity of the subject facility. In considering whether granting the requested accommodation would create an institutionalized environment, however, it is noted that approximately 56 to 58 individuals could be housed at the three subject facilities if some rooms, not currently labeled as "bedrooms" on the plans on file at the City, were used as bedrooms. The Hearing Officers finds that the unregulated occupancy of the facility could result in an overconcentration of the use of the facility and the potential institutionalization of the residential neighborhood with potentially associated adverse secondary impacts such as noise, overcrowding, unruly behavior by residents of the facility, a disproportionate utilization of available on- street parking by the facility, and traffic impacts. Each building at the subject site provides two enclosed parking spaces, consistent with the NBMC parking requirement for single - family and two- family residential uses. The NBMC requires one off - street parking and loading space be provided for every three beds in a residential care facility. As a residential care facility, with 50 resident clients, the Pack Shores facility would be required to provide 17 off - street parking spaces. The facility does not provide the required 17 off - street parking spaces and the facility utilizes on- street parking for staff and visitors. The Institute of Transportation Engineers (ITE) establishes standards for trip general rates based on the use classification of a site. The standard trip rate for a single - family dwelling is 9.57 average daily trips per dwelling, and for duplexes the standard trip rate is 6.72 average daily trips per dwelling. Trip rates for residential care facilities are 2.74 average daily trips per each occupied bed. Based on these standards, a 50- bed residential care facility would generate approximately 137 average daily trips. Based on this evidence, the facility would generate average daily trips substantially in excess of the surrounding single- and two- family dwellings, thereby altering the residential character of the neighborhood to a more institutionalized environment. Finding: That the requested accommodation will not under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. PS -RA 00349 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/i Orange Avenue __ age 10 of 10 Facts in support of finding. A request for reasonable accommodation may be denied if granting it would pose "a direct threat to the health or safety of other individuals or result in substantial physical damage to the property of others," (refer to 42 U.S.C. § 3604(f)(9). This is a very limited exception and can only be used when, based on the specific facts of a situation, a requested accommodation results in a significant and particularized threat. Federal cases interpreting this exception in the Fair Housing Amendments Act, adopted in 1988, indicate that requested accommodations cannot be denied due to generalized fears of the risks posed by disabled persons. WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(b)(3) (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. NOW THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby denies with prejudice Request No. 2 of Reasonable Accommodation No. 2008 -001. Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 2ND DAY OF JULY, 2009. ATTEST: ,._r..iA_� le , {r' -fCity Clerk - By: -�i � IIIJJJ Thomas W. Allen, Hearing Officer PS -RA 00350 1 � • Hearing Officer's Resolution No. HO- 2009 -019 Approving Request No. 3 of Pacific Shores' Reasonable Accommodation Request (July 2, 2009) PS-RA 00351 RESOLUTION NO. HO- 2009 -019 A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH APPROVING REQUEST NO. 3 OF A REQUEST FOR REASONABLE ACCOMMODATION NO. 2008 -001 FOR AN EXISTING SOBER LIVING FACILITY LOCATED AT 3309 CLAY STREET, 492 ORANGE AVENEUE, AND 492'/; ORANGE AVENUE (PA 2008 -181). WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings; and WHEREAS, the adoption of Ordinance No. 2008 -05 amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC. Chapter 20.98 sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, an application was filed by Pacific Shores Properties, with respect to properties located at 3309 Clay Street, 492 Orange Avenue, and 492 '% Orange Avenue, and legally described as Lot 2 and Lot 1 in Block 6 of Tract No. 27 in the City of Newport Beach, County of Orange, State of California (APN 425 - 282 -02 and 425- 282 -01), requesting approval of the following five requests for reasonable accommodation: 1. That residents of its facility at 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue be treated as a single housekeeping unit as defined in Section 20.03.030 of the Newport Beach Municipal Code; 2. That the City no longer classify or treat the properties at 3309 Clay Street, 492 Orange Avenue and 492 'r4 Orange Avenue as "Residential Care Facilities," as defined by NBMC Section 20.05.010; 3. That the City classify the use of the dwellings at 3309 Clay Street, 492 Orange Avenue and 492 % Orange Avenue as a legal nonconforming use; 4. That all code provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue and 492 ''Y2 Orange Avenue (including Zoning Code, Building Code, fire safety and any other applicable code) be applied to those properties in the same manner that those codes are applied and enforced to single family and two family residential uses located in residential districts zoned R -2; and 5. That the City waive the requirement of NBMC Section 20.91A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit. WHEREAS, a public hearing was held on March 25 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and PS -RA 00352 City of Newport Beach Hearing Officer Resolution 3309 Clay Street, 492 Orange Avenue 492 '/2 Orange Avenue 2 of 8 purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was presided over by Thomas W. Allen, Hearing Officer for the City of Newport Beach; and WHEREAS, Pursuant to Section 20.98.025(B) of the NBMC, the written decision to approve, conditionally approve, or deny a request for reasonable accommodation shall be based on the following findings, all of which are required for approval. WHEREAS, with respect to Reasonable Accommodation Request No. 3, that the City treat the use of the dwellings at 3309 Clay Street, 492 Orange Avenue and 492 '/2 Orange Avenue as a legal nonconforming use, the required findings of Section 20.98.025(6) of the NBMC, and facts in support of such findings can be made as follows: Finding: That the requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing Laws. Facts in support of finding. The applicant submitted a statement signed by the facility manager that every resident of the facility is in recovery from alcohol or drug addiction. Federal regulations and case law have defined recovery from alcoholism and drug addiction as a disability, because it is a physical or mental condition that substantially impairs one or more major daily life activities. 2. Finding: That the requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. Facts in support of the finding. The applicant requested that the use of the dwellings be "grandfathered" as a nonconforming use, with the intent that classifying the facility as a nonconforming use meant that Pacific Shores could legally continue to operate as it had before. Ordinance No. 2008 -005 was adopted, and that the ordinance would have no effect on Pacific Shores. However, the City was already treating the dwellings as a nonconforming use. If the Pacific Shores facility were not treated as a nonconforming use it would be considered an illegal use and thus subject to abatement, both before and after adoption of Ordinance No. 2008 -05. Under NBMC Section 20.62.090(A), nonconforming uses in residential zones that had not received a use permit or reasonable accommodation became subject to abatement on the effective date of the ordinance, February 22. 2008. For nonconforming uses not involved in the administrative process through a use permit or reasonable accommodation application, abatement was to proceed by February 22, 2009, unless the use had applied for and received an extension of the abatement period for amortization purposes. PS -RA 00353 City of Newport Beach Hearing Officer Resolution 3309 Clay Street, 492 Orange Avenue 492'/ Orange Avenue Evidence exists that some or all of the applicant's dwelling units at 3309 Clay Street, 492 Orange Avenue and 492 Y2 Orange Avenue had not established as residential care occupancies in accordance with requirements of the Newport Beach Municipal Code. The facility appeared to exceed six residents, and had not received a Federal Exception Permit (FEP), required for facilities housing more than six residents under the ordinance in effect prior to the effective date of Ordinance No. 2008 -05. Pacific Shores expressly declined to apply for a use permit required for Residential Care Facilities, General Unlicensed after the effective date of Ordinance No. 2008 -05, and did not submit an application for reasonable accommodation until September, 2008. Therefore, prior to September 24, 2008, the date the applicant's first reasonable accommodation application was filed with the City, the use was subject to abatement as an illegal use. As a result, disabled residents residing at the facility at that time would have been deprived of their current housing if abatement had occurred. Therefore, treating the facility as a nonconforming use was necessary to avoid depriving disabled individuals of their housing. The Hearing Officer determined that the use could continue to be treated as a nonconforming use, but was not willing to permanently classify the use as nonconforming, or exempt it from the provisions of Ordinance No, 2008-05. Permanently designating an illegal use as a legally established nonconforming use is a broader accommodation than necessary to afford disabled individuals an opportunity to use and enjoy a dwelling. Therefore, although the City cannot " classify" or "grandfather" an illegal use as a nonconforming use through the reasonable accommodation process, it can continue to accommodate the needs of disabled residents by treating the facility as 9 it were a nonconforming use, for purposes of the current provisions of Ordinance No. 2008 -05. Pursuant to NBMC Section 20.98.025(C), the City may consider the following factors in determining whether the requested accommodation is necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling: A. Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability. As stated above, had the City not treated Pacific Shores as If it were a nonconforming use in a residential zone, the facility would have been subject to abatement prior to Pacific Shores' September 2008 filing of an application for reasonable accommodation. Presumably, the quality of life for disabled individuals living on the premises during this time was affirmatively enhanced because residents were not required to leave their current dwelling. PS -RA 00354 City of Newport Beach Hearing Officer Resolution 3309 Clay Street, 492 Orange Avenue 492 Y2 Orange Avenue Page 4 of 8 B. Whether the individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. If the City had not treated Pacific Shores as if it were a nonconforming use in a residential zone, the facility would have been subject to abatement prior to Pack Shores' September 2008 filing of an application for reasonable accommodation, and facility residents could have been denied the housing of their choice. C. In the case of a residential care Facility, whether the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants. The applicant has expressly declined to submit information on financial viability. Therefore, staff was unable to analyze this factor. D. In the case of a residential care facility, 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. The NBMC authorizes the City to consider other facilities that are of a "similar nature and operation." Through implementation of Ordinance No. 2008 -005, it is estimated approximately 233 sober living beds have been approved within the City. Operators of sober living facilities within the City have reported a substantial number of vacant beds, which could provide Pacific Shores' residents with an equal opportunity to live in a sober living environment without the requested accommodation. 3. Finding: That 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. Facts in support of finding. Treating Pacific Shores as if it were a nonconforming use has not created an undue financial or administrative burden on the City. 4. Finding: That 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. Facts in support of finding. The applicant requested. that the use of the dwellings be "grandfathered" as a nonconforming use, with the intent that classifying the facility as a nonconforming use meant that Pacific Shores could legally continue to operate as it had before Ordinance No. 2008 -005 was adopted, and that the ordinance would have no effect on PS -RA 00355 City of Newport Beach Hearing Officer Resolution 3309 Clay Street, 492 Orange Avenue 492 1 /2 Orange Avenue Page 5 of 8 Pack Shores. There is evidence on file at the City that some or all of the applicant's dwelling units at 3309 Clay Street, 492 Orange Avenue and 492 '/2 Orange Avenue had not established as residential care occupancies in accordance with requirements of the Newport Beach Municipal Code. The Hearing Officer has determined that permanently designating an illegally established use as a legal nonconforming use, as requested by the applicant, would fundamentally alter the nature of that portion of the zoning program that seeks to discourage illegal uses and treat legally established nonconforming uses in a neutral manner. Treating Pacific Shores more favorably than other nonconforming uses in residential districts by exempting it from the provisions of Ordinance No. 2008 -05, as requested by the applicant, would fundamentally undermine some of the purposes for adopting the Ordinance. One of the stated purposes is to: and: ...to promote the public health, safety, and welfare and to implement the goals and policies of the Newport Beach General Plan by ensuring that conditional uses in residential neighborhoods do not change the character of such neighborhoods as primarily residential communities. ... to protect and implement the recovery and residential integration of the disabled, including those receiving treatment and counseling in connection with dependency recovery. In doing so, the City seeks to avoid the overconcentration of residential care facilities so that such facilities are reasonably dispersed throughout the community and are not congregated or over - concentrated in any particular area so as to institutionalize that area. However, treating Pacific Shores as if it were a nonconforming use prior to submittal of its reasonable accommodation application did not fundamentally undermine the basic purposes which Ordinance No. 2008 -05 was put in place to achieve. The Hearing Officer has determined that the use could continue to be treated, as a nonconforming use, but not be permanently classirred as a nonconforming use or exempted from the provisions of Ordinance No. 2008 -05. Permanently designating an illegal use as a nonconforming use is a broader accommodation than necessary to afford disabled individuals an opportunity to use and enjoy a dwelling. Therefore, the Hearing Officer has determined that although the City cannot "classify" an illegal use as a nonconforming use through the reasonable accommodation process, it can continue to accommodate the needs of disabled residents by treating the facility as if it were a nonconforming use, for purposes of the current provisions of Ordinance No. 2008 -05. PS -RA 00356 City of Newport Beach Hearing Officer Resolution 3309 Clay Street. 492 Orange Avenue 492' /2 Orange Avenue -- -- Page 6 of 8 Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the City's zoning program. A. Whether the requested accommodation would fundamentally alter the character of the neighborhood. Treating Pacific Shores as if it were a. nonconforming use will not fundamentally alter the character of the neighborhood. The facility has continued to operate and was not abated- Testimony from neighbors indicated that the facility had an impact on the neighborhood during this period. However, the impacts should not be permanent, as the Hearing Officer's denial of the other reasonable accommodation requests will result with the impacts being mitigated through the discontinued use of the dwellings as a sober living facility. Therefore, treating Pacific Shores as a nonconforming use has not resulted in a permanent fundamental alteration of the character of the neighborhood. B. Whether the accommodation would result in a substantial increase in traffic or insufficient parking. For the same reasons given in Factor A, treating Pacific Shores as if it were a nonconforming use has not resulted in a substantial permanent increase in traffic or insufficient parking. C. Whether granting the requested accommodation would substantially undermine any express purpose of either the City's General Plan or an applicable Specific Plan. The General Plan Policy LU 6:2.7 provides that the City shall regulate residential care facilities to the maximum extent allowed by federal and state law to minimize impacts on residential neighborhoods. For the same reasons given in Factor A, treating Pacific Shores as if it were a nonconforming use will not substantially undermined the express purpose of the General Plan. D. In the case of a residential care facility, whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation. For the same reasons given in Factor A, treating Pacific Shores as if it were a nonconforming use will not permanently create an institutionalized environment in the neighborhood. In analyzing other requests for reasonable accommodation from Pacific Shores, staff found that granting Pack Shores approval to continue to operate all three dwelling units at the population levels requested by the applicant (50 PS-RA 00357 City of Newport Beach Hearing Officer Resolution 3309 Clay Street, 492 Orange Avenue 492' /2 Orange Avenue Paae 7 of 8 residents) would have created an institutionalized environment due to the number of resident clients, and number and proximity of units on a single block housing residential care uses. However, treating Pacific Shores as a nonconforming use did not exempt Pacific Shores from the reasonable accommodation process that would have required any accommodation granted to contain conditions to mitigate institutionalization. 5. Finding: That the requested accommodation will not, under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. This finding can be made A request for reasonable accommodation may be denied if granting it would pose "a direct threat to the health or safety of other individuals or result in substantial physical damage to the property of others." See 42 U.S.C. § 3604(f)(9). This is a very limited exception and can only be used when, based on the specific facts of a situation, a requested accommodation results in a significant and particularized threat. Federal cases interpreting this exception in the FHAA indicate that requested accommodations cannot be denied due to generalized fears of the risks posed by disabled persons. WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(bx3) (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. PS-RA 00358 City of Newport Beach Hearing Officer Resolution 3309 Clay Street, 492 Orange Avenue 492 '/2 Orange Avenue Page 8 of 8 NOW THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby approves Request No. 3 of Reasonable Accommodation No. 2008 -001. Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 2N° DAY OF JULY, 2009. ATTEST: � 10, y�ira City Clerk By. Thomas W. Allen, Hearing Officer PS -RA 00359 TAB 10 Hearing Officer's Resolution No. HO- 2009 -020 Denying Request No. 4 of Pacific Shores' Reasonable Accommodation Request (July 2, 2009) PS-RA 00360 RESOLUTION NO. HO- 2009 -020 A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH DENYING WITH PREJUDICE REQUEST NO. 4 OF A REQUEST FOR REASONABLE ACCOMMODATION NO. 2008 -001 FOR AN EXISTING SOBER LIVING FACILITY LOCATED AT 3309 CLAY STREET, 492 ORANGE AVENUE, AND 492 % ORANGE AVENUE (PA 2008 -181). WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings: and WHEREAS, the adoption of Ordinance No. 2008 -05 amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC. Chapter 20.98 sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity, to use and enjoy a dwelling; and WHEREAS, an application was filed by Pacific Shores Properties, with respect to properties located at 3309 Clay Street, 492 Orange Avenue, and 492 'Y2 Orange Avenue, and legally described as Lot 2 and Lot 1 in Block 6 of Tract No. 27 in the City of Newport Beach, County of Orange, State of California (APN 425- 282 -02 and 425- 282 -01), requesting approval of the following five requests for reasonable accommodation: 1. That residents of its facility at 3309 Clay Street, 492 Orange Avenue and 492 '/2 Orange Avenue be treated as a single housekeeping unit as defined in Section 20.03.030 of the Newport Beach Municipal Code; 2. That the City no longer classify or treat the properties at 3309 Clay Street, 492 Orange Avenue and 492 '% Orange Avenue as "Residential Care Facilities," as defined by NBMC Section 20.05.010; 3. That the City classify the use of the dwellings at 3309 Clay Street, 492 Orange Avenue and 492 '/2 Orange Avenue as a legal nonconforming use; That all code provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue and 492'/2 Orange Avenue (including Zoning Code, Building Code, fire safety and any other applicable code) be applied to those properties in the same manner that those codes are applied and enforced to single family and two family residential uses located in.residential districts zoned R -2; and That the City waive the requirement of NBMC Section 20.91A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit. WHEREAS, a public hearing was held on March 25, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and PS -RA 00361 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '% Orange Avenue Paae 2 of 6 purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was presided over by Thomas W. Allen, Hearing Officer for the City of Newport Beach; and WHEREAS, pursuant to Section 20.98.025(6) of the NBMC, the written decision to approve, conditionally approve, or deny a request for reasonable accommodation shalt be based on findings, all of which are required for approval. WHEREAS, with respect to Reasonable Accommodation Request No. 4, that all code provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue and 492 '/i Orange Avenue, including Zoning Code, Building Code, fire safety and any other applicable code, be applied to those properties in the same manner that those codes are applied and enforced to single family and two family residential uses located in residential districts zoned R -2, not all of the five findings required can be made pursuant to Section 20.98.025 (B) of the NBMC, as follows: 1. Finding: That the requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing Laws. Facts in support of finding. The applicant has provided a signed statement certifying that all residents of the facility, excluding staff, are individuals in recovery from alcoholism or drug addiction. Federal regulations classify such individuals as disabled. 2. Finding: That the requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. Facts do not support the finding. The Hearing Officer has determined that the requested accommodation is not necessary to provide one or more individuals with a disability an equal opportunity to use and e9joy a dwelling. The Newport Beach Fire Marshal has indicated that the changes needed for the facility to comply with the California Building Code can be achieved and are not cost prohibitive. NBMC Section 20.98.025(C) allows the City to consider the following factors in determining whether the requested accommodation is necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling: A. Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability. In light of the improvements necessary to bring the facility into compliance with the PS -RA 00362 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/z Orange Avenue Pape 3 of 6 California Building Code, the granting of the accommodation to waive the requirements of the California Building Code would place the life of the facility's residents at greater risk, thereby negatively affecting the quality of life of one or more individuals with a disability. B. Whether the individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. The Hearing Officer finds that denying the accommodation will not deprive facility residents an opportunity to enjoy the housing type of their choice, assuming the facility residents have an interest in residing in a safe environment. C. In the case of a residential care facility, whether the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants. The applicant did not presented evidence that bringing the facility into compliance with the California Building Code requirements for R4 occupancies would be financially infeasible or that the facility will not be economically viable as a result of compliance with the California Building Code. D. In the case of a residential care facility, 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. Through implementation of Ordinance No. 2008,-005, it is estimated approximately 233 sober living beds have been approved within the City. Most of these beds are in facilities that have similar population density or less population density than the applicant's facility. As operators of other sober living facilities have reported decreased occupancy levels, prospective residents seeking a sober living environment of this type will not be deprived of an equal opportunity to live in a residential setting of similar type. 3. Finding: That 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. Facts in support of finding. Granting the requested accommodation would not impose an undue financial or administrative burden on the City. Treating the facility as a single family residential use would not impose a currently identifiable undue financial or administrative burden on the City, however, this finding is made with an acknowledgment of the history of PS -RA 00363 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/2 Orange Avenue Page4of6 code violations by the applicant. Pla s on file with the City indicate that approximately 56 to 58 individuals could be housed at the three facilities if some rooms not labeled as "bedrooms" on plans were used as bedrooms If resident populations were unregulated, and code violations continued, currently unider tifiable financial or administrative burdens could arise as a result. 4. Finding: That the requesteo accommodation will not result in a fundamental alteration in the nature of a ICity program, as "fundamental alteration" is defined in Fair Housing Laws and i erpretive case law. Facts do not support the finding. The State Fire Marshal made the determination that residential care occupancies with m re than six residents have characteristics that require a degree of extra protection for their r sidents. Requirements for sprinklers, adequate egress, fire alarm pull stations and smoke larms were adopted to provide a greater degree of life safety protection for a population f disabled individuals who live together. The Hearing Officer has determined that waivi ig such requirements would result in a fundamental alteration of the California Buildin Code because it undermines the basic purpose the Califomia Building Code's life safety rotections. According to the. current 2007 Califc rnia Building Code, facilities such as the applicant's are considered as R4 occupancies. The Califomia Building Code requires extra protection for R4 occupancies . in recognition of the fact that the same disabilities that require federal fair housing protection may also impact or impede the disabled individual's ability to safely and quickly exit a building during a fire. he Hearing Officer has determined that waiving required life safety protections for residents of the facility would fundamentally undermine the basic . resident safety standards the Califon is Building Code seeks to achieve. Granting the accommodation would also place neighboring properties at risk. The 2007 California Building Code requires t at R4 occupancies have commercial sprinkler systems installed rather than residential sp inkler systems. Residential sprinklers are intended to protect the occupants of a residence and give them sufficient time to evacuate a building. Commercial sprinklers are intended o extinguish a fire and prevent it from spreading to other structures. The Hearing Officer t as determined that waiving this requirement would undermine the basic purpose to provide fire protection to neighboring properties that the regulation seeks to achieve. Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following factors in determining whether the vquested accommodation would require a fundamental alteration in the nature of the City's 2oning program. A. Whether the requeste accommodation would fundamentally after the character of the neighborhood. PS -RA 00364 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 Y Orange Avenue Pane 5 of 6 B. Whether the accommodation would result in a substantial increase in traffic or insufficient parking. C. Whether granting the requested accommodation would substantially undermine any express purpose of either the City's General Plan or an applicable Specific Plan. D. In the case of a residential care facility, whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation. These factors pertain to Zoning Code issues rather than California Building Code issues; and therefore, were not analyzed as part of this request. These factors were analyzed in the applicant's Reasonable Accommodation Request No. 1, which was to apply the Zoning Code provisions to the properties in the same manner as a single housekeeping unit as defined in NBMC Section 20.03.030, and Request No. 2, which was to not treat or classify the properties as "Residential Care Facilities" as defined by NBMC Section 20.05.010. 5. Finding: That the requested accommodation will not under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. Facts do not support the finding. Many of the California Building Code requirements, including the requirement for commercial sprinkler systems, were adopted to protect neighboring structures as much as facility. residents. The Hearing Officer finds that granting the requested accommodation would result in a potential direct threat to the safety of neighboring properties and could result in substantial physical damage to the property of others. WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(b)(3) (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. PS-RA 00365 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/: Orange Avenue Page 6of6 NOW THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby denies with prejudice Request No. 4 of Reasonable Accommodation No. 2008 -001. Section 2. This action shalt become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipai. Code. PASSED, APPROVED AND ADOPTED THIS 2N° DAY OF JULY, 2009. ATTEST: ar-`v Rr. veYLO -1 City' "Clerk By: Thomas W. Allen, Hearing Officer PS -RA 00366 TAB 11 Hearing Officer's Resolution No. HO- 2009 -021 Denying Request No. 5 of Pacific Shores' Reasonable Accommodation Request (July 2, 2009) P5 -RA 00367 RESOLUTION NO. HO- 2009 -021 A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH DENYING WITHOUT PREJUDICE REQUEST NO. 5 OF A REQUEST FOR REASONABLE ACCOMMODATION NO.. 2008 -001 FOR AN EXISTING SOBER LIVING FACILITY LOCATED AT 3309 CLAY STREET, 492 ORANGE AVENUE, AND 492'/2 ORANGE AVENUE (PA 2008 -181). WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council on January 22, 2008, following noticed public hearings; and WHEREAS, the adoption of Ordinance No. 2008 -05 amended the City of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses: and WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC. Chapter 20.98 sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling; and WHEREAS, an application was filed by Pack Shores Properties, with respect to properties located at 3309 Clay Street, 492 Orange Avenue, and 492 '/2 Orange Avenue, and legally described as Lot 2 and Lot 1 in Block 6 of Tract No. 27 in the City of Newport Beach, County of Orange, State of California (APN 425 - 282 -02 and 425 - 282 -01), requesting approval of the following five requests for reasonable accommodation: 1. That residents of its facility at 3309 Clay Street, 492 Orange Avenue and 492 Y2 Orange Avenue be treated as a single housekeeping unit as defined in Section 20.03.030 of the Newport Beach Municipal Code; 2. That the City no longer classify or treat the properties at 3309 Clay Street, 492 Orange Avenue and 492 Y2 Orange Avenue as "Residential Care Facilities," as defined by NBMC Section 20.05.010; 3. That the City classify the use of the dwellings at 3309 Clay Street, 492 Orange Avenue and 492 Y2 Orange Avenue as a legal nonconforming use; 4. That all code provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue and 492'/: Orange Avenue (including Zoning Code, Building Code, fire safety and any other applicable code) be applied to those properties in the same manner that those codes are applied and enforced to single family and two family residential uses located in residential districts zoned R -2; and 5. That the City waive the requirement of NBMC Section 20.91A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit. WHEREAS, a public hearing was held on March 25, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach. California. A notice of time, place and PS -RA 00368 . City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/1 Orange Avenue Page ?__of 11 purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was presided over by Thomas W. Allen, Hearing Officer for the City of Newport Beach; and WHEREAS, pursuant to Section 20.98.025(B) of the NBMC, the written decision to approve, conditionally approve, or deny a request for reasonable accommodation shall be based on findings, all of which are required for approval. WHEREAS, with respect to Reasonable Accommodation Request No. 5, that the City waive the requirement of NBMC Section 20.91A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit, not all of the five findings required can be made pursuant to Section 20.98.025 (B) of the NBMC, as follows: Finding: That the requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing Laws. Facts in support of finding. The applicant submitted a statement signed by the facility manager that every resident of the facility is in recovery from alcohol or drug addiction. Federal regulations and case law have defined recovery from alcoholism and drug addiction as a disability, because it is a physical or mental condition that substantially impairs one or more major daily life activities. 2. Finding: That the requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. While the dwelling unit at the subject facility located at 3309 Clay Street is not currently occupied, the applicant wishes to provide housing for residents in recovery upon resolution of code compliance issues. The dwelling units at the subject facility located at 492 and 492 '/2 Orange Avenue are occupied. With all three dwelling units occupied. the applicant proposes to house up to 50 residents at the facility. Such land uses would be classified as "Residential Care Facilities, General and pursuant to Ordinance No. 2008.005, are permitted in MFR (Multifamily Residential) Districts only, subject to approval of a use permit. tinder Ordinance No. 2008 -005, such nonconforming uses had the option to apply for a use permit within 90 days following the adoption of the ordinance, or be subject to abatement. As the abatement period established by NBMC Section 20.62.090(A)(2)(a) has passed and the facility chose not to apply for a use permit at this location. this facility is now subject to abatement by the City. Facts in support of finding - As to current residents There are currently no residents in the 3309 Clay Street building, but the duplex units on Orange Avenue are occupied. The . PS-RA 00369 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 !h Orange Avenue Paae 3 of 11 Hearing Officer finds that the facility at 492 and 492 '% Orange Avenue currently houses residents who could be denied housing if abatement proceeds while they are still in residence at the facility. Facts do not support the finding - As to prospective residents: The Hearing Officer has determined this finding cannot be made at the population level requested by the applicant. The applicant seeks to house up to 50 disabled individuals in three dwelling units. It proposes 12 residents in one six- (or three) bedroom single - family home, 20 in an adjacent duplex with one 10- (or six) bedroom unit, and 18 in the 9 -(or six) bedroom unit.' Prospective residents seeking a large sober living environment in Newport Beach have an ample supply from which to choose. Through implementation of the ordinance and this process, it is estimated approximately 233 sober living beds have been approved within the City, which could provide prospective residents of Pacific Shores with an equal opportunity to reside in this type of sober living environment. The applicant rejected a staff recommendation that the size of. the facility be reduced from three dwelling units to one, with the population of that dwelling unit limited to no more than 12 resident clients, plus one on -site resident manager. NBMC Section 20.98.025(C) allows the City to consider the following factors in determining whether a requested accommodation is necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling: A. Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability. The applicant's proposed population level of 50, with 20 residents in one dwelling, 18 in another, and 12 in a third, will likely lead to overcrowding, a condition that will not enhance the residents' quality of life. While living in a supportive environment with other recovering individuals has therapeutic benefits at certain population levels, living in a 50- person facility can also be detrimental to the recovery process of the residents. The purpose of community -based care is to allow residents to re- integrate into the community as their recovery progresses. An environment primarily comprised of others in recovery presents reduced opportunities to interact with non - disabled neighbors and re -learn the norms and standards of living as fully functioning members of society. ` Number of bedrooms reported by applicant. Plans filed with the City by the applicant show three rooms identified as bedrooms at 3309 Clay Street, and six bedrooms each in 492 and.492 '/2 Orange Avenue. It has been assumed that rooms identified on plans as "sewing room," `office" °computer room," etc. are being used as bedrooms. Compliance with California Building Code requirements for bedrooms cannot be confirmed without inspection. Until this discrepancy is resolved, where the number of bedrooms" is relevant to analysis, analysis is provided for the reported number of bedrooms, and the assumed number of bedrooms on the applicant's plans. PS -RA 00370 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/z Orange Avenue - — — - Page 4 of 11 B. Whether the individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. Denial of the requested accommodation could result in abatement proceedings commencing against the facility. After abatement, current and potential residents of this facility could be denied the opportunity to live in a large three - dwelling sober living facility located in a residential district zoned for R -2 use. However, a number of similar facilities are located in the City offering sober living in two dwelling units on a single parcel. Operators of those alternate facilities have informed the City that they are currently occupied at approximately 50 percent of capacity. Therefore. recovering individuals who are denied housing at the subject facility have access to alternate housing opportunities of a similar type at other existing facilities. C. In the case of a residential care facility, whether the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants. In its September 24, 2008 application for reasonable accommodation the applicant declined to provide information regarding this factor. Therefore, the number of residents required to make the facility financially viable cannot be established. D. In the case of a residential care facility, whether the existing suppty of facilities of a similar nature and operation in the community is sufi`icient to provide individuals with a disability an equal opportunity to live in a residential setting. In its September 24, 2008 application for reasonable accommodation, the applicant declined to address this factor. The applicant stated that the requested accommodation was necessary for the present and future residents of the facility to enjoy the housing of his or her choice. The City has estimated that there are approximately 233 approved sober living beds in the City. There are many existing facilities that provide sober living environments that occupy,more than one unit of a building, or are adjacent to other sober living facilities with a similar clientlbedroom ratio, assuming all the bedrooms reported by the applicant prove to meet code requirements for bedrooms. If not, the applicants proposed population would be substantially more densely populated than a typical 12- person facility found in other areas of the City such as the Balboa Peninsula and West Newport areas. 3. Finding: That 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. PS -RA 00371 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 1/2 Orange Avenue Pane 5 of 11 Facts in support of finding - As to current residents: While the applicant did not report the average length of resident stay, other sober living facilities have reported that their resident stays range from 45 days to 180 days, with an average stay of 90 days. Assuming the applicant's facility has similar lengths of resident stays, the Hearing Officer has determined that allowing current residents to remain at the facility for the remainder of their stay will not impose an undue financial or administrative burden on the City. Facts do not support the finding - As to prospective residents: At the applicant's proposed population level, this finding cannot be made. In most cases, allowing a facility to remain at its current location when it is necessary to provide disabled individuals with an equal opportunity to use and enjoy a dwelling would not impose an undue financial or administrative burden on the City. However, due to the 2007 illegal construction at 3309 Clay Street, the ongoing delays in obtaining applicant's compliance with Building Code requirements, complaints received from neighbors about the intensity of facility use, the applicant's violation of the 2007 moratorium at 492 Orange Avenue, and the applicant's history of obfuscation regarding the type of use occurring at the facility, substantial financial and administrative burdens have already been incurred with regard to this facility.Z The Hearing Officer has determined that if the facility continues at the. same intensity of use, negative secondary impacts on neighboring properties seem likely, and the City will have to expend additional resources to get the applicant to reduce those impacts. 4. Finding: That 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. Facts. in support of the finding — As to current residents: As the abatement period established by NBMC Section 20.62.090(A)(2)(a) has passed and the facility chose not to apply for a use permit at this location, this facility is now subject to abatement by the City. While the applicant did not report the average length of resident stay, other sober living facilities have reported that their resident stays range from 45 days to 180 days, with an average stay of 90 days. Assuming the applicant's facility has similar lengths of resident stays, the Hearing Officer has determined that allowing current residents to remain at the facility for the remainder of their intended stay will not result in a fundamental alternation in the nature of the City's zoning program. ort the finding - As to prospective residents: At the applicant's proposed the Hearing Officer has determined that this finding cannot be made. In 2007, applicant's representative Mark Manderson, Sr. informed a City Code Enforcement officer verbally and in writing, and an ADP complaint officer verbally, that Pacific Shores was renting rooms to tenants and was not a recovery facility. Code Enforcement resources were required to clarify whether the property was being used as an illegal boarding house, or as housing for disabled individuals. In addition, the applicant's May 2007 moratorium violation led the City to file a state court action against the applicant, which incurred additional financial burden. PS -RA 00372 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '% Orange Avenue Paqe 6 of 11 Ordinance No. 2008 -05 places regulations on all groups not living in either a single housekeeping unit or a residential care facility classified as "Residential Care Facilities, Small Licensed." The basic purpose of these regulations is to ensure that the fundamental purposes of the NBMC can be achieved, and to mitigate adverse secondary impacts residential care facilities may have on the surrounding neighborhood. The applicant has applied for reasonable accommodation requesting that the City waive the requirement of NBMC Section 20.91A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit. Section 20.10.20 of the NBMC, "Land. Use Regulations;' prohibits large residential care facilities within the R -2 District and permits these facilities in the MFR District subject to approval of a use permit. Ordinance No. 2008 -05 was adopted to regulate large residential care facilities and states that such nonconforming facilities are subject to abatement unless the owner or occupant of the facility has timely applied for a use permit or reasonable accommodation pursuant to Chapter 20.91.A or Chapter 20.98 of the NBMC. Purpose and intent of establishing two - familv and multi - family residential zoning districts The basic purposes NBMC Chapter 20.10 seeks to achieve are set forth in NMBC Section 20.10.010. Those purposes include locating residential development in areas which are consistent with the General Plan and with standards of,public health and safety established by the Municipal Code, ensuring adequate light, air and privacy for each dwelling, protecting residents from the harmful effects of excessive noise, population density, traffic congestion and other adverse environmental effects, and providing public services and facilities to accommodate planned population and densities. The specific purpose of the Two - Family Residential (R -2) District is to provide "areas for single - family and. two- family residential land uses," and purpose of the MFR District is to provide areas for medium -to -high density residential development up to approximately 36 dwelling units per gross acre, including single - family (attached and detached), two- family and multi - family." Residential districts in the Newport Heights area zoned R -2 provide for medium- density development." The applicant requests the ability to house 50 residents in the three dwellings at the facility. Thirty-eight residents are proposed for a single parcel resulting in a high level of population density. The Hearing Officer has determined that permitting the facility to remain in its current location in the R -2 District at the applicant's proposed population level would undermine the City's basic zoning program, the purpose of which is to group uses of similar densities in the same zoning districts. PS -RA 00373 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/2 Orange Avenue -Pagel of 11 Purpose and intent of the use permit requirement Use permits are required by the Municipal Code for use classifications typically having operating characteristics that require special consideration, so that they may be located and operated compatibly with uses on adjoining properties and in the surrounding area. NBMC Section 20.91A.010 sets forth the purposes of requiring use permits in residential districts. The first stated purpose is: "...to promote the public health, safety, and welfare and to implement the goals and policies of the Newport Beach General Plan by ensuring that conditional uses in residential neighborhoods do not change the character of such neighborhoods as primarily residential communities." The second purpose is: " ... to protect and implement the recovery and residential integration of the disabled, including those receiving treatment and counseling in connection with dependency recovery. In doing so, the City seeks to avoid the overconcentration of residential care facilities so that such facilities are reasonably dispersed throughout the community and are not congregated or over- concentrated in any particular area so as to institutionalize that area." Even if the facility is exempted from Section 20.10.020 and permitted to remain in its current location without a use permit, it is not exempt from reasonable controls the City might place on it. NBMC Section 20.98.015 states that the Hearing Officer shall approve, conditionally approve or deny applications for reasonable accommodation. The Hearing Officer may impose the same conditions through the reasonable accommodation process that it can impose under through the use permit process. A reasonable accommodation with appropriate conditions can mitigate adverse secondary impacts such as noise, overcrowding, parking and traffic impacts, excessive second -hand smoke, and unruly behavior by residents of applicant's facility to the detriment of neighbors. There are situations where the reasonable accommodation mandates of fair housing laws require the Hearing Officer to grant an exemption from the use permit requirement. However, these situations should be limited to those in which the applicant can demonstrate that the accommodation would not undermine the basic purposes of the use permit requirement by demonstrating that: (a) the applicant's facility can meet all standards required for issuance of a use permit, including the operational standards of NBMC Section 20.91A.050, and the required findings of NBMC Sections 20.91A.060 and 20.91.035(A); or PS -RA 00374 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492''/z Orange Avenue Paae 8 of 11 (b) if all standards required for issuance of a use permit cannot be met, or required findings made, the applicant can demonstrate that in its particular case the inability to meet a specific standard or make a required finding does not undermine either of the two basic purposes of the use permit requirement; and (c) the applicant is willing to meet conditions that would have been required under a use permit to ensure that the character of the surrounding neighborhood is not changed, and that residential care facilities are reasonable dispersed throughout the community and are not congregated or over concentrated in any particular area so as to institutionalize that area. The Hearing Officer finds that the applicant is unable to meet the standard stated in Section 20.91A.050(C)(4). This subsection establishes a requirement that all persons with an ownership or leasehold interest in the facility, or who will participate in the operation of the facility, shall not have a demonstrated pattern or practice of operating similar facilities in violation of state or local law. Therefore, the finding that the accommodation will not result in a fundamental alteration of the nature of the City's zoning program cannot be made. In 2007, the dwelling at 3309 Clay Street housed either sober living residents or a prohibited Group Residential use in a dwelling with unpermitted construction. The dwelling at 3309 Clay Street appeared to be used by more than six residents in 2007, in violation of the NBMC requirement at that time that unlicensed facilities with more than six residents must apply for and receive a Federal Exception Permit (FEP) to establish such uses. The use at 492 Orange Avenue was established during 2007 the moratorium. Also in 2007, one facility manager made false statements to both City and state code enforcement officers and inspectors. This same manager has a long- standing history of establishing illegal unifs in other areas of the City. The City regards illegal dwelling units as one form of prohibited Group Residential or boarding house use, as it results in groups not living as a single housekeeping unit in what was originally intended to be a single dwelling unit The applicant did not demonstrate that the facility manager's past practices of,housing tenants in buildings with illegal construction and illegal units, as well as ignoring the City's moratorium ordinance, would not undermine the basic purpose of the use permit requirement. Furthermore, the applicant was not willing to meet certain conditions that would have been required under a use permit. One of the stated purposes of a use permit for uses in residential districts is to ensure that the character of the surrounding neighborhood is not changed, and that residential care 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 has the discretion to apply any degree of separation of uses which he or she deems appropriate in any given case, and to apply the American Planning Association (APA) standard of permitting one or two uses per block. At the applicant's proposed population level of 50 residents, the Hearing Officer finds it is unlikely that a reasonable accommodation with conditions similar to those imposed through a use permit could ensure that the primarily residential character of the neighborhood is not P5 -RA 00375 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '/2 Orange Avenue Page 9 of 11 changed. With 50 people in three adjacent buildings, the facilities are not reasonably dispersed throughout the community, and are concentrated in a specific area to a degree that institutionalizes that area. Pursuant to Section 20.98.025(D) of the. NBMC, the City may also consider the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the City's zoning program: A. Whether the requested accommodation would fundamentally alter the character of the neighborhood. At the population levels proposed by the applicant nearly one- quarter of the block that fronts Clay Street would be transformed into a large. residential care facility with up to 50 residents thereby fundamentally altering the character of the neighborhood. B. Whether the accommodation would result in a substantial increase in traffic or insufficient parking. The dwelling addressed as 492 Orange Avenue includes an attached tandem two -car garage, and the dwelling addressed as 492 '/� Orange Avenue includes a two -car garage (side -by -side parking spaces). The parcel located at 3309 Clay Street is developed with a single - family dwelling with an attached tandem two -car garage. The on -site parking provided at each building is consistent with the Zoning Code requirement for single - family and two - family residential development. However, the NBMC requires that a residential care facility provide one on -site parking: space for every three residential care beds, At the applicant's proposed population of 50 residents, 17 on -site parking spaces are required. The facility provides only six. The off - street parking requirements in R -2 zoning districts were not intended to accommodate a use of density proposed, and the on- street parking was not designed to accommodate the degree of overflow parking that would result from a use of this intensity. The operations and management of the facility require the use of on- street parking for residents, staff, and visitors which impacts the availability of on- street parking for use by residents of the subdivision. In addition, meetings held at one or more of the facilities are served by on- street parking, further impacting the availability of on- street parking for use by residents of the subdivision. The Institute of Transportation Engineers (ITE) establishes standards for trip generation rates based on the use classification of site. For a single- family home, the standard trip rate is 9.57 average daily trips per dwelling. For a duplex, the standard trip rate is 6.72 average daily trips per dwelling unit. Trip rates for residential care facilities are 2.74 average daily trips per each occupied bed. At the applicant's proposed population level and based on the ITE standards, a 50 -bed residential care facility would generate approximately 137 average daily trips. A duplex would P5 -RA 00376 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 Y: Orange Avenue Page 10 of 11 generate approximately 13.44 average daily trips. A single - family home would generate approximately 9.57 average daily trips per dwelling. If occupied by single housekeeping units, the ITE formula projects a total of 23.01 average daily trips for one single - family dwelling and the two units of the duplex. The evidence shows this facility will generate trips substantially in excess of average daily trips of the single housekeeping units in surrounding duplexes and single - family homes. C. Whether granting the requested accommodation would substantially undermine any express purpose of either the City's General Plan or an applicable Specific Plan. General Plan Policy LU 6.2.7 requires the City to regulate day care and residential care facilities to the maximum extent allowed by federal and state law. A request for reasonable accommodation is consistent with this policy. The City adopted Ordinance No. 2008 -005 in order to implement General Plan Policy LU 6.2.7. Granting the reasonable accommodation request to waive the requirement that unlicensed residential care facility may only be located in a MFR District with a use permit, without imposing operational conditions similar to take of a use permit would undermine the General Plan. D. In the case of a residential care facility, whether the requested accommodation would create an institutionalized environment due to the number of and distance between facilities that are similar in nature or operation. There are no other documented facilities, similar in nature or operation to the subject facility, within the vicinity of the subject facility. In considering whether granting the requested accommodation would create an institutionalized environment, however, it is noted that at the applicant's proposed occupancy, approximately 56 to 58 individuals could be housed at the three subject facilities if some rooms, not currently labeled as "bedrooms" on the plans on file at the City, were used as bedrooms. An unregulated occupancy of the facility would result in an overconcentration of the use of the facility and the potential institutionalization of the residential neighborhood with associated adverse secondary impacts such as noise, overcrowding, unruly behavior by residents of the facility, a disproportionate utilization of available on- street parking by the facility, and traffic impacts. 5. Finding: That the requested accommodation will not, under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. Facts in support of the finding. A request for reasonable accommodation may be denied if granting it would pose "a direct threat to the health or safety of other individuals or result in substantial physical damage to the property of others;' (See 42 U.S.C. § 3604(f)(9). This is a PS -RA 00377 City of Newport Beach Hearing Officer Resolution 3309 Clay Street 492 Orange Avenue 492 '% Orange Avenue Page 11 of 11 very limited exception and can only be used when, based on the specific facts of a situation, a requested accommodation results in a significant and particularized threat. Federal cases interpreting this exception in the FHAA indicate that requested accommodations cannot be denied due to generalized fears of the risks posed by disabled persons. WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section (Section 15061(b)(3) (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment of the CEQA Guidelines. it can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. NOW THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby denies without prejudice Request No. 5 of Reasonable Accommodation No. 2008 -001. Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 2ND DAY OF JULY, 2009. ATTEST: s� V C City Clerk By: > Thomas W. Allen, Hearing Officer PS-RA 00378 TAB 12 Pacific Shores' Appeal from Hearing Officer's Denial of Reasonable Accommodation (August 3, 2009) PS-RA 00379 Brown, Leilani From: Steven Polin ispolin2@earthlink.net) Sent: Monday. August 03, 2009 8:23 PM To: Brown, Leilani; pbobk% Kiff. Dave Cc: Chris Brancart; ebrancart@brancarl com; james dee; Mark Manderson; Dana (CRT) Mulhauser; paul.e.smith Subject: Pacific Shores appeat Attachments: AppealofHearingOfficersDecision res.5.pdf; AppealofHearingOfficersDecision res. 1.pdf; AppeatofHearingOfficersDecision res. 2.pdf; AppealofHearingOfficersDecision res. 3.pdf; AppealofHearingOfficersDecision res "4.pdf Nis. Brown, please find attached Pacific Shore's appeals of the decision of Hearing Officer'rhoinas Allen denying its request for a reasonable accommodation in accordance with NI1INIC 20.94.40. Please do not hesitate to contact me it you have any glue +tints or need additional information. Thank you. Steve Polin Steven Polin Law Office of Steven G. Polin 3034 Tennyson Street. NW Washington, DC 20015 202 -331 -5848 202 - 537 -2996 (fax) spot it12f Pearthlinji.net This transmission is protected by the Electronic Communications Privacy Act, I8 U.S.C. Sectioa9 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 attorney- client privilega if this information is received by anyone other than the named addressee(sL the recipient should immediately notify the sender by E -MALL and by telephone 202 - 331 -3848 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 addressee(s), except with the express consent of the sender or the named addressee(s). Thank you. PS-RA 00380 CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER Project No. PA 2008 -181 Application No. Name of Appellant Pacific Shores Properties Phone HO -2009 -019 202 - 331 -5848 Site Address 3309 Clay Street, 492 Orange Avenue, 4921/2 O x Date of Hearing Officer's decision July 22 20 Name of Applicant Pacific Shores Properties ^ ( Description of application filed with Hearing Officer) Avenue Request for a reasonable accommodation for that the City treat the aforementioned properties as a legal non conforming use by "grandfathering" the use of properties as in compliance with the NBMC prior to the adoption of Ordinance 2008 -005 Reasons for Appeal rDrantirV the request in part and denying in part, by failing to "grandfather" the use of the properties of Oa City c onoll to hear Oils appeal by vaba of The rat Oat are denial or the request was dated JWy 2. 2008, but the applicant was not given nntice 01 me (let" '6y 1Bpar dated July 22.2000. the Cily notified applicant that me appeal Pend mm from ga data of the belay wt iMlaltding Oa provision of NSMC 20.06.0:0. Steven G. Polin 08/03/2009 Signature of Appellant Date FOR OFFICE USE ONLY: ev,4m, X Received by Fee received Dat C:1Documents and Settingslsobomy4Local Sehings%Tempwary Internet FileslContenLOutlook1277DB2P7 U1ppeal of Hearing Officer's Decision.docx Revised 02 -044)9 Mb PS -RA 00381 CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER Project No. PA 2008 -181 Name of Appellant Pacific Shores Properties Application No. HO-2009-020 Phone 202 - 331 -5848 Site Address 3309 Clay Street, 492 Orange Avenue, 4921/2 Orange Avenue Date of Hearing Officers decision July 22* Name of Applicant Pacific Shores Properties (Description of application (led with Hearing Officer) 2009 Request for reasonable accommodation that the City for apply all code provision to the use of the aforementioned properties, including but not limited to zoning, building, fire safety and any other applicable codes be applied in the same manner that those codes are applied and enforced to single family and two family residential uses located in residential districts zoned R -2. Reasons for Appeal. Der0al of the request with prejudice. 'Pacific Shores Properties; does riot waive its right to challenge 00 lurisdialon of the city Council to hear this appeal by wlue of me tact marab denial of the requcM was deted July 2.2008. but the apptioant was not glen wilm*I Ne densrl. By Wit r detad July 22.21008, the City nuti led appOCaN Mat tiw appeal panod rum rr frin"date of the letter notunth! a1N1h1il me PwL'JDn of N6MC 20 .05.040. Steven G. Polin ° m�- Signature of Appellant FOR OFFICE USE ONLY' r YuVVL- Received by Fee received 08/03/2009 Date 0 /0 Date C:1Documents and SeWngs\sobomy\Locel SeltingslTemporary Internet Files \Content.Oudwkl277DB2P71Appeal of Hearing Officer's Oecision.docx Revised 02-04-09 jjb PS -RA 00382 CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER Project No. PA 2008 -181 Application No, HO -2009 -021 Name of Appellant Pacific Shores Properties Phone 202- 331 -5848 Site Address 3309 Clay Street, 492 Orange Avenue, 492112 Orange Avenue Date of Hearing Officer's decision July 22 2009 Name of Applicant Pacific Shores Properties for ( Description of application filed with Hearing Officer) Request for reasonable accommodation that the City waive the requirement of NBMC 20.91A.020 that unlicensed residential care facilities may be located only in a residential district zoned MFR with a use permit. Reasons for Appeal Denial of the request with prejudice. 'Pacific Shores Properties does not waive es right to.challange the jursdkgon of the City Council to freer this appeal by vidue of ate lact thatthe denial of ON request was dated July 2.2008. ba the applicant was not given notice of the denial _ By lenor dated July 22.2009. the Ciynotifiad applicant Oat 0a appeal period runs from the date of the letter notwithstanding the prowaion of NOMC 20.05.040. Steven G. Polin Signature of Appellant FOR OFFICE USE ONLY: 44 Receive by oaw+raare+a c.w.o. s.r. 08/03/2009 oa:wa.wna rpn...x- wr....na®..ewar.e.us Ms r00PYlW I(M:M MM Date Fee received Date CMoctunents and SettingsLsobomy1ocal SettingsWemporary Internet Fil estContent .Outlook1277DB2P7%Appeal of Hearing Officer's Dedsion.doex Revised 02 -04-09 jib PS -RA 00383 CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER Project No. PA2008 -181 Application No. HO- 2'09 -17 Name of Appellant Pacific Shores Properties Phone 202 -331 -5848 Site Address 3309 Clay Street, 492 Orange Avenue, 4921/2 Orange Avenue Date of Hearing Officer's decision July 22 • 2009 Name of Applicant Pacific Shores Properties for (Description of application filed with Hearing Officer) that the residents of the aforementioned addresses be treated as a single housekeeping unit Reasons for Appeal Denial of the request with prejudice. •Pedlic shores Properties does not waive its tighl to challenge the jurisdicw of du City Camcll at Mar aii5 appeal by MW of the W Mat Na denkV of the request was dated July 2.2oog. bul the appacant waa not given nolim of Me denial. sy later dated July 22.2uoil, the cey wirod appkam ghat the appeal period nuns from the date of the /seer nowddwlanding the provision of NSMC 2o.MOM Steven G. Polin 08/03/2009 PM^.4 M.kaliS�n}14,tM. [M h1a:V0ibM }mNMiY Signature of Appellant Date FOR OFFICE USE ONLY: "mill pawil�— - r,;ol-- 84Q Received by J Fee received Date GVDocuments and SetUngslsobomylLocal SettingsliTemporary Intemet Fite sl Content.Outlook1277DB2P71Appeat of Hearing Officers Dedsion.docx Revised 02 -04 -09 )Ib PS-RA 00384 CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE HEARING OFFICER Project No, PA 2008 -181 Application No. HO -2009 -018 Name of Appellant Pacific Shores Properties Phone 202 - 331 -5848 Site Address 3309 Clay Street, 492 Orange Avenue, 4921/2 Oran, e Avenue Date of Nearing Officers decision .iUi Y 22 2.0 Name of Applicant Pacific Shores Properties for (Description of application filed with Hearing Officer) Request for reasonable accommodation that the City no classify or treat aforementioned properties as 'Residential Care Facilities" as that term is defined by NBMC 20.05.010 Reasons for Appeal Denial of the request with prejudice. ' Padfc Shares Properties does not waive its right to challenge the jurisdiction of the City Council to hear this appeal by vhtoe of the hart that the denial of the request was dated July 2, 2009. but Na applicant was not given notice of the denial. By letter dated July 22. 2009, the CO notified applicant that the appeal period runs Bonn the date of the letter notwithstanding the Provision of NBMC 20.05.040, Steven G. Polin °"° "° "�"" 08/03/2009 �, �.n... n rW.� a .u.. w„co„d..Mlr. w �l4 Signature of Appellant Date FOR OFFICE USE ONLY: A " 2 ri- ku �- b IU Received by ;' Fee received Date c1Documents and Settingslsobornyll-ocal SettingslTemporary Internet FilesU ;ontent.Outlook�277DB2P71Appeat of Hearing Officer's Decision.doex Revised 02 -04 -09 jib PS -RA 00385 Material(s) received after the Hearing Officer packets were distributed, or received at the meeting. These material(s) were distributed to staff and made available to the public. PS -RA 00386 - Permits Online - Search by Address Page I of 3 CITY OFFICULLS I AGENDAS 6 MINUTES I CALENDAR I DEPARTMENTS I PROJECTS 1 NOW I doss e- GNIlneserviCeS RETURN NONE Street Addres = 3355 CLAY ST ACTIVITY S STATU A APP DATE T TITLE W WORK DESCRIPTION MD4097 A APPROVED P PDA H HISTORIC CASE LOG A APPROVED WITH CONDITIONS A2007 -0021 C CLOSED W WVS 0 02/23/2007 V VIOLATION - GENERAL SERV X2007 -0172 F FINAL B BLDG 0 01/24/2007 C COMBINATION PERMIT R RETAINING WALL 4' HI X 60' LONG 0163-2007 http: / /www5. city. newport- beach.ca.us /permitsN300addr login.asp 3/25/2009 PS -RA 00387 Permits Online - Search by Address B2004 -3975 FINAL BLDG 11/18/2004 BUILDING PERMIT DEMO DETACHED DUPLEX UNIT, 1180 LIV SF C2001 -0337 FINAL GRAD 10/01/2004 GRADING /DRAINAGE PERMIT DRAINAGE /NEW ATT RES 82004 -3430 FINAL BLDG 10/01 /2004 MULTI - FAMILY PROJECT ADD 14EVV DWELLING ATT TO FRONT UNIT (3364 SF /345 SF GAR) 2717 2004. APPROVED PRO] 10/01/2004 PLAN CHECK - BUILDING ADD 2ND DWELLING (3364 SF /34S SF GAR), REM. EXISTING. 12004 -0749 CLOSED INVS 06/11/2004 INVESTIGATION OWNER REQU'D TOTRIM BRANCHES, NUISANCE PA2004 -066 APPROVED PDA 04/05/2004 PLANNING DEPARTMENT PRO) CITY INITIATION OF AN AMENDMENT TO THE DISTRICTING MAP 00. 25 TO ESTABLISH A 10. FOOT STREET SIDE YARD SETBACK FOR A PROPERTY LOCATED AT 3315 CLAY STREET. CA2004-003 APPROVED PDA 04/05/2004 CODE AMENDMENTS ESTABLISH A SIDE YARD SETBACK FOR ORANGE AVENUE R2003 -1624 CLOSED RBA 1010112003 RESIDENTIAL BUILDING DUPLEX "INSPECTION DECLINED" 2349 -2002 APPROVED PRO) 10/10/2002 PLAN CHECK - BUILDING R/R MEMBERS ON DECKS & STAIRS ON FRONT UNIT 82002 -2992 FINAL BLDG 10/10/2002 SINGLE FAMILY PROJECT R/R MEMBERS ON DECKS & STAIRS ON FRONT UNIT 82002 -1392 CLOSED RBR 09/0512002 RESIDENTIAL BUILDING DUPLEX. 12001 -0484 CLOSED INVS 06/1112001 INVESTIGATION NO ENCROACHMENT PERMIT FOR LANDSCAPING ON CITY PROPERTY. COMPLAINI' -06/11101 12001 -045) CLOSED INVS 05/30/2001 INVESTIGATION DUPLEX CONVERTED TO FOUR UNITS. COMPLAINT - 05/30/01 N2001 -0162 CLOSED CODE 05 /01/2001 P.W. ENCROACHMENT PERMIT R2001 -0412 CLOSED RBR 04/09/2001 RESIDENTIAL BUILDING DUPLEX 12000 -0177 . CLOSED INVS 12112JZ000 INVESTIGATION REMOVE ALL VEGETATION, DIRT, BRICKS AND ANY OTHER ITEMS INSTALLED IN 3'HE PUBLIC RIGHT -OF -WAY CONTIGUOUS TO YOUR PROPERTY. ISSUE NOV - 12/12/2000 970D7169 AUTO PROJ 1210111997 AUTOMATIC PROJECT T/O EXTGJAPPLY 25YR COMP SHINGLE B9703711 FINAL BLDG 12101/1997 SINGLE FAMILY PROJECT PE T/O EXTGJAPPLY ZSYR COMP SHINGLE E9500394 v FINAL ELEC 04/06/1995 ELECT RICAL PERMIT ELEC /OUTLETS, FIX,SUB PANEL P9500278 FINAL PLUM 04/06/1995 PLUMBING PERMIT PLUM /WC,TUB,LAV,BAR SINK,WH,GAS SYSTEM H9500272 FINAL MECH 04/0611995 MECHANICAL PERMIT MECH /WALL HTR,BTH FAN,RES HOOD G9500061 FINAL GRAD 0312411995 GRADING PERMIT BACK TO REINFORCE RET WALL 2052 -94 APPROVED BLDG 10/2611994 PLAN CHECK LOG RES ADD-AS BUILT" 1200 SF /REMODEL EXTG 94005415 AUTO 90 10/26/1994 AUTOMATIC PROJECT RESIDENTIAL ADDITION 1768 SF http://www5.city.newport-beach.ca.us/permitsN300addr—login.asp Page 2 of 3 3/25/2009 PS -RA 00388 Permits Online - Search by Address B9902.862 1485 -93 93004114 FINAL VOID AUTO eLOG BLDG 90 10/26/1994 08/12/1993 08/13/1993 SINGLE FAMILY PROJECT PE PLAN CHECK LOG AUTOMATIC PROJECT 6930.2406 EXPIRED BLDG OB/1311993 SINGLE FAMILY PROJECT PE 93004103 AUTO 90 08/12/1993 AUTOMATIC PROJECT 89329565 VOID BLDG 08/12/1993 SINGLE FAMILY PROJECT PE 53 Records Found. TIE BACK TO BET WALLAS BUILT ADD 612 1200 SQ.FT UNDER 1ST FLR/PLUS LOFT "AS BUILT" 1200 SOFT ADD /+ GARAGE LOFT -AS BUILT" 1200 SOFT ADD /+ GARAGE LOFT 1200 SQ.FI UNDER 1ST FLR /PLUS LOFT 12005Q.FT UNDER IST FLR /PLUS LOFT City of Newport Beach - 3300 Newport Blvd - Newport Beach - California - 92663 - 949.644.3309 http: / /www5.city.newport- beach. ca .us /permitsN30Oaddr _ login.asp Page 3 of 3 3/25/2009 PS -RA 00389 PS -RA 00390 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 20 May 25, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Rosallnh M. Ung, Associate Planner (949) 644-3208 rung @ city.newport- beach.ca.us SUBJECT: Code Amendment No. 2D04 -003 (PA2004 -066) Request to amend Districting Map No. 25 to establish a 10 -foot setback on Orange Avenue for a property located at 3315 Clay Street (PA2004 -066) INITIATED BY: City of Newport Beach ISSUE: Should the City Council approve an amendment to Districting Map No. 25 to establish a 10 -foot setback along Orange Avenue for a property located at 3315 Clay Street? Staff recommends that the City Council hold a public hearing and approve the amendment by introducing Ordinance No. 2004 -_, and pass the ordinance to second reading on June 8, 2004, DISCUSSION: The subject property is a rectangular- shaped lot and is approximately 6,405 (61'x1057 square feet in size. Located on the southwest comer of Orange Avenue and Clay Street, the property is surrounded with commercial developments to the north and west and residential developments to the north, south, and east. The General Plan Land Use designation for the property is Two Family Residential and the lot is zoned R -2 (Two Family Residential). The recently approved street vacation on Orange Avenue between Old Newport Boulevard and Clay Street increases the property's lot width by 10 feet, from 61 feet to 71 feet. PS -RA 00391 Code Amendment No. 2004 -003 (PA2004 -066) May 25, 2004 Page 2 of 3 The proposed amendment is to address a concern with regard to the placement of future development at the subject property, which now could be closer to Orange Avenue. This amendment would change the building setback on Orange Avenue by establishing the location of a main building 6 feet further from Orange Avenue than would otherwise be allowed with a regular 4 -foot setback as set forth in the Code. On May 6, 2004, the Planning Commission voted unanimously to recommend the City Council approve the amendment to Districting Map No. 25 to establish a 10- foot setback along Orange Avenue for the subject property. The attached Planning Commission Staff Report (Attachment D) includes a discussion of the proposed request. Should the City Council wish to accept the Planning Commission's recommendation to approve the proposed amendment, the City Council should approve and introduce the Draft Ordinance (Attachment A). Environmental Review This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Ouality Act under Class 5 (Minor Alterations in Land Use Limitations), pertaining to minor aftemations in larxi use limitations; which do not result in any changes in land use or density of the property. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to property owners Within 300 feet of the property and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the city websfte. Prepared by: salinh M. Ling: oCiate PlanneP Submitted by: L-&�t�x /� Patricia L. Temple Planning Director PS -RA 00392 Exhibits: A. B. C. D. E. Code Amendment No. 2004 -003 (PA2004 -066) May 25, 2004 Page 3 of 3 Draft City Council Ordinance Planning Commission Resolution No. 1360 Excerpt of the draft minutes from the May 6, 2004, Planning Commission meeting Planning Commission Staff Report Districting Map No. 25 K PS -RA 00393 y EXHIBIT A DRAFT CITY COUNCIL ORDINANCE PS -RA 00394 ORDINANCE NO. 2004_ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING CODE AMENDMENT NO. 2004-003 AMENDING DISTRICTING MAP NO. 25 TO ESTABLISH A 10 -FOOT SETBACK ON ORANGE AVENUE FOR A PROPERTY LOCATED AT 3315 CLAY STREET (PA2004-066) WHEREAS, a proposed amendment to the Zoning District maps was initiated by the City of Newport Beach on April 13, 2004, to amend Districting Map No. 25 to establish a 10 -foot setback on Orange Avenue for a property located at 3315 Clay Street. WHEREAS, a public hearing was held by the Planning Commission on May 6, 2004, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, Califomia. A notice of time, place and purpose of the aforesaid meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting. At the conclusion of this meeting, the Planning Commission adopted Resolution No. 1630, recommending that the City Council approve the proposed amendment to the zoning district map. WHEREAS, the City Council held a public hearing on May 25, 2004, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice .of time, place and purpose of the aforesaid meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to and considered by the City Council at this meeting. WHEREAS, the General Plan Land Use designation for the property is Two Family Residential and the lot is zoned R -2 (Two Family Residential). The approved street vacation on Orange Avenue between Old Newport Boulevard and Clay Street increases the property's lot width by 10 feet, from 61 feet to 71 feet. WHEREAS, the proposed amendment is to address a concern with regard to the placement of future development at the subject property, which could be now closer to Orange Avenue. This amendment would change the building setback on Orange Avenue by establishing the location of a main building 6 feet further from Orange Avenue that would otherwise be allowed with a regular 4 -foot setback as set forth in the Code. WHEREAS, the proposed request has been determined to be Categorically Exempt under the Class 5 (Minor Alterations in Land Use Limitations) requirements of the California Environmental Ouality Act (CEQA). Section 1: The City Council of the City of Newport Beach approves Code Amendment No. 2004 -003 as depicted in Attachment "1 ". �. PS -RA 00395 Ordinance No. 2004 - Page 2 of 2 Spetion : The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beads, held on the _ day of 2004, and adopted on the _ day of 2004, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK 2 PS -RA 00396 EXHIBIT B PLANNING COMMISSION RESOLUTION PS -RA 00397 RESOLUTION NO. 1630 DRAFT A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING THE CITY COUNCIL APPROVE CODE AMENDMENT NO. 2004-003, FOR PROPERTY IDENTIFIED AS 3316 CLAY STREET RPA2004-066) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES, AND ORDERS AS FOLLOWS: WHEREAS, the City Council vacated a portion of Orange Avenue making the subject property 10 feet wider. In conjunction with the vacation, the City Council required that the setback on Orange Avenue be Increased to 10 feet as opposed to the 4-foot standard setback. The Council did not want any Tuture residence on the lot to be constructed within the vacated portion of Orange Avenue. WHEREAS, the amendment was initiated by the City of Newport Beach, to amend Districting Map No. 25 to establish a 10 -foot setback along Orange Avenue for the property located at 3315 Clay Street, legally described as Lot 1, Block 6, Tract 27. WHEREAS, a public hearing was held on May 6, 2004, in the City Hall Council Chambers, 33DO Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the aforesaid meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting. WHEREAS, the General Plan Land Use designation for the property is Two Family Residential and the lot is zoned R -2 (Two Family Residential). The proposed amendment does not impact the use of the property. WHEREAS, the proposed 10 -foot setback is appropriate considering the recent vacation of Orange Avenue. The setback in conjunction with the 10 -foot vacation does not negatively impact the buildable area and floor area. WHEREAS, the setback area fronting Orange Avenue is defined as a side yard pursuant to the Code. Nevertheless, for the purpose of implementing development standards, it would be considered as a front yard and is subject to the 3 -foot height restriction. WHEREAS, the project is categorically exempt under the requirements of the California Environmental Quality Act under Class 5 (Minor Alterations in Land Use Limitations). r PS -RA 00398 City of Newport Beach Planning Commission Resolution No. _ Page 2 of 2 NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Newport Beach hereby recommends that the City Council approve Code Amendment No. 2004.003 (PA- 2004088). PASSED, APPROVED AND ADOPTED THIS 6TH DAY OF MAY 2004. I -YA M. Earl McDaniel, Chairman Michael Toerge, Secretary z2a =0 NOES: None :� i 9 PS -RA 00399 10 EXHIBIT C DRAFT MINUTES FROM MAY 69 2004 PLANNING COMMISSION MEETING PS -RA 00400 Planning Commission Minutes 05/06/2004 Page 24 of 26 Clauson answered that there is a general condition that the ap icant has to comply with all state laws. Comm loner Tucker noted that it is not enforceable. He then asked Commission what in particular is the condition that makes it h while the granting the intensity. Commissioner n answered that all of the conditions the police department had ked for and his impression was that a few of these other conditi s did not apply to the site now. Ms. Temple noted that ese are all new conditions that will apply to the site. The than s were from the original proposed conditions. Ms. Temple noted that conditio 0 that was deleted is a standard condition for ABO use permits o or use permits for the Alcohol Beverage Outlet Ordinance. It s incorporated into these conditions for approval, however, we ve noted there is no ABO Use Permit for you and thought it approp ' e to eliminate it. Ms. Clauson noted it is a nexus issue. Y may not necessarily have to have an ASO use permit appii -a may before you to determine that there is a need for this condition the operation of that business even as a restaurant. I suggest th if you want to put it in, you should. Ms. Temple noted that she would like to put in an additic I finding in the resolution that would indicate that conditions of thf ature are necessary because of the increase in occupancy ping granted. The maker of the motion agreed Mr. Bill Hodge stated that these changes are acceptable noting the right to appeal to the City Council. Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker Noes: None Absent: None DRA Abstain: I None R R SUBJECT: Districting Map No. 25 (PA2004 -066) I ITEM NO.5 3315 Clay Street PA2004-066 An amendment to Districting Map No. 25 to establish a 10 -foot I Recommended for j 1/ filc : //H: \Plancomm\2004\0506.htm 05/13/2004 PS -RA 00401 Planning Commission Minutes 05/06/2004 setback for 3315 Clay Street from Orange Avenue. Public comment was opened. Public comment was closed. Motion was made by Commissioner Tucker recommending approval of Code Amendment 2004003 (PA2004 -066) to the City Council. Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker Noes: None Absent: None Abstain: None www Page 25 of 26 approval DRAFT DITIONAL BUSINESS: ADDITIONAL BUSINESS a. Council Follow -up - Ms. Temple noted that the City Cou 'I initiated a General Plan Amendment for property brat San Miguel Drive and MacArthur Blvd., to multi- family re ' ential as part of our Housing Element implementatio plan; approved a Professional Services Agreement with wnomic and Planning Systems, Inc. to conduct for the C' an in -lieu housing fee analysis; they forwarded comments EQAC on the EIR on a project in Irvine Business compla . a discussion of Measure S guidelines; and initiated a e amendment regarding city height and grade regulations. b. Oral report from Planning Commission * presentative to the Economic Development Committee - no rt. c. Report from Planning Commission's represen ' as 4in General Plan Update Committee - there will be a etMonday, May 10th at 3:30 p.m. d. Matters which a Planning Commissioner would like s report on at a subsequent meeting - none. e. Matters which a Planning Commissioner may wish to place on a future agenda for action and staff report - none. \ I. Status Reports on Planning Commission requests - none. g. Project status - There is no need for the special meeting on file:/114:\Plancomm\2004\0506.htm 05/13/2004 PS -RA 00402 13 EXHIBIT D PLANNING COMMISSION STAFF REPORT PS -RA 00403 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT Agenda Item No. 5 May 6, 2004 TO: PLANNING COMMISSION FROM: Planning Department Rosalinh Ling, Associate Planner (949) 644 -3203 rung@city.newpod-beach.ca.us SUBJECT: 3315 Clay Street Code Amendment No. 2004 -003 (PA2004 -066) INITIATED BY: City of Newport Beach ISSUE: Should the Planning Commission recommend the City Council approve an amendment to the Districting Map No. 25 to establish a 10 -foot setbadc along Orange Avenue for a property located at 3315 Clay Street? RECOMMENDATION: Staff recommends that the Planning Commission recommend approval of the amendment to the City Council by adopting the attached draft resolution. DISCUSSION: Background: On March 23. 2004, the City Council approved vacation of a portion of Orange Avenue between Old Newport Boulevard and Clay Street in order to accommodate the medical office development at 494/496 Old Newport Boulevard. The street vacation will abandon approximately 10 feet along the southerly portion of Orange Avenue. The abandonment affects two properties 494/496 Old Newport Boulevard and 3315 Clay Street, and increases the lot width 10 feet. /f PS -RA 00404 CA2004 -003 May 6, 2004 Page 2 VICINITY MAP s N .n Code Amendment No. 2004 -003 (PA2004 -069) Current Development: Single family residential To the north: Commercial and residential uses _ To the east: Residential To the south: Residential To the west: Commercial and uses including the recen0y approved medical office building 2 O D aVE O(t�f� N .n Code Amendment No. 2004 -003 (PA2004 -069) Current Development: Single family residential To the north: Commercial and residential uses _ To the east: Residential To the south: Residential To the west: Commercial and uses including the recen0y approved medical office building 0 PS -RA 00405 CA2004 -003 May 6, 2004 Page 3 The City Council raised a concern with regard to the placement of future development at 3315 Clay Street, which could now be located much closer to Orange Avenue. To address this concern, the City Council voted to approve the vacation with a stipulation requiring the property to maintain a 10 -foot setback from Orange Avenue as opposed to the standard 4 -foot setback. The Council directed staff to implement the setback change. The only way to implement a specific setback rather than using the standard setback identified by the Code is to place the setback on the Districting Map. On April 13, 2004, the City Council initiated the amendment: [7-9M00 i Located on the southwest comer of Orange Avenue and Clay Street, the subject property is a rectangular - shaped lot and is approximately 6,405 (61'x105') square feet in size. Surrounding land uses include commercial developments to the north and west and residential developments to the north, south, and east. Analysis: The General Plan Land Use designation for the property is Two Family Residential and the lot is zoned R -2 (Two Family Residential). The vacation would increase the property's tot width from 61 feet to 71 feet. The proposed amendment will establish the location of a main building 6 feet further from Orange Avenue that would otherwise be allowed with a regular 4-foot setback as set forth in the Code. The setback area fronting Orange Avenue is defined as a side yard pursuant to the Code. However, for the purpose of implementing development standards, it would be considered as a front yard and is subject to the 3 -foot height restriction. Additionally, the setback annotated on the districting map does not affect the allowable building area because the i Planning Commission has previously determined that the buildable area used for calculating permitted floor area should use the Code defined side yard of 4 feet. The following table illustrates this determination: For siting of building only, all other regulations would apply. /I. PS -RA 00406 Existing Pro used Front setback on Clay Street 20' 20' Side yard setback 4' 4' Side yard setback on Orange Avenue 4' "10' Rear yard setback 10' 10' Buildable Area 4,725 sf. 4,725 sf. Floor area limit 2.00 9,450 sf. 9,450 sf. For siting of building only, all other regulations would apply. /I. PS -RA 00406 CA2004 -003 May 6, 2004 Page 4 Environmental Review: This project has been reviewed, and it has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act under Class 5 (Minor Alterations in Land Use Limitations). Public Notice: Notice of this hearing was published in the Daily Pilot, mailed to property owners within 300 feet of the property and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the city website. Conclusion: The proposed amendment is consistent with the Council's desire to provide an increased structure setback for this property. Staff recommends that the Planning Commission adopt the attached resolution (Attachment A). Prepared by: j: r Rc salinh Ling, A c to Planner Attachments: Submitted by: Patricia L, Temple, Planning Director A. Resolution No. _ B. City Council Staff Report dated April 13, 2004 C. Excerpt of Minutes dated April 13, 2004 D. Districting Map No. 25 I-' PS -RA 00407 EXHIBIT E DISTRICTING MAP NO. 25 PS -RA 00408 bl O O N m vy i 0 m a �0 oc "m �z �Gv N 0 � z— °m m C Z mG) Wa i c n N D � m 4 o 1 Ile V A b duo .� 'l .4 tiE 09 b f -120_ w t v -mac^ t AYE PS -RA 00409 r row drsv aar t 9nY 0 atVD (dt: l fwr 6:91 a 67Q'a i tl +s�r�y T �F Ga5 � � ae ee U �p.Q LL r: { racen<rT 4 P� �s� L r a °ae W Q LL � a a. e6. 0� a �W yy �d 1 yam✓ � \ 6 ss nr.re: aeu°issn° rss 64, ll cos ijbtgW% I E mm. v t kk! € €4tkt4 g„ PS -RA 00410 a n.� y� � U �o yy¢ � Rip i 7 b MR. I D/1Y b'RIpJd/lt Q uW � 9 o- �n to Qr �Y� = VF- e6. 0� a �W yy �d 1 yam✓ � \ 6 ss nr.re: aeu°issn° rss 64, ll cos ijbtgW% I E mm. v t kk! € €4tkt4 g„ PS -RA 00410 NOTICE OF PUBLIC HEARING Code Amendment No. 2004 -003 (PA2004 -066) NOTICE IS HEREBY GIVEN that the City Council of Newport Beach will hold a public hearing on the application of C�_of Newport Beach, for Code Amendment No. 2004-003 on property located at 3315 Clay Street. The property is located in the R -2 District. Amend the Distrlctina Map No. 25 to establish a 10 -foot setback on Orange Avenue for property located at 3315 Clay Street This project has been reviewed, and it has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act under Class 5 (Minor Alterations in Land Use Limitations) NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on May 25, 2004, at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall, 3300 Newport Boulevard, Newport Beach, California, at which time and place any and all persons interested may appear and be heard thereon. If you challenge this project in oourt, 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. For information call (949) 644 -3200. d to prav�da� Pam lvja4- Ma�lta� POWs— 6IN'k, (_ uXIA�,Ofl• LaVonne M. Harldess, City Clerk City of Newport Beach PS -RA 00411 RESIDENT RESIDENT 3315 CLAY ST 3244 CLAY ST 1/2 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 3304 CLAY ST B 480 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 486 OLD NEWPORT BLVD 488 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 494 OLD NEWPORT BLVD 495 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 500 OLD NEWPORT BLVD 508 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 522 OLD NEWPORT BLVD 495 OLD NEWPORT BLVD 112 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 497 ORANGE AVE 504 ORANGE AVE NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 509 ORANGE AVE 511 ORANGE AVE NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 515 ORANGE AVE, 517 ORANGE AVE NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT RESIDENT 506 ORANGE AVE A 508 ORANGE AVE A NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT 3304 CLAY ST A NEWPORT BEACH, CA 92663 RESIDENT 485 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 RESIDENT 493 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 RESIDENT 496 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 RESIDENT 510 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 RESIDENT 495 ORANGE AVE NEWPORT BEACH, CA 92663 RESIDENT 507 ORANGE AVE NEWPORT BEACH, CA 92663 RESIDENT 513 ORANGE AVE NEWPORT BEACH, CA 92663 RESIDENT 519 ORANGE AVE NEWPORT BEACH, CA 92663 RESIDENT 506 ORANGE AVE B NEWPORT BEACH, CA 92663 jaE a3aidwal as,3 4,2 66 y 0 siaauc aaaa uioowc PS -RA 00412 RESIDENT RESIDENT RESIDENT 3301 ISTH ST 3305 15TH ST 3311 15TH ST NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 RESIDENT 3321 15TH ST NEWPORT BEACH, CA 92663 RESIDENT 409 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 510 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 517 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 3253 BROAD ST NEWPORT BEACH, CA 92663 RESIDENT 3238 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3245 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3303 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3308 CLAY ST NEWPORT BEACH, CA 92663 pnaTC J�A ;iRiduai acn RESIDENT 333115TH ST NEWPORT BEACH, CA 92663 RESIDENT 411 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 512 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 521 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 3256 BROAD ST NEWPORT BEACH, CA 92663 RESIDENT 3239 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3300 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3305 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3309 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 407 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 413 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 513 BOLSA AVE NEWPORT BEACH, CA 92663 RESIDENT 3251 BROAD ST NEWPORT BEACH, CA 92663 RESIDENT 3262 BROAD ST NEWPORT BEACH, CA 92663 RESIDENT 3244 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3301 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3307 CLAY ST NEWPORT BEACH, CA 92663 RESIDENT 3312 CLAY ST NEWPORT BEACH, CA 92663 RRRJ {{llV8lic PS -RA 00413 RESIDENT 508 ORANGE AVE B NE)XTORT BEACH, CA 92663 AVEfY O address Labels PS -RA 00414 Authorized to PubliOh Advertisements of all kinds including public aod= by Decree of the Superior Court of Orange County, Califorula. Nunither A -6214, Sep[ember 29, 1%1, and A -24831 June 11, 1963. PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss: COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; l am over the age of eighteen years, and not a party to or interested in the betow entitled matter. t 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: May 15, 2004 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on May 15, 2�qa at Costa Mesa, California. Signature E Eeav No. 2s n tnor ryi a nip, An aum kv .A none. es."d for 3r150 l a »d of Thi Oroelraaf. This p, an has been reviewed, and R has been dolermMad that It is cat rone icelly taempt a M 1tWircment? of me California CaliQuai En Act renmcattl Quality o under L i 5 (Minor d se Unillotiats is Laad Uw LlNOTICnsj NOTICE IS NLltlY GIVEN that sold pubfic fearine will M held on 2 2004, at the he hazer of f 7A0 O.M. in the Count may only Zal d is this notice written torte- ca delimen to at, or prior to, Ilc hearit& For Son tail (904) PS -RA 00415 wpo office of the City Clerk CITY HALL e 3300 Newport Blvd. Newport Beach, CA 92663-3884 7j IMPORTANT PUBLIC HEARING NOTICE RESIDENT 495 ORANGE AVE NEWPORT BEACH, Office of the City Clerk CITY HALL 3300 Newport Blvd. Newport Beach, CA 92663-3884 _IMPORTANT PUBLIC, HEARINC NOTICE % �j 5 b3o� % V 2F ; i -MD FNT � OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 PS-RA 00416 C'��IFORN}� Office of the City Clerk CITY HAIL 3300 Newport Blvd. Newport Beach, CA 92663 -3884 _._.._,..... . r -u ; -k. SIDENT `� 510 OLD NEWPORT BIVD -v NEWPORT BEACH, CA 92663 IMPORTANT PUBLIC HEARING NOTICE �q W POF � Office of the City Clerk CITY 1 TALL ux 3300 Newport Blvd, Newport Beach, CA 92663 -3884 1i,1PORTANT PUBLIC "FARING NOTICE. ih,r.�+ni�iirn�wulixf�nl! RESIDENT 494 OLD NEWPORT BLVD NEWPORT BEACH, CA 92663 V�t co tix 1Jru r;i+r n . t Say^ PS -RA 00417 �gwrop�: Office of the City Clerk r' CITY HALL 3300 Newport Blvd. Newport Beach, CA 92663 -3884 IMPORTANT PUBLIC HEARING NOTICE ss6b3 -42'25 A3 y io �. ii !I 3 1 ! . i .! f'1 I l� u!o!1ii!li;HAll%1M.111e:i!1 d'iln:li! ?!!I I I!lt II PS -RA 00418 P Ai jL r�l• 1, A r .. i -Re i Ir Af �l { PS -RA 00420 ORDINANCE NO. 2004-16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS 20.03.030, 20.05.030, 20.05.040, 20.10.010 20.10.020 and Chapter 20.91 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ALL CATEGORIES OF GROUP LIVING USES WHEREAS, the City Council finds that the City's Zoning Code provisions regulating all group living regulations should be amended to ensure conformity with the Federal Fair Housing Act Amendments ('FHAA,' 42 USC § 3001) and various provisions of State law including, without limitation, to provide procedures that allow the City to receive, evaluate and approve applications to accommodate uses protected by State and Federal law; and WHEREAS, the City Council finds that the fundamental precept of the City's Zoning Code provisions relative to residential zones is that individual dwelling units are intended for the occupancy and use of 'families (now defined as "Single Housekeeping Units°) and that persons who are not living together as a Single Housekeeping Unit should be prohibited from residing in the same dwelling unit in all the City's residential zones; and WHEREAS , the City Council further finds that when persons are living together as a single housekeeping unit, they are entitled to live together in a dwelling unit within the City's residential zones, regardless of whether they are related by blood, marriage or otherwise; and WHEREAS, the City has, because of provisions of State and Federal law, made an exception to the requirement that dwelling units in residential districts be occupied only by a Single Housekeeping Unit by defining groups.of six or fewer persons with physical or mental impairments that substantially limit one or more of that person's major Ilfe activities who are living together as a Single Housekeeping Unit; and WHEREAS, the City has obtained the opinion of Dr. Michael Gales, a medical doctor specializing in recovery from chemical dependency, that the recovery of persons suffering from drug or alcohol dependency is properly accomplished in residential groups of between four and six persons, which, under the proposed code amendments, can locate in any residential zone of the City without the need for any discretionary permits; and WHEREAS, the City finds that this ordinance complies with, and implements, the FHAA by establishing a reasonable accommodation process, initiated by filing an application for a "Federal Exemption Permit", that is available to any person who desires to establish a residential facility serving 7 or more persons with physical or mental impairments that substantially limit one or more major life activities; and PS -RA 00421 WHEREAS, the City Council finds that, except for the provisions of this ordinance that permit or conditionally permit persons with physical or mental impairments that substantially limit one or more major life activities to live in residential districts as other than a Single Housekeeping Unit, the City does not desire to permit or conditionally permit other groups of persons not living together as a Single Housekeeping Unit to reside together in a single dwelling unit in any of the City s residential zones; and WHEREAS, during the public hearings preceding adoption of this ordinance, substantial evidence has been presented that confirms there is a high degree of transiency among group home residents, that transiency (due to the failure of an occupant to comply with rules or the successful completion of a program) is an important element of certain group Irving arrangement, that group home residents often come from outside of Newport Beach with the intent to reside here for a very limited period of time and to leave Newport Beach upon completion of the program or treatment that caused them to become residents; and WHEREAS, the City Council finds that persons who occupy dwelling units without the intent to reside long -term in the community have, on average, less incentive than persons who intend to make the community their permanent residence to engage in conduct that contributes to the neighborhood and its residents and to refrain from conduct that annoys or disturbs neighbors; and WHEREAS, the City Council has received extensive testimony during the public hearings preceding adoption of this ordinance and has received evidence on other occasions that dwelling units with short term or transient occupants, when compared to occupants of dwelling units who intend to permanently reside at that location, generate more frequent complaints related to noise, profanity, trash, illegal parking and other conduct that would disturb a person of ordinary sensitivity; and WHEREAS, the City Council has adopted an ordinance (Chapter 5.95 of the Newport Beach Municipal Code) that regulates the conduct of property owners and occupants of dwelling units that are occupied by short term lodgers to address the problems caused by this type of occupancy: and WHEREAS, the City Council finds that, based on testimony received during the public hearings preceding adoption of this ordinance, individual group residential facilities within 300 feet of one another have been used to provide services to the occupants of other similar facilities creating a °campus" effect resulting in the short term intensification of uses in the neighborhood that is now serving the occupants of the other dwelling units and resulting in adverse impacts related to noise, traffic and parking. NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: SECTION 1. The following definitions contained in Section 20.03.030 of the Newport Beach Municipal Code are hereby amended to read as follows: `A PS -RA 00422 "Campus' means three or more buildings in a residential zone within a 300 foot radius of one another that are used together for a common purpose where one or more of the buildings provides a service for the occupants of all the buildings such as when one building serves as a kitchentfood service area for the occupants of the other buildings. "Dwelling, multifamily" means a building containing three or more dwelling units, each of which is for occupancy by one family. "Dwelling, single - family" means a building containing one dwelling unit for occupancy by one family. "Dwelling, two family" means a building containing two dwelling units, each of which is for occupancy by a one family. "Family" means one or more persons living together as a Single Housekeeping Unit. The term "Family" shall include "Residential Care - limited' facilities for six or fewer mentally disabled, mentally disordered or otherwise handicapped persons regardless of whether they are living together as a Single Housekeeping Unit, but shall not include any other living group that is not living together as a Single Housekeeping Unit. "Single Housekeeping Unit" means the functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit including the joint use of common areas and sharing household activities and responsibilities such as meals, chores, and expenses. For purposes of the R -A and R -1 zones, a Single Housekeeping Unit's members shall also be a non - transient group. SECTION 2. The following definitions contained in Section 20.05.030 of the Newport Beach Municipal Code are hereby amended to read in their entirety as follows: "Day -Care, Limited" means non - residential, non - medical care and supervision of twelve (12) or fewer persons on a less than twenty -four hour basis. This classification includes, but is not limited to, nursery schools, preschools, and day -care centers for children (large and small family day -care homes) and adults. 'Group Residential° means shared living quarters, occupied by more than one person, which lack separate kitchen and bathroom facilities for each room or unit, as well all shared living quarters occupied by two or more persons not living together as a Single Housekeeping Unit. This classification includes boarding houses, dormitories, fraternities, sororities, and private residential clubs, but excludes residential hotels (see Single -Room Occupancy (SRO) Residential Hotels, Section 20.05.050(EEx4)). "Residential Care, Limited" means shared living quarters (without separate kitchen and bathroom facilities for each room or unit) for six or fewer persons with physical or mental impairments that substantially limit one or more of such person's major life activities. This classification also includes, but is not limited to, group homes, sober living environments, recovery facilities, and establishments providing non - medical care for persons in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. 3 PS -RA 00423 "Residential Care, General" means shared living quarters (without separate kitchen or bathroom facilities for each room or unit) for seven or more persons with physical or mental impairments that substantially limit one or more of such person's major life activities when such persons are not living together as a Single Housekeeping Unit. This classification includes but is riot limited to group homes, sober living environments, recovery facilities and establishments providing non - medical care for persons in need of personal services, supervision, protection or assistance essential for sustaining the activities of daily living. "Single- Family Residential° means a building or buildings containing one dwelling unit located on a single lot for occupancy by one family. This classification includes mobile homes and factory built housing. "Two - Family Residential" means a building or buildings containing two dwelling units located on a single lot, each unit limited to occupancy by a single family. This classification includes mobile homes and factory built housing. SECTION 3. The definition of "Residential Care, General" contained in Section 20.05.040 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: "Residential Care, General" means shared living quarters (without separate kitchen or bathroom facilities for each room or unit) for seven or more persons with physical or mental impairments that substantially limit one or more of such person's major life activities when such persons are not living together as a Single Housekeeping Unit. This classification includes but is not limited to group homes, sober living environments, recovery facilities and establishments providing non - medical care for persons in need of personal services, supervision, protection or assistance essential for sustaining the activities of daily living. SECTION 4. Subsection H of Section 20.10.010 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: H. Provide public services and facilities to accommodate planned population and densities. The specific residential districts and their purposes are as follows: Residential- Agricultural (R -A) District. Provides areas for single - family residential and light fanning uses. Single - Family Residential (R -1) District. This is the City's most restrictive residential zoning district, established to provide for a stable, social neighborhood for single - family residential land uses by limiting occupancy to one family. Restricted Two Family Residential (R -1.5) District. Provides areas for single-family and two family residential land uses with the total gross floor area of all buildings limited to a maximum floor area ratio of 1.5 times the buildable area. 4 PS -RA 00424 Two Family Residential (R -2) District. Provides areas for single - family and two family residential land uses. Multifamily Residential (MFR) District. Provides areas for single- family, two- family, and multiple family residential land uses. SEreTION 5. Section 20.10.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.10.020 Residential Districts: Land Use Regulations. The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in residential districts, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in residential districts. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approve( of a use permit, as provided in Chapter 20.91. The letters "PD/U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P /UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. The letters FEP designate use classifications for which a Federal Exception Permit must first be obtained pursuant to Chapter 20.91. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. Land Use Regulations = Permitted P = Use permit DIU = Use permit issued by the Planning Director = Limited (see Additional Use Regulations) =P = Federal Exception Permit . = Not Permitted # {I I RESIDENTIAL R 1 ; R-1 i i , rk! 5 R -2 iMFR ditior�al Regulation e9 — Day Care, Limited ��P _ —A��;� P Group Residential Residential Care, Limited # _ —� =LP - 1Residential Care, General j��— FEP �IFEP IFEP f� `sin Ig e- family Residential LP _ -11 P -IP __j (D),_(E) (M) ,Y %ultifam i!yResid L� �_ inn !Two Famil Residential 1_1 —`J 5 PS -RA 00425 PUBLIC AND SEMI -PUBL. 716 1_ - iFL__j_ Cemeteries ,1Clubs and Lodges ,�nl Facilities U � UP Pp Aup GL LO�y-C�ar -neral I JUP Hospitals 19E=1 UP UP EU:p=___j1 Park Rocroatio n c: Recreation tFacilities UP fup��!!, UP UP up 1 jPublic Safety Facilities __j +Religious Assembly JUP -I UP -UP ]UP Schools, Public and Private i UP SUP- -� EU- UP � Utilities, Minor 11COMMERCIAL. USES jdRqiculture, Limited ;1P uisenes rN ies, PD/ Vehicle/Equipment Sales and I Services -Commercial Parking 3 L '3! Visitor Accommodations IL-Bed and Breakfast Inns rup -EU (F) _-SRO Residential Hotels J IJAGRICULTURAL AND EXTRACTIVE USES (A), (B), (C) 1 Animal husbandry IrPD!/771 Crop Production if Mining andPoessing K-4-- L— H) IL _'RK, CCESSoRY USE---- 'Accessary (E Structures and Jp1U Uses P/Up rp—/ U Pup TEMPORARY _USES 711E ___jL 2 PS-RA 00426 �iCircuses and Carnivals ; P P ' ��±; P ; P —i P i —� (K) (Ki�_.___ tCommercial Filming ^Limited j��� j Personal Property Sales P — iL P�.�;[P�i Heliports, Temporary I LS � -: L -5 7 (J ) Real Estate Offices, — 'Temporary L -5 , L -5 -�— `C��1� Residential Districts: Additional land Use Regulations L -1: Twenty (20) acres minimum. L -2: Limited to yacht clubs, use permit required. L -3: Public or no fee private lots for automobiles may be permitted in any residential district adjacent to any commercial or industrial district subject to the securing of a use permit in each case. L-4: See Chapter 20.81, Oil Wells - L-5: Subject to the approval of the Planning Director. (A): See Section 20.60.025, RelDcatable Buildings. (B): See Section 20.60.015, Temporary Structures and Uses. (C): See Section 20.60.050, Outdoor Lighting. (D): With the exception of uses in the R -1 Zone, any dwelling unit otherwise permitted by this Code may be used for short term lodging purposes as defined in Chapter 5.95 of the Municipal Code subject to the securing of: 1. A business license pursuant to Chapter 5.04 of the Municipal Code. 2. A transient occupancy registration certificate pursuant to Section 3.16.060 of the Municipal Code. 3. A short term lodging permit pursuant to Chapter 5.95 of the Municipal Code. (E): See Chapter 20.85, Accessory Dwelling Units. (F): See Section 20.60.110, Bed and Breakfast Inns. (G): Keeping of Animals in the R -A DistrfcL The following regulations shall apply to the keeping of animals in the R -A District: 1. Large Animals. The keeping of large animals (as defined in Section 20.03.030) shall be subject to the following regutations. a. Horses. One horse may be kept for each ten thousand (10,000) square feet of lot area, up to a maximum of three horses; provided, the horse or horses are kept for recreational purposes only. The keeping of four or more horses for recreational uses shall require a use permit issued by the Planning Director- The keeping of horses for commercial purposes shall require a use permit issued by the Planning Commission. b. Other Large Animals. Other large animals, including goats, sheep, pigs and cows, may be kept on lots of fifteen thousand (15,000) square feet or more and the number shall not exceed two adult animals of any one species. c. Total Number Permitted. The total number of large animals shall not exceed six. Offspring are exempt until such time as they are weaned. 2. Domestic and Exotic Animals. The number of domestic and exotic animals (as defined in Section 20.03.030) shall not exceed six. Offspring are exempt up to the age of three months. The keeping of four or more dogs over the age of three months shall require a kennel license pursuant to Section 7.04.090 of the Municipal Code. The keeping of wild animals shall require a permit pursuant to Chapter 7.08 of the Municipal Code. 7 PS -RA 00427 3. Small Animals. The number of small animals, other than domestic and exotic animals (as defined in Section 20.03.030), shall not exceed six. Offspring are exempt up to the age of three months. 4. Control. a. Domestic Animals. No such animals, except for cats, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure or otherwise under the control of the owner of the property. b. Other Animals. No animal, other than domestic animals, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure. (H):See Chapter 20.81, Oil Wells. (1): See Section 20.60.100, Home Occupations in Residential Districts. (J): See Section 20.60.055, Heliports and Hefistops. (K). Special event permit required, see Chapter 5.10 of the Municipal Code. (L): See Section 20.60.120, Personal Property Sales in Residential Districts. (M):See Section 20.60.125, Design Standards for Mobile Homes on Individual Lots. SECTION 6. Section 20.91.015 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.015 Use Permit, Variance, or Federal Exception Permit Requisite to Other Permits. No building permit or certificate of occupancy shall be issued in any case where a use permit, variance, or Federal Exception Permit is required by the terms of this code unless and until such use permit, variance or Federal Exception Permit has been granted by the Planning Director or the Planning Commission or by the affirmative vote of the City Council on appeal or review and then only in accordance with the terms and conditions of the use permit, variance or Federal Exception Permit granted. SECTION 7. Section 20.91.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.020 Application for Use Permit, Variance, or Federal Exception Permit An application for a use permit, variance, or Federal Exception Permit shall be filed in a manner consistent with the requirements contained in Chapter 20.90, Application Filing and Fees. SECTION 8. Section 20.91.025 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.025 Duties of the Planning Director and the Planning Commission. A. Authority. The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits, variances and Federal Exception Permits, unless the authority for an administrative decision on a use permit is specifically assigned to the Planning Director in the individual chapters of this code. ' PS -RA 00428 Exception. The City Council shall have final decision - making authority on the applications for use permits, variances and Federal Exception Permits filed concurrently with amendments to the general plan, zoning code, or a planned community development plan or with a development agreement. B. Rendering of Decision. After the conclusion of the hearing on any application for a use permit, variance or Federal Exception Permit, the Planning Commission shall.render a decision within thirty-five (35) days. Where the authority for an administrative decision on a use permit is assigned to the Planning Director, the Planning Director shall render a decision within fourteen (14) days of the acceptance of a completed application. C. Report to the Planning Commission. Upon rendering a decision on a use permit, the Planning Director shall report to the Planning Commission at the next regular meeting or within fourteen (14) days of the decision, whichever is appropriate. D. Notice of Decision. Upon the rendering of a decision on a use permit by the Planning Director, a notice of the decision shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site. SECTION 9. Section 20.91.030 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.030 Notice and Public Hearing. A. Public Hearings. The Planning Commission shall hold .a public hearing on an application for a use permit, variance, or Federal Exception Permit. Public hearings are not required for applications where the authority for an administrative decision on a use permit is assigned to the Planning Director. B. Timing of Hearings. A public hearing shall be held on all use permit, variance, and Federal Exception Permit applications, except as otherwise provided in this chapter, within sixty (60) days after the acceptance of a completed application. C. Required Notice. Notice of a public hearing or an administrative decision shall be given as follows: 1. Mailed or Delivered Notice, a. Residential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. it shall be the responsibility of the applicant to obtain ' The Pianning Commission shall have the authority to initially review and approve or deny an application for a Federal Exception Permit regardless of whether this code specifically provides for a Federal Exception Permit under those conditions when otherwise required by state or federal law. N PS -RA 00429 and provide to the City the names and addresses of owners as required by this section. Nonresidential Districts. At least ten days prior to the hearing or an administrative decision, notice shalt be mailed to the applicant and all owners of property within three hundred (300) feet, excluding intervening rights- of-way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shalt be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. 2. Posted Notice. Notice shall be posted in not less than two conspicuous places on or close to the property at least ten days prior to the hearing or the administrative decision. 3. Published Notice. Notice shall be published in at least one newspaper of general circulation within the City, at least ten days prior to the hearing. D. Contents of Notice. The notice of public hearing or of the decision of the Planning Director shall contain: A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing or of the purpose of the administrative decision; 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard at the planning hearing and an explanation of their rights of appeal in the case of an administrative decision. E. Continuance. Upon the date set for a public hearing before the Planning Commission, the Planning Commission may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. SECTION 10. Section 20.91.035 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.035 Required Findings. The Planning Commission or the Planning Director, as the case may be, shall approve or conditionally approve an application for a use permit, variance, or Federal Exception 10 PS -RA 00430 Permit'rf, on the basis of the application, plans, materials, and testimony submitted, the Planning Commission or the Planning Director finds: A. For Use Permits. That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located; 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; and will not be detrimental to the properties or improvements In the vicinity or to the general welfare of the city; 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. B. For Variances. 1. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification; 2. The granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant; 3. The granting of the application is consistent with the purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district; 4. The granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. C. For Federal Exception Permlts2A .The Federal Exception Permit sought is handicapped- related. 2A'Federal Exception Permit' Is the name of the permit and application process necessary to obtain a "reasonable accommodation" as that term is used in the Federal Fair Housing Act Amendments (FHAA) and the case law implementing the FHAA. The application for a Federal Exception Permit shall be approved unless there is substantial evidence in the administrative record that establishes that one or more of the findings for approval cannot be made. Federal 11 PS -RA 00431 2. The living group is not residing in the Dwelling or Dwellings as a Single Housekeeping Unit. 3. The Federal Exception Permit. if approved, would not require a fundamental alteration in the nature of a municipal program nor impose an undue financial or administrative burden on the City. . To the extent authorized by law, the factors the Planning Commission or the City Council on review or appeal may consider in deciding whether to grant a Federal Exception Permit include, but are not necessarily limited to: (i) whether the nature and /or extent of vehicular traffic, such as the frequency or duration of trips by commercial vehicles, would be altered to a such an extent that it would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; or (ii) whether development or use standards established in the Newport Beach Municipal Code and that are applicable to other residential uses in the neighborhood would be violated; or (iii) whether a Campus would be established in a residential zone if the Federal Exception Permit were granted; SECTION 11. Section 20.91.040 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.040 Conditions of Approval. The Planning Commission or the Planning Director, as the case may be, may impose such conditions In connection with the granting of a use permit, variance, or Federal Exception Permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. Such conditions may include requirements for off - street parking facilities and prohibitions against assembly uses as determined in each case. The following conditions shall be Imposed upon the issuance of any Federal Exemption Pennit: A. The permittee shall limit overnight occupancy of the Dwelling Units(s) to no more than the number of occupants permitted by the provisions of Title 15 of the Newport Beach Municipal Code. B. The permittee shall use best efforts to ensure that the occupants do not create unreasonable noise or disturbances, engage in disorderly conduct, or violate provisions of this Code or any law pertaining to noise, disorderly conduct, the consumption of alcohol, or the use of illegal drugs. Exemption Permits are subject to the enforcement provision contained in Chapter 20.96. 12 PS -RA 00432 C. The permittee shall, upon notification that occupants and/or guests have created unreasonable noise or disturbances, engaged in disorderly conduct or committed violations of this Code or law pertaining to noise, disorderly conduct, the consumption of alcohol or the use of illegal drugs, promptly use best efforts to prevent a recurrence of such conduct. D. The permittee shall use best efforts to ensure compliance with all the provisions of Title B of the Municipal Code (garbage, refuse and cuttings). E. The permittee shall post, in a conspicuous place within the dwelling unit, a copy of this permit and/or the operational rules specified in this Section. SECTION 12. Section 20.91.045 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.045 Effective Date. Use permits, variances, and Federal Exception Permits shall not become effective for fourteen (14) days after being granted, and in the event an appeal is filed or if the Planning Commission or the City Council shall exercise its right to review any such decision under the provisions of Chapter 20.95, the permit shall not become effective unless and until a decision granting the use permit, variance or Federal Exception Permit is made by the Planning Commission or the City Council, SECTION 13. Section 20.91.050 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C. relating to Federal Exception Permits. 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation. A. Expiration. Any use permit, variance, or Federal Exception Permit granted in accordance with the terms of this code shall expire within twenty -four (24) months from the effective date of approval or at an alternative time specified as a condition of approval unless: 1. A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. In cases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit. 13 PS -RA 00433 B. Time Extension. The Planning Director may grant a time extension for a use permit, variance, or Federal Exception Permit for a period or periods not to exceed three years. An application for a time extension shall be made in writing to the Planning Director no less than thirty (30) days or more than ninety (90) days prior to the expiration date. C. Violation of Terms. Any use permit, variance, or Federal Exception Permit granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such use permit, variance or Federal Exception Permit are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A use permit, variance, or Federal Exception Permit shall (apse if the exercise of rights granted by it is discontinued for one hundred eighty (1180) consecutive days. E. Revocatlon. Procedures for revocation shall be as prescribed by Chapter 20.96, Enforcement. SECTION 14. Section 20.91.055 of the Newport Beach Municipal Code is hereby amended relating to Federal Exception Permits. 20.91.055 Amendments and New Applications. A. Amendments. A request for changes in conditions of approval of a use permit, variance, or Federal Exception Permit or a change to plans that would affect a condition of approval shall be treated as a new application. The Planning Director may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or additions to the plan or the conditions of approval, and are consistent with the intent of the original approval. B. New Applications. If an application for a use permit, variance, or Federal Exception Permit is disapproved, no new application for the same, or substantially the same; use permit, variance or Federal Exception Permit shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. SECTION 1s. Severability . If any provision or clause of this Chapter or the application thereof is held unconstitutional or otherwise invalid by a court of competent jurisdiction, such invalidity shalt not affect other provisions, clauses or applications of this Chapter which can be implemented without the Invalid provision, clause or application, it being hereby expressly hereby declared that this ordinance, and each section, subsection, sentence, clause, and phrase hereof would have been prepared, proposed, approved, adopted, and/or ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses, and/or phrases be declared invalid or unconstitutional. SECTION 16: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. 14 PS -RA 00434 This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 141' day of September, 2004, and adopted on the 281h day of September, 2004, by the following vote, to -wlt: AYES, COUNCILMEMBERS Heffernan, Rosansky, Bromberg, Webb, Daigle, Mayor Ridgeway NOES, COUNCILMEMBERS Nichols ABSENT, COUNCILMEMBERS MAYOR ! ATTEST: 15 PS -RA 00435 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2004 -16 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of September 2004, and that the same was so passed and adopted by the following vote, to wit: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Mayor Ridgeway Noes: Nichols Absent: 'None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 291h day of September 2004. (Seal) /L� /t/�'lp � d a ! •! Vu �/ bLX X/77 City Clerk City of Newport Beach, California. CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2004 -16 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: October 2, 2004. 2004. In witness whereof, I have hereunto subscribed my name this — day of City Clerk City of Newport Beach, California PS -RA 00436 PS -RA 00437 i Aj *AWA (� P -b6� At PS -RA 00438 Map Output n Page 1 of 1 X A http: / /www6.city.newport- beach. ca. us/ servlet/ com. esri. esrimap,Esrimap ?ServiceName =n... 03/24/2009 PS -RA 00439 Map Output 4v lr. 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Jq * 4A Qliz i I -,tiyR� ,v SPr9 49e 3309 4 Y • .. � S � 3308 4 � �- _ _,� ,� ', 3307.. •t .:.- 330A - i�! 1 3305 ... . ° 330 �.s 330e ±!" 3301 — 1'hem C�'/ ,-W7 / PS -RA 00442 http: / /www6.city.newport- beach. ca. us/ servlet/ com. esri.esrimap.Esrimap ?ServiceName =n... 03/24/2009 PS -RA 00443 Reasonable Accommodation Hearing for 3309 Clay jw Mustafa Soylemez, 407 B Ave Z GL a! yam✓ ro`-^ , °N L-%, March 25, 2009 TT i /L4 n- An,� Mustafa Soylemez -d° Gi12 65 SIB G� clad 407 Bolsa Ave /�, As the city is aware, this owner is operating without permits, w1 hether it's FEP or others. There are also many building code, fire and zoning violations. This operator opened a facility during the moratorium, and has been violating not only the letter, but also the spirit of our laws from Day 1. I know all this because I've lived 25 yards away at 407 Bolsa for four years and I've seen what goes on there daily. Today I'm not going to speak about the violations —the City will address those issues ice. Rather, I'll focus on the direct negative impact this situation has had on my home, life and community. �{°1,44A( a.. -tom u.?osr.- do o., o lj"_kZ a V, '+ r *00,0,'- —� '/" Most importantly, there are now Wpeople living in a footprint that was designed and zoned for 2 single family homes. This operator has illegally transformed 2 dwellingsvdesigned for 12 or less, into an illegal complex that houses( ' `0 What kind of impact does this overcrowding have on me? Consider this metaphor: Think of a car on a sidestreet joining traffic on a highway. During non -peak times, there are generally no problems. A car simply gets on the on- ramp and joins traffic seamlessly. But what happens, say at 5pm during rush hour? The amount of cars wanting to get on the highway doubles... quadruples... and pretty soon, cars are completely backed up. Traffic stops, noise increases, pollution increases and delays mount. Why does this happen? Because the roads and THE AREA (in general) just weren't built to handle this. It's inevitable —when you exceed something's design specs, you'll get systematic failure. That's exactly what's happening at Orange and Clay. And it pervades into all parts of residential life. ww^� C5 C"' I,.uat- d5 tw �a.mn. People coming at all hours, foot traffic, noise, smoking, trash, constant deliveries , oaeR� _.,o,f __4 and cars double - parked. It's incessant, and has completely disrupted our J neighborhood. Here are some specific examples. 4i; .g - TY-' k,; A-��V Neise: At least 4 times in '08, I've walked over there to ask members to be quieter. On the one occasion that I asked for the person's name at the door, they refused. This happened in�luly'08. Second, there is often trash on the street out in front. And there is no one that can help over there: There's no super or manager �w� •5 w ��kab;h� 6y Third, we have Bolsa Park for children very close by. It is 40 by 50 feet long. --k� Group home residents like to walk over there, smoke and then discard the butts 0W in the sand, even in front of kids. I know these individuals are from the "complex' V16 °i° because I've seen them walk from the home to the park. Just today, as I was measuring the dimensions of the park, I found these. The pack was on the slide and the butt was in the sand. There are more examples, but others will share them. To close: I ask the fancy, high - priced attorneylies over there, how long did you spend at the properties really witnessing things? Did you spend years, months, weeks... even days? OK, did you spend any time over there at all? I highly doubt it. Same question for the owner. Well, guess what, I do live there, and I've been witnessing these things day and night for years. As such, I believe any defense of the situation by the attorneys and operator must be heavily discounted. Who's testimony is more material? Who's in a better position to account for the community impact? Attorneys who fly in from DC the day of this hearing, or the people who actually, honestly and legally live there day in and day out? As such, I hope you'll strongly consider my request to NOT grant this operator a reasonable accommodation permit. PS -RA 00445 56,b,,,;4 -kd r, fYlaer—i, z.s, zooq My name is David Obbage and I live at 3307 Clay Street which is next door to the three building sober living Compound located at the corner of Clay Street and Orange Avenue in Newport Heights. Over the past two years our community has expressed its concerns about the operation of this facility and the negative impacts that it has had on our neighborhood. The primary reason that we are opposed to this group home facility is based on facts and not speculation. For example, on the morning of November 6, 2007, an officer from the Orange County Sheriff's Department came to my home looking for information about a resident from 3309 Clay Street which is the boarding house /sober living facility that we are reviewing today. The officer informed me that the individual they were looking for was being sought by law enforcement for misdemeanor and felony drug related charges. The officer also informed us that these type of suspects were elusive and hard to find because they move from house to house within the drug and alcohol group home network in Newport Beach. What about the issue of overconcentration? We are not sure how many rec %ering addicts this facility can accommodate but we are estimating that almost �O people have been living in these 3 houses at any one time. This corner used to have two homes with two families living in them. Now we have 3 buildings with up to M 4a people living there. Is this what the City of Newport Beach intended when it established the R -2 Zoning District for this area? Another legitimate concern we have is that this tri -plex of sober living homes is located one block from our local nursery school. Who is conducting background checks on, the individuals that are living in this facility? There have been several other instances of loud profanity, second hand smoke problems and suspicious activity have occurred since the Operator bought this property and started operating his boarding house and sober living facility. I urge you to deny this application and force the Applicant to adhere to the zoning requirements and building codes that are in place for our community. Thank you for giving me this opportunity to speak at today's hearing. PS -RA 00446 Brown, Janet From: Kiff, Dave Sent: Tuesday, March 24, 2009 4:44 PM To: 'Tom Allen'; Wolcott, Cathy; Brown, Janet Subject: FW: Pacific Shores For the record. From: brabara g [mailto:babs008 @gmail.com] Sent: Monday, March 23, 2009 7:53 PM To: Kiff, Dave Subject: Pacific Shores Mr Kiff, My name is Jacob. My wife Barbara and I live on Clay St with our two Pre-Teen children near the 3 Pacific Shores Re -Hab houses. My wife has been in contact with you for almost a year Re: these facilities. Barbara is currently at Hoag Hospital and is recovering from Surgery. She made me promise to contact you prior to the scheduled hearing on March 25th to voice our opinion as to these properties. Some of the issues we have discussed are as follows The City has attributed 60 beds in the 3 properties (zoned R -2). That is almost equal occupancy of the entire Block of Clay St which runs approx 150yrds (a long block) (OVERCONCENTRATION ?) Much more I think, than any of the RE -HAB houses near the beach. The Property owner /operator is a convicted FELON just recently released from PRISON. The tenants are not allowed to park on the property and must use street parking. (60 cars ?) The 3 garages are full of building material and could only park 6 cars at best. There are no less than 25 trash cans on trash days . Much more than any home in the area. Tenants are sketchy at best and don't seem to sleep EVER. It appears that with 60 beds and not offering any treatment it is nothing more than a BOARDING HOUSE with a very HIGH turn over rate. People don't seem to be there very long and new faces are always around. The 3 properties use the property @ 3309 Clay as a Rec area as it has a pool. The 3 properties are actually connected and access to the pool from the other 2 properties is thru a rear chain link gate. Most important seems to be that these RE -HAB houses were opened in direct VIOLATION of the CITY MORATORIUM. From what we were told the owner was notified by the city NOT TO OPEN and disregarded that order and opened anyway. We had a family friend who's son was a resident there for a brief period but when he couldn't pay and fell behind 2 WEEKS he was asked to leave. I was never able to verify that information but, that's what we were told. It sure seems that these homes generate a very large monthly cash flow which explains the defiance to the city laws. PS -RA 00447 I bring my wife home from the Hospital Tomorrow. I am making a copy of this E -mail for her. Iam sure i forgot some of the points she requested me to convey so she may re- connect with you in an additional E -mail later. I would like to mention that we were originally discussing attending the hearing on the 25th but decided against that idea for fear or retaliation. Hopefully all of the points discussed in this E -mail have already been addressed in City Staff Reports. Thank you Mr. Kiff for all your hard work in this highly POLITICAL ISSUE. We do understand the position that the City is in with the PROTECTED DISABLED class. We also know that we live in a bedroom community FAMILY NEIGHBORHOOD and are entitled to enjoy the comfort peace and tranquility of our family home and neighborhood. PS -RA 00448 tia! . ........ ..... Z'ffig r,A A: 3/.2s/.z6761 �y spak4wu wk a", A l V_ . At Joao � 0 - ,� . � b p4pt, llb-Wq(-4itd-effinrwA�% A 0,� (,u�v1� -c sw i cif 1 ci AIA r v Ak drluy. n PS -RA 00450 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY TO- Hearing Officer Thomas Allen �l2GM: Catherine Wolcott, Deputy City Attorney, City of Newport Beach v Kit Bobko, Special Counsel, Richards, Watson & Gershon A09 -00147 RE: Reasonable Accommodation Issues — N cessi DATE : March 25, 2009 This letter brief discusses the City of Newport Beach's interpretation of the federal Fair Housing Amendments Act's (FHAA) requirement that it make reasonable accommodation from its usual rules, policies, practices or services when such accommodation is necessary to afford a disabled individual an equal opportunity to use and enjoy a dwelling.. Although the FHAA also requires that the request be reasonable, this letter will focus on the "necessity" prong of the analysis, and an analysis of the FHAA's requirement that disabled individuals have "an equal opportunity to us and enjoy a dwelling." The FHAA defines discrimination in part as "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. 3604(f)(3)(B) (bold added). The FHAA's phrase "necessary to afford ...an equal opportunity to use and enjoy a dwelling," has been reviewed by many courts, and Courts have been inconsistent in their interpretation of the term, "equal opportunity to use and enjoy a dwelling" Some courts have held that this requires cities and counties to accommodate disabled individuals who wish to reside in a group setting, to a degree that allows them to reside in a specific residence. Other courts have considered aRemate similar housing options available to a disabled individual or group, and discussed the housing type, or residential zoning district desired, or a residence in a particular community, and found that the availability of these alternate similar fors of housing kept the disabled person from satisfying the necessity requirement. PS -RA 00451 Hearing Officer Thomas Allen March 25, 2009 Page: 2 Ninth Circuit Decisions In the Ninth Circuit, the Court of Appeals has leaned towards the lower threshold for finding necessity, expanding the FHAA's "equal opportunity to use and enjoy a dwelling° to an equal opportunity "to use and enjoy a dwelling of their choice." City of Edmonds v. Washington State Building Council, 18 F.3d 802 (9P Cir. 1994) stated that Congress intended the FHAA to protect the right of handicapped persons to live in the residence of their choice in the community, and that the question was not whether any housing was available, but whether housing that the individual desired was denied on Impermissible grounds. 18 F.3d at 806. The court Indicated that the sober living home had made a preliminary showing of necessity because it required six or more residents to ensure financial self - sufficient, and to provide a supportive atmosphere for successful recovery. Id. at 803. The standard the court applied for a showing of necessity (financial viability and therapeutic benefit for the residents) is similar to that applied in other circuits, discussed below. When a disabled individual is already living in a dwelling and requires accommodation to remain In that specific dwelling, it is likely the courts will find the requested accommodation necessary, although the requesting party must still satisfy the "reasonableness" prong. In McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004), a man with AIDS was cited by the City for maintaining a nuisance for failure to maintain his yard free of garbage and debris. After receiving an order to clean the property, the man asked for additional time due to his health (he had AIDS - related meningitis). The City ignored the request, hired a contractor to dean the property, sent the man a bill for the cost, and placed alien on his property. The Ninth Circuit held that the man had stated a reasonable accommodations claim under the FHAA and the ADA. The City argued that it had not denied the man the use and enjoyment of his home because It had neither excluded him from his home nor created less of an opportunity for him to live in the neighborhood of his choice. The court disagreed, and found that granting the additional compliance time requested was necessary to allow the disabled resident to comply with the law and avoid the lien. The Court also held that the Imposition of a financial burden can sufficiently interfere with the use and enjoyment of a handicapped person's home to a degree that might require a reasonable accommodation. Id. at 1262 -1263. Similarly, in Glebeler v. M & B Associates, 343 F.3d 1143 (e Cir. 2003), the Court of Appeals found that a property management firm had failed to reasonably accommodate a disabled man who wished to reside in a specific apartment building, bemuse he could not meet their financial qualification requirements. As his financially qualified mother was willing to act as his cosignor, the court found that it would have been a reasonable accommodation to modify the firm's no- cosignor policy. They also found the accommodation necessary, since without it the plaintiff would be denied a housing opportunity for which he was otherwise qualified. The court found that refusal to make PS -RA 00452 Hearing Officer Thomas Allen March 25, 2009 Page: 3 the accommodation was the direct cause of the erstwhile tenant being unable to reside In the building. 343 F.3d at 1155 -1156. Decisions in Other Circuits In a situation similar to that of many residential care facility operators in Newport Beach, a Fourth Circuit court found that when alternative accommodations for the disabled already exist in a jurisdiction, providing a financial benefit to a facility operator by allowing them to operate a facility of larger size was not necessary to provide disabled residents with housing, and therefore was not a situation in which the FHAA required that a county grant the requested accommodation. In Bryant Woods Inn, Inc, v. Howard County, 124 F.3d 597 (4th Cir. 1997) the court analyzed the necessity prong of the reasonable accommodation analysis in detail. In this case, the. operator of a group home for elderly and infirm requested a variance,from the County to expand from 8 to 15 disabled and elderly residents. The County denied the variance and the operator sued, claiming intentional discrimination and failure to make a reasonable accommodation. The court held that the plaintiff did not carry its burden to show that the requested accommodation was necessary to provide the disabled with an equal opportunity to use and enjoy a dwelling. In support of its finding that the plaintiff facility operator failed to make the required 'necessity" showing, the court noted that 30 other similar facilities housing eight or fewer residents were already operating in the County. The plaintiff failed to present any evidence that the requested expansion was necessary to make the home economically viable or that the expansion would be therapeutically meaningful for facility residents. Id. at 605. Furthermore, the court noted that the larger facility, `would provide not an equal opportunity to the Bryant Woods Inn's residents, but a financial advantage to the Bryant Woods Inn. Yet, the FHAA requires only an 'equal opportunity,' not a superior advantage." Id. The Bryant Woods Inn court appeared to regard the "equal opportunity to reside in a dwelling° requirement of the FHAA to mean an opportunity to live in a certain type of facility, in a certain area or jurisdiction. "A handicapped person desiring to live in a group home in Howard County can do so now at Bryant Woods Inn under existing zoning regulations, and, if no vacancy exists, can do so at the numerous other group homes at which vacancies exist. The unrefuted evidence is that the vacancy rate was between 18 to 23% within Howard County. We hold that in these circumstances, Bryant Woods Inn's demand that it be allowed to expand its facility from 8 to 15 residents is not `necessary,' as used In the FHAA, to accommodate handicapped persons." Id. Bryant Woods Inn sought to house 15 residents; alternative available accommodations offering similar services to groups of eight residents were considered an acceptable substitute by the court. PS -RA 00453 Hearing Officer Thomas Allen March 25, 2009 Page: 4 In a statement that could be applied to the City of Newport Beach as well as Howard County, Tennessee, the court said, "If Bryant Woods Inn's position were taken to its limit, it would be entitled to construct a 10 -story building housing 75 residents, on the rationale that the residents had handicaps." Id. This reasoning has been incorporated into City staff's approach in analyzing residential care facilities' reasonable accommodation requests. In the view of this court and many others, "necessary to afford such person equal opportunity to use and enjoy a dwelling° means "necessary to afford a disabled person an equal opportunity to live in the We of facility they choose within the city." Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996) reviewed the necessity argument in a situation in which a city was lacking a sufficient supply of accommodations for the disabled. In Smith & Lee Assoc., a residential home for the elderly and disabled sought to rezone its property to enable its expansion from 6 to 9 residents. The Sixth Circuit Court of Appeals held that the City failed to provide a reasonable accommodation when it denied the request. The expanded facility was necessary because (1) disabled seniors cannot live in residential areas without assistance; and (2) there was an insufficient supply of assisted living facilities in the area. The Smith & Lee Associates court also analyzed Congress' legislative intent, and did not come up with the same conclusion as the City of Edmonds' oourt. The Smith & Lee Associates court said, "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 neighborhoods, for that right serves to end the exclusion of handicapped individuals from the American mainstream." 102 F.3d at 794 -795. It also quoted with approval from Bryant Woods inn, Inc. v. Howard County, 911 F.Supp. at 946, repeating that the FHAA prohibited local government from applying land use regulations in a manner that would give people with disabilities a reduced opportunity to, or exclude people with disabilities entirely from, zoning neighborhoods, particularly residential neighborhoods. 102 F.3d at 795. In another case that is factually similar to the Pacific Shores reasonable accommodation request, Lapdd"Laural, LLC v. Zoning BaL of Adjustment of the Township of Scotch Plains, 284 F.3d 442 (3`d Cir. 2002), the Third Circuit Court of Appeals held that it was the plaintiff's burden to show necessity. "The `necessary element requires the demonstration of a direct linkage between the proposed accommodation and the 'equal opportunity' to be provided to the handicapped person." 284 F.3d at 460 (italics added). In order to show necessity, the plaintiff must show that, but for the accommodation, they would be denied an equal opportunity to enjoy the housing of their choice. Disabled elderly residents, in the view of the Lapkf-Laurel court, had the right to an equal opportunity to live in a single- family residential area. In that case, the court found that the plaintiff had demonstrated the necessity of the accommodation as to the elderly disabled individuals the plaintiff developer proposed to PS -RA 00454 -- Hearing Officer Thomas Allen March 25, 2009 Page: 5 house. Therefore, it held that a use variance was necessary for the elderly disabled to live in a residential area of the town. However, the LaW- Laurel court did not make a similar finding of necessity as to the size of the 95-bed elder care facility the plaintiff proposed. The town's land use board objected that the facility would be too large for the site on which it was proposed, and too large for the surrounding neighborhood. The court observed that a strict interpretation of the "necessity° requirements of Section 3&M(f)(3j(6) would require the plaintiff to show that a bullding that size is required to provide the disabled with an equal opportunity to live in a residential neighborhood. The court said that to show necessity for the size of the facility, the plaintiff would have to show either that 1) the size of the facility was necessary for the facitity's financial viability (which the court appeared to equate with giving the disabled an equal opportunity to live in a residential neighborhood), or 2) that the size of the facility would serve a therapeutic purpose (and would therefore ameliorate an effect of the handicap.) The court found that the plaintiff had not demonstrated that the proposed size of the facility was necessary far either financial viability or therapeutic effect. Id. at 460 -461. In Erdman v. City of Fort Atkinson, 84 F.3d 960 (7th Cir. 1998), the operator of a proposed group home for persons who were elderly and disabled requested a CUP to operate in a residential zone. The City denied the request on grounds that the application failed to show development plans for the entire 9 -acre parcel and showed a cul- de-sac that was inconsistent with the City's master zoning plan. The Seventh Circuit held that the City did not fail to make a reasonable accommodation, because waiving the requirement of complete plans that are consistent with the master zoning plan was not necessary to provide the handicapped with an equal opportunity. In Schwarz v. City of Treasure Island, 544 F.3d 1201 (11t" Cir. 2008) examined the necessity requirement closely with regard to specific residences for alcohol and drug recovery facilities. The Schwarz court followed the "dwelling of his or her choke" analysis, and concluded that the availability of another dwelling somewhere within the city's boundaries was not germane to the analysis. 544 F.3d at 125 -126. However, the court agreed with the Ctty's argument that necessity had not been proved because the plaintiff had not shown the accommodation requested actually alleviated the effects of the handicap. id. at 126. The court remanded The case was remanded to the District Court for further review of the necessity issue. In U.S. v. Village or Palatine, 37 F.3d 1230 (7th Cir. 1994), the Seventh Circuit held that a Village did not fall to provide a reasonable accommodation when it subjected a group home for persons recovering from substance abuse to a special use permit requirement. In a variation of the necessity argument, the facility operator argued that the SUP process would subject them to public hearings, vocal opposition, and unfair scrutiny based on their disability. Id. at 1233. The Seventh Circuit refuted this argument: "Public input is an Important aspect of municipal decision making; we cannot PS -RA 00455 Hearing Officer Thomas Allen March 25, 2009 Page: 6 impose a blanket requirement that cities waive their public notice and hearing requirement since all cases involving the handicapped .m Id. at 1234. District Court Decisions The decision in U.S. v. City of Chicago Heights, 161 F.Supp.2d 819 (N.D.III. 2001) reached a different decision on whether the right to live in a specific residence was supported by the FHAA. In that case, the U.S. government ( "Govemmenf) alleged under the FHAA that the City failed to provide mentally disabled persons a reasonable accommodation from the City's requirement that group homes be separated from each other by 1000 feet. The District Court held that the proposed accommodations had to be both necessary and reasonable. Id. at 833 -834. The concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiffs. quality of life by ameliorating the effects of the disability. Plaintiffs must show that but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice. Id. at 834 (internal quotes and citations omitted). The Chicago Heights court held that the FHAA requires only a showing that the requested accommodation is one way of ameliorating the plaintiffs disability. The City argued that the Government had failed to show that a specific location for a group home was necessary. The court responded that while the Seventh Circuit had never expressly held that a handicapped person had an absolute right to the residence he or she chose, the FHAA makes it unlawful to 'make unavailable or deny a dwelling to any buyer or renter because of the handicap of ... a person Intending to reside in that dwelling after it is made avallalble.' 42 U.S.C. § 3604(fXlXB). The statute thus speaks to the denial of the opportunity to live in particular dwellings.' 161 F.Supp.2d at 835-836. In Community Services, Inc. v. Heidelberg Township, 439 F.Supp.2d 308 (M.D.Pa. 2006), a healthcare company sought a variance to classify the residents of a group home for the mentally disabled as a "family" for purposes of the town's zoning code. The variance would have allowed the group home to operate as a single - family residence as a matter of right in an agricultural zone. The town denied the variance request and the operator sued on behalf of the patients under the FHAA and sought a preliminary injunction against the town. The District Court held that the operator had a substantial likelihood of success on its reasonable accommodations claim. Id. at 398. The record showed that the plaintiffs required around - the -clock care to help them with their everyday living and.that assisted living facilities were not allowed anywhere in the Town as a matter of right. Id. Thus, the operator was likely to meet its initial burden of showing that the variance was PS -RA 00456 Hearing Officer Thomas Allen March 25, 2009 Page: 7 necessary to allow the residents an equal opportunity to live in the Town. At the same time, there was nothing In the record to suggest that the requested variance was unreasonable. id. (italics added) In Howard v. City of Beavercreek, 108 F.Supp.2d 866 (S.D.Ohio 2000), a man who suffered from post traumatic stress disorder requested a variance to erect a fence which exceeded the City's height limit so as to block his neighbors view onto his property. (The man believed that the neighbors were spying on him, which contributed to his stress and heart condition.) The City denied the variance and the man sued claiming the City failed to reasonably accommodate his disability. The District Court held that the height variance for the fence was not a necessary accommodation because the plaintiff had lived in his home for 15 years without the fence and only stated that he might be forced to move from his home if he cannot build the fence. id. at 873. In Means v. City of Dayton, 111 F.Supp. 2d 969 (S.D. Ohio 2000), a residential care facility for the mentally disabled was granted a CUP to operate in a residential area subject to provision of additional off - street parking that was not required of other residential uses. The operator claimed that these conditions caused her to incur additional expenses and should have been eliminated as a reasonable accommodation. The District Court disagreed, holding that the Fair Housing Act does not override local zoning controls merely because they might make housing more expensive for the disabled absent a showing that the expense actually prevent the disabled from living in a residence. Id. at 978 -979. PS -RA 00457