HomeMy WebLinkAboutStaff_Report_June_11_2010CITY OF NEWPORT BEACH
HEARING OFFICER STAFF REPORT
June 11, 2010
Agenda Item #1
TO:
SUBJECT:
APPLICANT:
PLANNER:
Judy Sherman, Hearing Officer
Balboa Recovery, Inc. (PA2009-012)
124 30th Street
• Reasonable Accommodation No. 2009-002
Kevin Cullen
Janet Johnson Brown, Associate Planner
(949) 644-3236, jbrown@city.newport-beach.ca.us
PROJECT SUMMARY
An amendment to a reasonable accommodation application for relief from the
requirements of Newport Beach Municipal Code (NBMC) Section 20.10.020,
(Residential Districts: Land use Regulations) due to changed factual circumstances.
The applicant requests an amendment to Reasonable Accommodation No. 2009-002 to
allow the continued operation of an existing sober living home with a reduced population
from 10 female adult resident clients and two resident managers to no more than six
female adult resident clients and two resident managers in the two units of a duplex
building. The facility is located in the R-2 District, where such uses are not permitted.
The applicant requests an amendment to its original application for an accommodation
from the requirements that sober living facilities are permitted only in MFR Districts with
approval of a use permit.
RECOMMENDATION
Staff recommends the Hearing Officer conduct a public hearing to consider the
applicant's amended request for reasonable accommodation, and 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. Approve the request for Reasonable Accommodation No. 2009-002 based on the
findings discussed in this report, and
2. Adopt a Resolution of Approval with Conditions of Approval for Reasonable
Accommodation No. 2009-002 (Attachment 1); or
3. Issue a written determination and findings within 10 days of this public hearing,
and direct staff to prepare a resolution based on the Hearing Officer's written
determination and findings, with appropriate conditions, for adoption by the
Hearing Officer.
BACKGROUND
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 2
On May 20, 2009, Hearing Officer Thomas Allen conducted a public hearing to consider
an application for reasonable accommodation requesting relief from the provisions of
Newport Beach Municipal Code Section 20.10.020 (Residential Districts: Land Use
Regulations). The applicant requested an accommodation to allow the continued
operation of an existing sober living facility for up to 10 female adult resident clients and
two resident managers in two units of a duplex building. A copy of the May 20, 2009
staff report is attached as Attachment 2.
Section 20.10.020 of the NBMC establishes permitted land uses or conditionally
permitted land uses in residential districts. The applicant's existing facility would be
classified as a "Residential Care Facilities, General" use (seven or more resident
clients). Per Section 20.10.020, "Residential Care Facilities, General" uses that are
licensed or unlicensed, and "Residential Care Facilities, Small Unlicensed" uses (six or
fewer resident clients) are permitted only within a Multi-Family Residential (MFR)
District subject to the approval of a use permit issued by a Hearing Officer. The existing
facility is located in the R-2 District, where such uses are not permitted. The applicant
requested an accommodation from the requirements that unlicensed "Residential Care
Facilities, General" are permitted only in MFR Districts with approval of a use permit.
DUring the May 20, 2009 public hearing, staff reported that they had discussed their
initial recommendation with the applicant, which was to recommend that the Hearing
Officer grant approval for no more than six resident clients occupying one unit of the
duplex building or no more than six resident clients in the whole building. Staff stated
that with a resident population of no more than six adult females in the duplex building,
it would have been able to provide facts in support of all five findings required by NBMC
Chapter 20.98 to grant the requested accommodation. However, the applicant
indicated that it would not be financially feasible to maintain the sober living facility with
no more than six resident clients in this location. The applicant indicated that he would
like the opportunity to maintain operations at the existing sober living facility with 10
resident clients for a one-year period of time in order to find a facility where he could
house six resident clients in an economic environment that allowed the facility's
continued operation. A copy of the May 20, 2009 hearing transcript is attached as
Attachment 3.
On July 2, 2009, the Hearing Officer adopted a resolution denying without prejudice the
applicant's request for reasonable accommodation. The Hearing Officer determined
that the findings required by Section 20.98.025(B) of the NBMC could not be made to
grant a reasonable accommodation to allow 10 resident clients and two resident
managers in a duplex building. The Hearing Officer allowed the applicant to continue
the operations for a one-year period, subject to certain conditions of operation, after
which time he ordered that the nonconforming use of the facility shall abate. A copy of
Resolution No. HO-2009-015 is attached as Attachment 4.
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 3
AMENDED REQUEST FOR REASONABLE ACCOMMODATION
In late 2009 the applicant contacted City staff stating there had been a change in
circumstances, and that with an upcoming reduction in rent for the property, he could
afford to continue operations at this facility with no more than six resident clients. In
February 2010, the applicant submitted a letter (Attachment 5) to the City of Newport
Beach requesting to amend the original reasonable accommodation application due to
changed factual circumstances.
Balboa Recovery has requested to remain in operation at the same location with a
reduced population of six female resident clients and two resident managers in the two
units of the duplex building. Staff communicated with the applicant on May 28, 2010, to
verify there had been no other changes in the information submitted in the original
reasonable accommodation application. This was confirmed by the applicant the same
date. (Attachment 6). Staff requests that the Hearing Officer refer to the May 20, 2009
staff report attached hereto for a complete description of the facility and operations.
During a conversation with the applicant on June 5, 2010, staff was further informed that
the sober living facility currently provides housing for eight resident clients and two
resident managers in the two units of the duplex, and has since March 2010. The
applicant stated that by the end of September 2010 at the latest, the two current
resident clients in excess of six would complete their intended stay at the facility, and he
could then permanently reduce the population to three resident clients in each unit.
DISCUSSION
As discussed in the May 2009 staff report, 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(f)(3)(B».
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
individuals." McGary v. City of Portland, 386 F.3d 1259, 1261 (9th 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
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 4
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. Vii/age of
Marshall, 787 F.Supp. 872, 878 ryv.D. Wisc. 1991). Whether a requested accommodation
is reasonable and necessary must be determined on a case-by-case basis.
Analysis
Balboa Recovery requests a reasonable accommodation to allow the continued operation
of the existing sober living facility in this location with a reduced number of resident clients
of no more than six adult female resident clients and two resident house managers in the
two units of the duplex building. Specifically, the applicant is requesting a reasonable
accommodation exemption from the Newport Beach Municipal Code (NBMC) Section
20.10.020 Residential Districts: Land Use Regulation. This section of the NBMC
establishes permitted land uses or conditionally permitted land uses in residential districts,
and includes special requirements, if any, for specific uses.
Ordinance No. 2008-05, adopted by the City in February 2008, 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 reasonable
accommodation. The ordinance also establishes the required findings that must be
made to grant approval, and factors the Hearing Officer may consider when making
those findings.
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."
As stated earlier in this report, in May 2009 the Hearing Officer determined not all of the
five findings required pursuant to Section 20.98.025(B) to grant a reasonable
accommodation could be made. Specifically, the Hearing Officer determined Finding
No. 2 and Finding No. 4 could not be made to allow the continued operation of the
existing sober living facility with 10 resident clients and two resident managers.
However, staff believes with the reduced number of six female resident clients and two
resident managers in two units of the duplex building, all five findings can be made.
Following are analyses of Finding No. 2 and Finding No. 4 under the new conditions
proposed by the applicant, and the facts in support of these findings.
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 5
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.
It is the applicant's burden to demonstrate that the requested accommodation is
necessary. "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." Lapid-Laurel, LLC v. Zoning Bd. of Adjustment of the Township
of Scotch Plains, 284 F.3d 442, 460 (3rd Cir. 2002)
In the Lapid-Laurel case, the court found that the necessity element was established as
to disabled elderly residents' need to live in a single-family residential area. However,
the need for the facility to house the number of residents requested by the facility
operator was not demonstrated. The court said that for the operator to show necessity
for the size of the facility, the operator would have to show either that: (1) the size of the
facility was necessary for the facility's financial viability (which the court appeared to
equate with giving the disabled an equal opportunity to use and enjoy a dwelling); or (2)
the size of the facility was necessary to provide a therapeutic benefit (and thus
ameliorate an effect of the handicap.) The court found the facility operator had not
demonstrated that the proposed size of the facility was necessary for either financial
viability or therapeutic benefit. 284 F. 3d at 460-461.
The Ninth Circuit followed the same requirement that a sober living facility operator
show a certain number of residents was necessary for financial viability or therapeutic
benefit to the residents in order to demonstrate the necessity of a reasonable
accommodation in City of Edmonds v. Washington State Building Council, 18 F.3d 802
(9th Cir. 1994) In that case, the court noted that a sober living home had made a
preliminary showing of necessity because it had shown that it required six or more
residents to ensure financial self-sufficiency, and to provide a supportive atmosphere for
successful recovery. 183 F.3d at 803.
Similarly, in Advocacy and Resource Center v. Town of Chazy, 62 F.Supp.2d 686
(N.D.N.Y. 1999), the court declined to find that the plaintiff facility operator had
established necessity because, in part, the plaintiff offered "only conclusory allegations .
. . without any substantiation in the form of financial records demonstrating that the
residence would not be economically viable without a larger (population) ... " 62
F.Supp.2d at 689-690.
Consistent with court decisions, the City requires that applicants for reasonable
accommodation demonstrate the necessity of reasonable accommodation requests by
showing therapeutic benefit to residents at the requested population levels and/or
location (also referred to as "affirmatively enhancing the quality of life" of a disabled
individual or individuals), or by showing that the requested number of residents is
necessary for the financial viability of the facility.
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 6
Reasonable Accommodation No. 2009-002 was denied in July 2009. However, the
Hearing Officer allowed the continued operations of the sober living facility with the
requested 10 resident clients for a one-year period, subject to certain conditions of
operation, after which time he directed the use of the facility to cease. Thus, the
existing facility is currently subject to abatement in July 2010.
Facts in support of finding:
The applicant has submitted an amended request for reasonable accommodation to
allow six resident clients and two resident managers in the two units of the duplex
building. The applicant has stated that continued operation in this location provides a
therapeutic benefit to its clients, and that it is necessary to provide a resident manager
in each unit in order to monitor the residents' activities and ensure their safety.
In the interim, between now and the end of September, the applicant has requested that
the current population level of eight resident clients be allowed to remain in the two units
of the duplex building. This would allow the current resident clients to complete their
intended stay, and provide these residents an equal opportunity to use and enjoy their
current dwelling.
With a reduced facility population of six female resident clients in both units of the
duplex building, the amended accommodation will continue to afford disabled
individuals an equal opportunity to use and enjoy a dwelling in a small sober living
environment. There are limited opportunities within the City for females in recovery to
live in a female-only building with six or fewer other recovering individuals, surrounded
by other single housekeeping units. At this time, staff is aware of only one similar
facility which provides housing to no more than three disabled female clients per unit in
a duplex building. That facility is also operated by Balboa Recovery, pursuant to a
reasonable accommodation granted on May 20, 2009. The requested reasonable
accommodation is necessary to provide an opportunity for disabled female residents to
live in a small self-paced recovery environment in a residential setting which allows the
residents to reintegrate into the world and workforce.
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.
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 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. This facility appears to be the only residential care
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 7
facility of any description on this block, or any of the adjacent blocks with the
exception of an all-male sober living facility located at 127 29th Street which is
currently subject to abatement. The operators of the 29th Street facility are in the
process of entering an abatement agreement with the City which requires closure
of the facility by August 31, 2010, at the latest.
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
accomnJOdation.
The applicant requests an exemption from the requirements of NBMC Section
20.10.020 to allow the continued operation of an existing unlicensed residential
care facility located in an R-2 District where the NBMC permits such uses only in
an MFR District with approval of use permit. The applicant seeks to continue the
operations of the existing sober living facility with no more than six disabled
individuals in the two units of a duplex building. In May 2009, staff provided facts
that supported a finding that an accommodation that allowed the facility to
continue at its current location with no more than six female resident clients
would afford females with a disability an equal opportunity to enjoy the housing
type of their choice in a small, gender-specific recovery 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 contends that relocation of the current facility would be a significant
financial burden, and reports that, with the requested accommodation, changed
circumstances now allow the facility to be financially viable under conditions
similar to those at other facilities of a similar nature and operation.
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 Municipal Code authorizes the City to consider other facilities that are of a
"similar nature and operation." Based on an inventory conducted in April 2010,
females in recovery from alcoholism or chemical dependency wishing to live in
Newport Beach in a sober living environment have the following housing
opportunities that they can choose from:
• Balboa Recovery operates a single comparable facility, with housing for six
female resident clients in two units of a duplex at 204 21 st Street under a
reasonable accommodation granted in May 2009; and
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 8
• Pacific Shores Properties operates one female-only sober living home, in one
unit of its 492 and 492 % Orange Street facility. This unit was granted a
reasonable accommodation allowing it to continue to house up to 12 resident
clients in each unit; and
• An unlimited number of beds via the use of any home in Newport Beach,
provided that the occupants reside there as a single housekeeping unit in
compliance with the City's definition of single housekeeping unit.
There are also sober living beds affiliated with a formal treatment program, Sober
Living by the Sea (SLBTS), which are approved and not subject to abatement.
For individuals who wish to reside in a duplex occupied entirely by sober living
residents with up to six individuals per duplex unit, 60 beds (located in both units
of five duplexes) will remain in their current location. Twenty-four additional beds
(located in both units of two duplexes) are currently in operation but plan to close
within 30 months of the effective date of the agreement, under the terms of the
Zoning Agreement between the City and SLBTS. SLBTS also operates six beds
in one unit of a duplex, also due to close within 30 months of the effective date of
the agreement. The City is not aware of how many of these beds are available
specifically to female clients.
Currently, the City is in the process of entering a similar zoning agreement with
Morningside Recovery, which would allow Morningside Recovery to continue
operation of sober living facilities housing up to 36 resident clients in five duplex
units and one single-family condominium dwelling. The City is not currently
aware of how many of these beds are available specifically to female clients.
A denial of the reasonable accommodation would not deprive prospective
residents of Balboa Recovery of the opportunity of live in a residential setting with
11 other individuals in recovery in two units of a duplex building. These alternate
residential settings also provide self-paced recovery options that allow residents
sufficient time for personal psychological growth while avoiding the use of alcohol
and other substances. However, to the best of staff's knowledge, the only other
sober living facility in the City that offers housing for only three female resident
clients per duplex unit is the other female-only Balboa Recovery facility located at
204 21 5t Street.
Summary: Staff asserts that Finding No.2 can be made with the reduced population of
a maximum of six resident clients and two resident managers in both units of the duplex
building. Staff recommends that if the requested reasonable accommodation is
granted, a condition of approval be imposed limiting the maximum occupancy of the
facility to six resident clients and two resident managers. In addition, if the Hearing
Officer deems it appropriate to grant the applicant's request to include an interim period
in which all eight resident clients currently residing in the facility may remain at the
property between July 2, 2010 and September 30, 2010, staff recommends that the
Hearing Officer condition the grant of accommodation. Staff has prepared a draft
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 9
condition of approval addressing this request to state that as of the date of approval of
the accommodation, no additional residents shall be accepted at the facility until attrition
of current clients causes the facility to house fewer than six resident clients.
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.
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."
Facts in support of finding:
Zoning District Consideration: NBMC Section 20.10.010 sets forth the basic
purposes for establishing zoning districts which 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 Section 20.10.010 of the NBMC for the R-2 District is
that the district "provides areas for single-family and two-family residential land uses."
Section 20.10.020 of the NBMC establishes those uses that are permitted, conditionally
permitted, and prohibited within the R-2 District. In accordance with Section 20.10.020
of the NBMC, unlicensed residential care facilities are not permitted in the R-2 District,
and are only permitted in the MFR District subject to approval of a use permit.
If the amended reasonable accommodation were granted to allow the continued
operations of the sober living facility with a requirement to limit the maximum occupancy
to six resident clients and two resident managers in the two units of the duplex building,
the intensity of the use would be consistent with typical residential development
intensity in the R-2 District. The intensity of the use would also be compatible with the
surrounding two-family residential properties.
Building Code and Life Safety Consideration: The State Fire Marshal has made the
determination that residential care occupancies with more than six residents have
characteristics that require a certain degree of extra protection for the safety of the
residents. Pursuant to the provisions of the California Building Code, facilities providing
residential care and housing for more than six resident clients in a building are classified
as an R-4 occupancy. This occupancy group includes buildings arranged for social
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 10
rehabilitation, including alcoholism or drug abuse recovery or treatment for seven or
more resident clients.
If the occupancy of the facility is reduced to provide housing for six resident clients and
two resident managers within the two units of the duplex building, the building would be
classified as an R-3.1 occupancy. Building code requirements for R-3.1 occupancies
are similar to requirements for occupancies classified as R-3. The R-3 occupancy
classification and requirements apply to single family homes and duplexes. The code
requirements of an R-3.1 occupancy are less stringent than an R-4 occupancy, and the
existing duplex building can easily and cost-effectively be brought into compliance with
the R-3.1 code requirements.
Use Permit Consideration: Ordinance No. 2008-05 places regulations on all groups
not living as either a single housekeeping unit or designated "Residential Care Facilities,
Small Licensed" in residential districts. The basic purpose of these regulations is to
ensure (1) that the fundamental purposes of the Zoning Code can be achieved, (2) that
adverse secondary impacts produced by group residential uses not living as a single
housekeeping unit can be eliminated, and (3) that the adverse secondary impacts that
"Residential Care Facilities, General" and "Residential Care Facilities, Small
Unlicensed" may have on the surrounding neighborhood can be mitigated. To
accommodate the needs of the disabled for housing opportunities, Ordinance No. 2008-
05 provides that non-conforming residential care facilities located in residential districts
may be allowed to continue operating subject to approval of either a use permit, if
applied for within the time period specified in the ordinance, or a request for reasonable
accommodation.
Use permits are required for use classifications typically having operating characteristics
requiring 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 stated 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.
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 11
Even if the facility is exempted from Section 20.10.020 and permitted to remain in its
current location, 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 a reasonable accommodation that it could 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 a facility to the
detriment of neighbors.
Unlike a use permit, a reasonable accommodation is not 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 Balboa
Recovery ceased to provide disabled housing at this location, the accommodation
would no longer be necessary and would cease.
Pursuant to Section 20.98.025(0) 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.
Balboa Recovery, Inc. requests an amended reasonable accommodation to allow
the continued operation of an existing sober living facility to provide housing for
no more than six disabled individuals in a facility in both units of a duplex. The
requested amended accommodation would permit a maximum of six disabled
individuals in recovery and two resident managers in the two units of the duplex
building, all of which are not living as a single housekeeping unit, to live on a
block of single housekeeping units. As a condition of approval, staff
recommends that the facility be required to limit the maximum occupancy to six
resident clients and two resident managers in the two units of the duplex building.
With the reduction in resident population as required by conditions of approval,
the intensity of the use would be consistent with the intensity of use that would be
produced. by single housekeeping units in two-family residential districts, and
would be compatible with the surrounding two-family residential properties. Staff
believes approval of the amended reasonable accommodation with appropriate
conditions of approval to allow the facility to remain in its current location in the
R-2 District would not undermine the basic purpose of this portion of the City's
zoning program.
B. Whether the accommodation would result in a substantial increase in
traffic or insufficient parking.
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 12
Parking -The duplex building occupied by the facility has two enclosed garage
parking spaces. The Zoning Code requires one on-site parking space per three
residential care facility beds. With six residential care facility beds, the required
parking for the facility would be two spaces. As such, the facility currently meets
the required parking standards.
Some residents are permitted to have personal vehicles while residing at the
facility. As a proposed condition of approval, the two designated garage parking
spaces at the sober living facility shall remain open and available for parking for
staff and the resident clients at all times. In addition, the operator shall limit the
number of vehicles onsite at anytime to two, which must be parked in the garage.
At most, one other resident client may have a vehicle and park on the street in a
legally designated parking space. Client move-in and move-out shall be
accomplished in a manner that does not block traffic, area driveway or alleys.
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· 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. Based on these
standards, a duplex would generate approximately 13.44 average daily trips,
whereas a six-bed residential care facility with two resident manager beds
occupying both units of a duplex would generate approximately 16.44 average
daily trips. Staff believes that this number does not represent a substantial
increase in traffic.
Due to the fact that the applicant limits and manages the use of personal vehicles
by residents at the facility, if the reasonable accommodation were granted with a
condition of approval limiting the maximum number of residents to six resident
clients and two resident managers, the number of trips generated would not be
significantly in excess of trips generated by that of a duplex. Approval of the
amended request for reasonable accommodation would include conditions that
restrict use of residents' personal vehicles while living at the facility, which would
reduce impacts on parking to an insubstantial level.
C. Whether granting the 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
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
requested accommodation with the recommended conditions of approval
enables the City to apply appropriate reasonable regulations on the facility,
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 13
consistent with 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.
With the upcoming abatement of the sober living facility at 127 29th Street, there
are no other documented facilities similar in nature or operation to the subject
facility within this block or any of the immediately adjacent blocks. Thus, the
granting of the reasonable accommodation with a condition of approval limiting
the maximum occupancy of the facility to six residents and two resident
managers in the two units of the duplex building would not create an
institutionalized environment.
Summary: Staff believes Finding No.4 can be made with conditions imposed on the
use that will allow the amended request for reasonable accommodation be granted
consistent with the basic purposes of NBMC Sections 20.10.010, 20.10.020, and
Chapter 20.91A. The recommended conditions of approval are described below.
1. That the operator of the sober living facility agree to a bed cap of no more than
six resident clients plus two resident managers, who shall be qualified recovery
specialists;
2. If the applicant obtains a license from ADP to operate a facility for six or fewer
clients in one of the duplex units, the other unit may only be used to provide
housing for a single housekeeping unit; and
3. Quiet hours between 10:00 p.m. and 8:00 a.m.;
4. Require 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.
Essentially, these conditions would require that the facility comply with the development
and operational standards required of similar facilities receiving a use permit under
NBMC Chapter 20.91A. Staff believes that with these conditions, the findings required
by NMBC Section 20.91A.060 for issuance of a use permit could be made with regard
to this facility. With conditions of approval, the use could conform to all applicable
provisions of Section 20.91A.050.
Staff believes that, as conditioned, the use would be compatible with the character of
the surrounding neighborhood, and the continued maintenance of the use would not
contribute to changing the residential character of the neighborhood or create an
overconcentration of residential care uses in the vicinity. In considering whether the
residential character of the neighborhood would be changed, staff has considered that
the American Planning Association standard of one or two such uses per block is not
exceeded by allowing the continued maintenance of this facility as there will be no other
Reasonable Accommodation No. 2009-002
Request for Amendment
June 11, 2010
Page 14
residential care uses on this block, or any of the immediately adjacent blocks. There
has been no evidence presented to staff that indicates that there have been any issues
with delivery of goods that adversely affect the peace and qUiet of neighboring
properties, or issues of trash generated in excess of surrounding properties.
CONCLUSION
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 the amended reasonable accommodation proposed by the
applicant with a limit on the total bed count for resident clients to six beds, staff believes all
five findings can be made. In addition, staff believes the sober living facility would need to
retain on-site resident managers who are qualified recovery specialists to monitor and
ensure the safety of the resident clients. Permitting a facility with no more than six resident
client beds to remain in its current location in the R-2 District would not undermine the
basic purpose of this portion of the City's zoning program
In addition, there would be conditions imposed with the granting of the reasonable
accommodation that would result in the facility complying with the development and
operational standards required of similar facilities receiving a use permit under NBMC
Chapter 20.91A. Staff believes that with these conditions, the findings that NMBC
Section 20.91A.060 requires for issuance of a use permit could be made with regard to
this facility. With conditions of approval, the use would conform to all applicable
provisions of Section 20.91A.050, the building provides sufficient on-site parking for the
use, and traffic impacts are similar to those generated by surrounding single-family and
twO-family uses. The property and existing structure is physically suited to
accommodate the use.
If the proposed conditions are approved and followed, staff believes that Finding No.2
and Finding No. 4 can be made, and that granting the requested accommodation will
not undermine the basic purpose which the zoning program seeks to achieve, and will
not result in a fundamental alteration in the nature of the City's zoning program.
Staff recommends that the Hearing Officer:
1. Approve the request for Reasonable Accommodation No. 2009-002 based on the
findings discussed in this report; and
2. Adopt a Resolution of Approval with proposed Conditions of Approval for
Reasonable Accommodation No. 2009-002, which is attached to this report, or
3. Issue a written determination and findings within ten days from the date of the
public hearing, and direct staff to prepare a resolution based on the Hearing
Officer's written determination and findings, with appropriate conditions, for
adoption by the Hearing Officer.
Attachment No. 1
Draft Resolution of Approval
RESOLUTION NO. HO-2010-_
A RESOLUTION OF A HEARING OFFICER OF THE CITY OF
NEWPORT BEACH APPROVING A REASONABLE
ACCOMMODATION FOR A RESIDENTIAL CARE FACILITY
LOCATED AT 124 30TH STREET AND OPERATED BY BALBOA
RECOVERY, INC. (PA 2009-012)
WHEREAS, Ordinance No. 2008-05 was adopted by the Newport Beach City Council
on January 22, 2008, following noticed public hearings, and the ordinance amended the City
of Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and
WHEREAS, Ordinance No. 2008-05 added Chapter 20.98 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 Kevin Cullen, on behalf of Balboa Recovery, Inc.,
requesting a reasonable accommodation from the requirements of Newport Beach Municipal
Code (NBMC) Section 20.10.020 (Residential Districts: Land use Regulations) with respect to
property located at 124 30th Street, and legally described as Newport Beach City Block 29, Lot
18, Tract 512; and
WHEREAS, a public hearing was held on May 20, 2009, presided by Hearing Officer
Thomas Allen, who determined that the findings required by Section 20.98.025(B) of the NBMC
could not be made to grant a reasonable accommodated for 10 resident clients and two resident
managers, and on July 2, 2009, the Hearing Officer adopted Resolution No. HO-2009-015
denying Reasonable Accommodation No. 2009-002 without prejudice, granting the applicant a
one-year period in which to abate the use; and
WHEREAS, on February 1, 2010, Kevin Cullen submitted a request for an amendment
to his request for Reasonable Accommodation No. 2009-002 to allow the continued operation
of an existing sober living facility with a reduced population from 10 female adult resident
clients and two resident managers to no more than six female adult resident clients and two
resident managers in the two units of a duplex building. The facility is located in the R-2
District, where such uses are not permitted, and the applicant requests an accommodation
from the requirements that sober living facilities are permitted only in MFR Districts with
approval of a use permit; and
WHEREAS, a public hearing was held on June 11, 2010, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and
purpose of the meeting was given in accordance with the Municipal Code and other
applicable laws. Evidence, both written and oral, was presented and considered at this
meeting; and
WHEREAS, the hearing was presided over by Judy Sherman, Hearing Officer for the
City of Newport Beach; and
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 2 of 15
WHEREAS, the required findings of Section 20.98.025(B) of the NBMC and facts in
support of such findings are as follows:
1. Finding: 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: Balboa Recovery, Inc. submitted a statement signed
under penalty of perjury that every resident of the facility is in recovery from alcohol
and/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: 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 Finding: The applicant has submitted an amended request for
reasonable accommodation to allow· six female resident clients and two resident
managers in the two units of the duplex building. The applicant has stated that
continued operation in this location provides a therapeutic benefit to its clients, and
that it is necessary to provide a resident manager in each unit in order to monitor the
residents' activities and ensure their safety.
In the interim, between now and the end of September 2010, the applicant has
requested that the current population level of eight resident clients be allowed to
remain in the two units of the duplex building. This would allow the current resident
clients to complete their intended stay, and provide these residents an equal
opportunity to use and enjoy their current dwelling.
The Hearing Officer finds that with a reduced facility population of six female resident
clients in both units of the duplex building, the amended accommodation will continue
to afford disabled individuals an equal opportunity to use and enjoy a dwelling in a
small sober living environment.
The Hearing Officer deems it appropriate to condition the grant of accommodation to
include an interim period in which all eight resident clients currently residing in the
facility may remain at the property between July 2, 2010 and September 30, 2010.
Further, the Hearing Officer determines it is appropriate to condition the grant of
accommodation to state that, as of the date of approval of the accommodation, no
additional residents shall be accepted at the facility until attrition of current clients
causes the facility to house fewer than six resident clients.
The Hearing Officer finds there are limited opportunities within the City for females in
recovery to live in a female-only building with six or fewer other recovering individuals,
surrounded by other single housekeeping units. The Hearing Officer has determined
the requested reasonable accommodation is necessary to provide an opportunity for
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 3 of 15
disabled female residents to live in a small self-paced recovery environment in a
residential setting which allows the residents to reintegrate into the world and
workforce.
NBMC Section 20.98.025(C) allows the Hearing Officer 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.
With the granting of the requested accommodation, 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 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. This facility appears to be the only residential care facility of
any description on this block, or any of the adjacent blocks with the exception of an all-
male sober living facility located at 127 29th Street which is currently subject to
abatement. The operators of the 29th Street facility are in the process of entering an
abatement agreement with the City which requires closure of the facility by August 31,
2010, at the latest.
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 applicant requests an exemption from the requirements of NBMC Section
20.10.020 to allow the continued operation of an existing unlicensed residential care
facility located in an R-2 District where the NBMC permits such uses only in an MFR
District with approval of a use permit. The applicant seeks to continue the operations
of the existing sober living facility with no more than six disabled individuals in the two
units of a duplex building. The Hearing Officer finds that facts have been provided that
support a finding that by allowing the facility to continue at its current location with no
more than six female resident clients, females with a disability would be afforded an
equal opportunity to enjoy the housing type of their choice in a small, gender-specific
recovery 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 contends that relocation of the current facility would be a significant
financial burden, and reports that, with the requested accommodation, changed
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 4 of 15
circumstances now allow the facility to be financially viable under conditions similar to
those at other facilities of a similar nature and operation.
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 MuniCipal Code authorizes the City to consider the availability of other facilities
that are of a "similar nature and operation." Based on an inventory conducted in April
2010, females in recovery from alcoholism or chemical dependency wishing to live in
Newport Beach in a sober living environment have the following housing opportunities
that they can choose from:
• Balboa Recovery operates a single comparable facility, with housing for six
female resident clients in two units of a duplex at 204 21 st Street under a
reasonable accommodation granted in May 2009; and
• Pacific Shores Properties operates one female-only sober living home, in one
unit of its 492 and 492 % Orange Street facility. This unit was granted a
reasonable accommodation allowing it to continue to house up to 12 resident
clients; and
• An unlimited number of beds are available via the use of any home in Newport
Beach, provided that the occupants reside there as a single housekeeping unit
in compliance with the City's definition of single housekeeping unit.
There are also sober living beds affiliated with a formal treatment program, Sober
Living by the Sea (SLBTS), which are approved and not subject to abatement. For
individuals who wish to reside in a duplex occupied entirely by sober living residents
with up to six individuals per duplex unit, 60 beds (located in both units of five
duplexes) will remain in their current location. Twenty-four additional beds (located in
both units of two duplexes) are currently in operation but plan to close within 30
months of the effective date of the agreement, under the terms of the Zoning
Agreement between the City and SLBTS. SLBTS also operates six beds in one unit of
a duplex, also due to close within 30 months of the effective date of the agreement.
The City is not aware of how many of these beds are available specifically to female
clients.
Currently, the City is in the process of entering a similar zoning agreement with
Morningside Recovery, which would allow Morningside Recovery to continue operation
of sober living facilities housing up to 36 resident clients in five duplex units and one
single-family condominium dwelling. The City is not currently aware of how many of
these beds are available specifically to female clients.
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 5 of 15
A denial of the reasonable accommodation would not deprive prospective residents of
Balboa Recovery of the opportunity of live in a residential setting with 11 other
individuals in recovery in two units of a duplex building. These alternate residential
settings also provide self-paced recovery options that allow residents sufficient time for
personal psychological growth while avoiding the use of alcohol and other substances.
However, at this time it appears that the only other sober living facility in the City that
offers housing for only three female resident clients per duplex unit is the other female-
only Balboa Recovery facility located at 204 21 st Street.
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 allowing the facility to
remain at its current location so long as 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. To date, there have been no complaints
made to the City regarding the operations of this facility.
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: As analyzed below, the Hearing Officer finds that allowing
the current residents to remain for an interim period between July 2, 2010 and
September 30,2010, and a maximum of no more than six female resident clients and
two resident managers, as requested by the applicant, would not result in a
fundamental alteration of a City zoning program.
Zoning District Consideration: NBMC Section 20.10.010 sets forth the basic
purposes for establishing zoning districts which 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 Section 20.10.010 of the
NBMC for the R-2 District is that the district "provides areas for single-family and two-
family residential land uses."
Section 20.10.020 of the NBMC establishes those uses that are permitted,
conditionally permitted, and prohibited within the R-2 District. In accordance with
Section 20.10.020 of the NBMC, unlicensed residential care facilities are not permitted
in the R-2 District, and are only permitted in the MFR District subject to approval of a
use permit.
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 6 of 15
The Hearing Officer finds that the intensity of the use would be consistent with typical
residential development intensity in the R-2 District with the granting of the reasonable
accommodation to allow the continued operations of the sober living facility with a
maximum occupancy of six resident clients and two resident managers in the two units
of the duplex building. The Hearing Officer finds that the intensity of the use would also
be compatible with the surrounding two-family residential properties.
Building Code and Life Safety Consideration: The State Fire Marshal has made
the determination that residential care occupancies with more than six residents have
characteristics that require a certain degree of extra protection for the safety of the
residents. Pursuant to the provisions of the Califomia Building Code, facilities
providing residential care and housing for more than six resident clients in a building
are classified as an R-4 occupancy. This occupancy group includes buildings
arranged for social rehabilitation, including alcoholism or drug abuse recovery or
treatment for seven or more resident clients.
If the occupancy of the facility is reduced to provide housing for six resident clients and
two resident managers within the two units of the duplex building, the building would
be classified as an R-3.1 occupancy. Building code requirements for R-3.1
occupancies are similar to requirements for occupancies classified as R-3. The R-3
occupancy classification and requirements apply to single family homes and duplexes.
The code requirements of an R-3.1 occupancy are less stringent than an R-4
occupancy, and the existing duplex building can easily and cost-effectively be brought
into compliance with the R-3.1 code requirements.
Use Permit Consideration: Ordinance No. 2008-05 places regulations on all groups
not living as either a single housekeeping unit or designated "Residential Care
Facilities, Small Licensed" in residential districts. The basic purpose of these
regulations is to ensure (1) that the fundamental purposes of the Zoning Code can be
achieved, (2) that adverse secondary impacts produced by group residential uses not
living as a single housekeeping unit can be eliminated, and (3) that the adverse
secondary impacts that "Residential Care Facilities, General" and "Residential Care
Facilities, Small Unlicensed" may have on the surrounding neighborhood can be
mitigated. To accommodate the needs of the disabled for housing opportunities,
Ordinance No. 2008-05 provides that non-conforming residential care facilities located
in residential districts may be allowed to continue operating subject to approval of
either a use permit, if applied for within the time period specified in the ordinance, or a
request for reasonable accommodation.
Use permits are required for use classifications typically having operating
characteristics requiring 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:
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 7 of 15
... 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 stated 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, it is not exempt from reasonable controls the Hearing Officer 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 can impose the same conditions through a reasonable accommodation
that he or she could 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 a facility to the detriment of neighbors.
The Hearing Officer finds that conditions of approval should be and accordingly are
applied to the use that will allow the accommodation to be granted consistent with the
basic purposes of NBMC Sections 20.10.010,20.10.020, and Chapter 20.91A. The
Hearing Officer's conditions of approval are described below.
1. The operator of the sober living facility shall agree to a bed cap of no more than
six female resident clients plus two resident managers, who shall be qualified
recovery specialists;
2. If the applicant obtains a license from ADP to operate a facility for six or fewer
clients in one of the duplex units, the other unit may only be used to provide
housing for a single housekeeping unit; and
3. Quiet hours between 10:00 p.m. and 8:00 a.m.;
4. 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 is required.
Essentially, these conditions would require that the facility comply with the
development and operational standards required of similar facilities receiving a use
permit under NBMC Chapter 20.91A. The Hearing Officer finds that with these
conditions, the findings required by NMBC Section 20.91A.060 for issuance of a use
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 8 of 15
permit could be made with regard to this facility. With conditions of approval, the use
could conform to all applicable provisions of Section 20.91A.050.
The Hearing Officer finds, that as conditioned, the use would be compatible with the
character of the surrounding neighborhood, and the continued maintenance of the use
would not contribute to changing the residential character of the neighborhood or
create an overconcentration of residential care uses in the vicinity. In considering
whether the residential character of the neighborhood would be changed, the Hearing
Officer has considered that the American Planning Association standard of one or two
such uses per block is not exceeded by allowing the continued maintenance of this
facility as there will be no other residential care uses on this block, or any of the
immediately adjacent blocks. In addition, there has been no evidence presented to the
Hearing Officer that indicates that there have been any issues with delivery of goods
that adversely affect the peace and quiet of neighboring properties, or issues of trash
generated in excess of surrounding properties.
Pursuant to Section 20.98.025(0) of the NBMC, the Hearing Officer 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.
Balboa Recovery, Inc. requests an amended reasonable accommodation to allow the
continued operation of an existing sober living facility to provide housing for no more
than six disabled individuals in a facility in both units of a duplex. The requested
accommodation would permit a maximum of six disabled individuals in recovery and
two resident managers in the two units of the duplex building, all of which are not living
as a single housekeeping unit, to live on a block of single housekeeping units. As a
condition of approval, the Hearing Officer requires that the facility be limited to a
maximum occupancy of six resident clients and two resident managers in the two units
of the duplex building.
With the reduction in resident population as required by conditions of approval, the
intensity of the use would be consistent with the intensity of use that would be
produced by single housekeeping units in two-family residential districts, and would be
compatible with the surrounding two-family residential properties. The Hearing Officer
finds that approval of the reasonable accommodation with appropriate conditions of
approval to allow the facility to remain in its current location in the R-2 District will not
undermine the basic purpose of this portion of the City's zoning program.
B. Whether the accommodation would result in a substantial increase in traffic or
insufficient parking.
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 9 of 15
Parking -The duplex building occupied by the facility has two enclosed garage
parking spaces. The Zoning Code requires one on-site parking space per three
residential care facility beds. With six residential care facility beds, the required
parking for the facility would be two spaces. As such, the facility currently meets the
required parking standards.
A condition of approval is included requiring that the two designated garage parking
spaces at the sober living facility shall remain open and available for parking for staff
and the resident clients at all times. In addition, the applicant shall limit the number of
vehicles onsite at anytime to two, which must be parked in the garage. At most, one
other resident client may have a vehicle and park on the street in a legally designated
parking space. Client move-in and move-out shall be accomplished in a manner that
does not block traffic, area driveway or alleys.
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 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. Based on these standards, a
duplex would generate approximately 13.44 average daily trips, whereas a six-bed
residential care facility with two resident manager beds occupying both units of a
duplex would generate approximately 16.44 average daily trips. The Hearing Officer
finds that this number does not represent a substantial increase in traffic.
Due to the fact that the applicant limits and manages the use of personal vehicles by
residents at the facility, the number of trips generated would not be significantly in
excess of trips generated by that of a duplex with the granting of the reasonable
accommodation with a condition of approval limiting the maximum number of residents
to six resident clients and two resident managers. Approval of the amended request
for reasonable accommodation includes conditions that restrict use of residents'
personal vehicles while living at the facility, which will reduce impacts on parking to an
insubstantial level.
c. Whether granting the 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 to minimize
impacts on residential neighborhoods. The City adopted Ordinance No. 2008-005 in
order to implement General Plan Policy LU 6.2.7. The Hearing Officer finds that
granting the requested accommodation with the recommended conditions of approval
enables the City to apply appropriate reasonable regulations on the facility, consistent
with the express purpose of the General Plan with regard to these facilities.
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 10 of 15
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.
With the upcoming abatement of the sober living facility at 127 29th Street, there are no
other documented facilities similar in nature or operation to the subject facility within
this block or any of the immediately adjacent blocks. The Hearing Officer finds that
granting the reasonable accommodation with a condition of approval limiting the
maximum occupancy of the facility to six residents and two resident managers in the
two units of the duplex building would not create an institutionalized environment.
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." 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. The Hearing Officer finds that the requested
accommodation will not result in a direct threat to the health or safety of other
individuals or substantial physical damage to the property of others.
WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section 15301
of the Califomia Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). This
class of projects has been determined not to have a significant effect on the environment and is
exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA
applies only to projects that have the potential for causing a significant effect on the environment
(Section15061(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 it is not subject to
CEQA; and
NOW THEREFORE, BE IT RESOLVED:
Section 1. The Hearing Officer of the City of Newport Beach hereby approves Reasonable
Accommodation No. 2009-002, subject to the Conditions set forth in Exhibit "A" attached hereto
and made a part hereof.
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.
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 11 of 15
PASSED, APPROVED AND ADOPTED THIS 11th DAY OF JUNE, 2010.
ATTEST:
City Clerk
By: ----:---:--::-:-----c-:----:---:-=--
Judy Sherman, Hearing Officer
EXHIBIT" A"
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 12 of 15
CONDITIONS OF APPROVAL
REASONABLE ACCOMMODATION NO. 2009-002
BALBOA RECOVERY INC. at 124 30th Street, Units A and B
1. Grant of Reasonable Accommodation. Reasonable Accommodation No. 2009-
002 is granted solely to Balboa Recovery, Inc. (hereinafter "the operator") to operate
an adult sober living facility for disabled female clients in the two units of a duplex
building located at 124 30th Street. Reasonable accommodation to occupy the
building (inclusive of both units) is granted to six disabled female persons and two
resident managers. The Operator shall execute an affidavit declaring that all
clients receiving services from this facility are disabled persons.
2. Interim Occupancy Level. For an interim period, from the date of adoption of this
resolution to September 30, 2010, the Operator shall limit occupancy of the building
to eight resident female client beds and two on-site resident managers, who shall be
qualified recovery specialists. If any of the eight resident clients currently residing at .
the facility as of the date of approval of Reasonable Accommodation No. 2009-002
cease residency at the facility after July 2, 2010, the Operator shall not accept any
additional residents that would cause the facility's population to exceed six resident
clients. Under no circumstance shall more than eight female clients in recovery
reside in the building during this interim period.
3. Occupancy Level. Effective October 1, 2010 (or earlier, if attrition of current
residents permits), the Operator shall limit occupancy of the building to six female
resident client beds and two on-site resident managers, who shall be qualified
recovery specialists. No more than six persons in recovery may reside in the
building.
4. Staffing. Operator shall have two qualified resident managers on-site at all time (24
hours a day, seven days a week) to appropriately and responsibly manage the
facility.
5. Governmental Referrals. Operator shall not provide any services to any client or
house any client who has been referred or caused to be referred to this facility by any
governmental agency, including but not limited to probationers or parolees.
6. Assembly Uses. Assembly uses are prohibited, except those that are limited solely
to client residents of the facility and facility staff.
7. Medical Waste. Any and all medical waste generated through the operation of the
facility shall be disposed of in accordance with the City of Newport Beach's Municipal
Code, all other laws and best industry standards and practices.
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 13 of 15
8. Trash. Operator shall abide by the City's regulations regarding trash dsposal
including providing the proper amount of trash cans for the property's use (so that
cans do not overflow), placing the cans out no earlier than 7:00 pm the evening prior
to collection, and placing the cans back in the side yard (or other contained area) no
later than 6:00 pm the day of collection.
9. Smoking & Cigarette Litter. Per NBMC Section 2091A.050(A), no clients, guests,
or any other users of the subject property may smoke in an area from which the
secondhand smoke may be detected on any parcel other than the parcel upon which
the use is located. Balboa Recovery Inc. will enforce house rules against litter,
including allowing clients, staff, or residents from littering cigarette butts on the
ground, sidewalk, gutter or street.
10. Vehicles, Parking & Garages. This facility may have a maximum of three vehicles
associated with its use. The Operator shall keep the two designated garage parking
spaces at the facility open and available for parking for staff, and resident clients at all
times. At most one other client in the facility may have a vehicle and park on the
street in a legally-designated parking spot. Client move-in and move-out shall be
accomplished in such a manner that traffic on 30th Street is not blocked, nor may area
alleys be blocked.
11. Transportation. No transportation services shall be provided by the facility
operator.
12. Quiet Hours. The on-site facility manager shall maintain "Quiet Hours" between
10:00 p.m. and 8:00 a.m., daily, where persons on the street or on adjacent
properties cannot hear any noise (including music, TV's, voices) from the facility
except in an emergency.
13. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City upon
the property owner and operator.
14. Deliveries. Any deliveries of business products and other packages and goods to
the facility during weekdays shall be made between the hours of 9:00 a.m. to 5:00
p.m.
15. Contact Information. Operator shall provide area residents and the City with a 2417
contact name, phone number and e-mail address to assist residents and the City with
problems or concerns arising from the facility. E-mails or messages left for the
Operator's designated contact shall be returned in prompt manner within the next 24-
hour period.
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 14 of 15
16. Building and Zoning. Operator recognizes that the subject property has specific
setbacks from the side yards, front yard, and/or back yard per the City's Building and
Zoning Codes. Operator will keep these setbacks clear of obstruction, including
building obstruction. The orderly storage of trashcans is acceptable in setbacks.
17. Nuisances. The subject property shall not be unsafe, unsightly or poorly maintained.
If Operator receives a nuisance violation from the City in regard to any of these
issues, Operator shall correct the violation with seven days or contact the City directly
to discuss an alternative timeline consistent with the Newport Beach Municipal Code.
18. Beaches and Other Common Gathering Areas. Operator's use of the beaches for
meetings, prayer, conversation, or other gatherings shall show due respect to non-
resident visitors, residents, and other beachgoers, thus allowing them to take full
enjoyment of the beach. Operator shall not conduct business on the beach (per
NBMC 10.08.030)
19. Services to Facility's Clients or Residents. Operator will use industry's best
practices to ensure that the facility's clients or residents stay in recovery (including
scheduled substance testing, random substance testing, and encouragement of 12-
Step meetings or counseling). Operator has represented that the facility operates
with an average client stay of 300-days. Operator shall use best efforts to maintain,
at a minimum, average client stay of 300-days. Operator shall ensure that any client
or resident removed from Operator's program or facility has the resources necessary
to return home.
20. Federal, State and Local Laws. Operator shall comply with all federal, state, and
local laws. The issuance of this reasonable accommodation shall not constitute a
waiver of the requirements of any federal, state or local law, including the
requirements of the California Building Code and Fire Code.
21. Additions or Modifications to Conditions of Approval, or Revocation of
Reasonable Accommodation. The Hearing Officer or City Council may add or
modify conditions of approval to this reasonable accommodation, or revoke this
Reasonable Accommodation upon a finding of failure to comply with the conditions
set forth. The City Council may also revoke, modify, or amend this Reasonable
Accommodation if it determines the conditions under which this facility is being
operated or maintained are detrimental to the public health, safety, peace, morals,
comfort, or general welfare of the community, or if the facility is materially injurious
to property or improvements in the vicinity, or if the facility is operated or
maintained so as to constitute a public nuisance. In any proceeding to revoke this
Reasonable Accommodation, the cumUlative effect of a violation of two or more
conditions shall be considered.
22. Compliance with Conditions of Approval. Per NMBC Section 20.98.035
(Amendments), a request for changes in conditions of approval shall be treated as
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
P<,lge 15 of 15
a new application unless they are minor, do not involve a sUbstantial alteration to
the plan or conditions of approval, and are consistent with the intent of the original
approval. Any changes in operational characteristics, including but not limited to
the following, shall require amendment to this reasonable accommodation or can
only take effect upon issuance of a new reasonable accommodation:
a. Increase in number of resident clients.
b. Change in gender-specific nature of housing.
c. Change in on-site staffing affecting the ability of the operator to adequately
manage the facility and provide supervision of its residents.
d. A change in physical capacity of facility including number of beds, number of
bedrooms, floor area offacility, etc.
e. Request for amendment to any condition or conditions or approval.
f. Change in property ownership in a manner that causes the majority of the
property to be owned by a person or entity not identified in the Reasonable
Accommodation or its application.
g. Change in client base such that persons living there are no longer classified as
disabled or verified to be disabled.
h. Alteration and/or loss of approved on-site parking.
i. Upon determination by the Planning Director, a change in facility management,
a change in facility ownership, or a change in the population served by this
facility. The term "change in facility management" shall include but not be
limited to a change in the current management of Balboa Recovery, Inc.
and/or the conveyance, sale or assignment of a majority of Balboa Recovery,
Inc.'s rights and obligations as to the facility at 124 30th Street to any
successors in interest or assignees of Balboa Recovery, Inc.
j. Any other material change in the operational characteristics that is not in
substantial conformance with the Operation and Management Plan, upon
determination by the Planning Director.
# # #
Attachment No.2
May 20,2009 Staff Report
CITY OF NEWPORT BEACH
HEARING OFFICER STAFF REPORT May 20, 2009
Agenda Item
TO: Thomas W. Allen, Hearing Officer
SUBJECT: Balboa Recovery Inc. (PA2009-012)
124 30th Street
Reasonable Accommodation No. 2009-002
APPLICANT: Kevin Cullen
PLANNER: Janet Johnson Brown, Associate Planner
(949) 644-3236, jbrown@city.newport-beach.ca.us
PROJECT SUMMARY
A Reasonable Accommodation application for relief from the requirements of Newport
Beach M unicipal Code (N BMC) S ection 2 0.10.020, (Residential Districts: L and u se
Regulations) to allow the continued operation of an existing sober living home for up to
ten (10) female adult resident clients and two (2) resident manager in two units of a duplex. The facility is located in the R -2 District, where such uses are not permitted.
The a pplicant requests an ac commodation f rom t he r equirements that s ober living
facilities are permitted only in MFR Districts with approval of a use permit.
RECOMMENDATION Staff recommends the Hearing Officer:
1. Deny the request for Reasonable Accommodation No. 2009-002 based on the
findings d iscussed in this report but subject to an up to 12-month abatement
period, and 2. Direct staff to prepare a Resolution of Denial that allows this Facility to stay in
operation for a maximum of 12 months, subject to operational conditions (see
Exhibit A) during the 12-month period, and subject to abatement at the end of the
12-month period.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 2
VICINITY MAP
GENERAL PLAN ZONING
LOCATION GENERAL PLAN ZONING CURRENT USE
ON-SITE RT, Two-Unit Residential R-2, Two-Family
Residential
Duplex, w/ Sober Living Facility
in both units
NORTH RT, Two-Unit Residential R-2, Two-Family Residential Residential Uses
SOUTH RT, Two-Unit Residential R-2, Two-Family
Residential Residential Uses
EAST RT, Two-Unit Residential SP-6/R-2, Two-Family Residential Residential Uses
WEST RT, Two-Unit Residential R-2, Two-Family
Residential Residential Uses
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 3
INTRODUCTION
The subject property is situated on the south side of 30th Street approximately 50 feet
from the intersection of 30th Street and West Balboa Boulevard. The property is zoned R-2 (Two-Family Residential) and is developed with a two-story duplex with an attached
two-car garage. Surrounding properties include single and two-unit residential uses that
are primarily a mixture of rental and owner-occupied properties. A group residential use
that began operations without complying with Ordinance 2008-05 located at 127 29 th
Street is in close proximity to 124 30th Street – the 127 29th Street location is subject to abatement.
The property at 124 30th Street is o wned by Ocean #1 , LLC. Balboa Recovery Inc.
operates a sober living facility in this location for adults in recovery from alcohol and/or
drug abuse in both of units of the building. The facility houses up to ten (10) resident clients and two (2) resident managers and is restricted to females only. There are five (5) residents and one (1) resident manger in each of the units. In addition, no one
under the age of eighteen is permitted to reside in the facility. The applicant has stated
that residents are referred to the facility through Ocean Recovery, although there is no
official affiliation between Balboa Recovery and Ocean Recovery. Balboa Recovery Inc. also operates two similar facilities within the City:
3206 West Balboa Boulevard (reasonable accommodation under consideration for
six (6) clients p lus o ne (1) manager p er bui lding, or six (6) clients and o ne (1) resident manager in one unit, and a single housekeeping unit in the other unit of the duplex); and
204 21 st Street (reasonable accommodation issued for six (6) clients plus one (1)
manager in two units of the duplex building).
The applicant has indicated that both units have been utilized as a sober living facility
since October of 2006. To date, City Code Enforcement has received no complaints
about the facility. However, this staff report‟s exhibits include complaints from nearby
property owners. Some of the complaints are general, others are specific to smoking, profanity, and parking problems at 124 30 th Street. A t a hearing for another Balboa
Recovery facility (204 21 st Street) held on April 30, 2009, resident Drew Weatherholt
alleged th at a fight involving resid ents at 1 24 3 0
th Street had occurred on or about
February 8, 2009. Staff asked for the police report associated with the fight. The report
shows that the fight involved occupants of 125 30th Street – no clients at 124 30th Street are indicated in the report as being involved in the fight.
On January 21, 2009, the ap plicant submitted an A pplication f or Reasonable
Accommodation requesting an accommodation from the requirements of NBMC Section
20.62.090 Non-Conforming S tructures and Uses: A batement Periods and NBMC Section 20.91A.020 Use Permits in Residential Districts: Use Permits to Continue Non-Conforming Uses to enable the facility to remain in its current location (Exhibit 1).
After reviewing th e a pplication, staff in formed th e a pplicant that waivers from th e
application per iod es tablished by O rdinance N o. 200 8-05 c ould not be g ranted.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 4
Granting this request would undermine the basic purpose of the use permit application
deadline for existing uses, which was to identify existing nonconforming uses in
residential zones and grant use permits to qualified applicants on a timely basis.
Furthermore, the more narrowly tailored waiver requested by the applicant is eligible for a conditioned reasonable accommodation that could provide the same benefit the
applicant is seeking.
On April 7, 2009, staff requested additional information as well as clarifications from the
applicant. (Exhibit 2) Written responses from the applicant are included as Exhibit 3. Included as part of the responses, the applicant submitted an amended application
requesting a reasonable accommodation from the provisions in NBMC Section 20.10.20
Residential Districts: Land Use Regulations, and withdrew the initial reasonable
accommodation applicant requests.
Description of the Facility and Operations
The facility houses up to ten (10) resident clients and two (2) resident managers. There
are five (5) residents and one (1) manager in each of the units. Unit A in the upstairs
unit contains three-bedrooms that accommodate two beds in each room. Unit B at the ground level contains three (3)bedrooms that accommodate six (6) beds (two beds in each room (Exhibit 4 - floor plan). The resident manager of each unit shares a bedroom
with a resident client.
Individual clients reside at the facility under a separate written agreement with the operator, and are subject to a set of house rules which include abstinence from alcohol and drugs, drug testing as requested by the resident manager, and attendance at 12-
Step meetings. Under the house rules, residents are also required to abide by curfews
and quiet hours established by the facility, to refrain from smoking in the house, refrain
from “racist, sexist or foul language,” maintain and clean the dwelling unit, and complete assigned chores. Residents are required to be employed, actively seeking employment, or attending school full-time. All residents are required to be out of the dwelling
between the hours of 8:30 a.m. and 5:00 p.m. Exceptions may be made for residents
who are sick, work nights, or have permission from the House Manager (Exhibit 1)
Parking
The building provides two on-site parking spaces within an enclosed two-car garage
that is accessed to the rear via an alley.
Staffing
Application documents indicate that the facility has one resident manager who resides
in each unit to oversee facility operations and enforce house rules.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 5
Client stays
Client stays can range from 90 days to 545 days (18 months), with an average typical
stay of 300 days (10 months). Client stays are dependent on individual progress.
Curfew and quiet hours
Curfew hours for residents are 10:00 p.m. Sunday through Thursday, and 12:00 a.m.
Friday and Saturday. The house rules establish quiet hours from 10:00 p.m. to 8:00 a.m. Sunday through Thursday, and 12:00 am to 8:00 am Friday and Saturday. TV
and stereos can be only played at reasonable levels. After 9:00 pm headphones must
be used.
Treatment Services
No treatment services are provided on-site. However, for the first ninety (90) days following admission residents are required to attend at least one 12-Step meeting every day. After ninety (90) days residents are required to attend at least four 12-Step
meetings a week. In addition to the 12-Step program, residents are also required to
attend daily house meetings as well as attend required meetings by Balboa Recovery.
Transportation
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 facility can only provide parking for two (2) vehicles, which is typically reserved for
the resident managers. In the event that the resident managers do not use the parking
space a resident may have access to the space. The use and parking arrangement of a resident‟s vehicle must also receive corporate approval. The operator is also requesting the ability to use one off-site parking space via the City‟s parking permit program.
Deliveries
Residents are responsible for their own groceries and supplies. Bottled water is
delivered every two weeks.
Medical Waste
Medical waste is disposed in a manner compliant with NBMC Section 6.04.120. Any
urinalysis cups generated at the facility are kept separate from household refuse, and
transported to a treatment facility that receives and disposes of them.
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,
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 6
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(f)(3)(B)).
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 individuals.” McGary v. City of Portland, 386 F.3d 1259, 1261 (9th 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. Analysis
The applicant is requesting a Reasonable Accommodation exemption from the Newport
Beach Municipal Code (NBMC) Section 20.10.020 Residential Districts: Land Use Regulation. This section of the NBMC establishes permitted land uses or conditionally permitted land uses in residential districts, and includes special requirements, if any, for
specific uses.
The applicant‟s facility provides a sober living environment for up to ten (10) individuals in recovery from alcohol and/or drug addiction, and includes an on-site resident manager in each of the units. This land use would be classified as “Residential Care Facilities,
General.” Pursuant to NBMC Section 20.10.020 “Residential Care Facilities, General” that
are licensed or unlicensed, and “Residential Care Facilities, Small Unlicensed” (6 and
under residents) are not permitted in the R-2 District. Section 20.10.020 establishes that these uses are conditionally permitted only within the Multi-Family Residential (MFR) District 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 and that they be permitted in the R-2 District (current location) without a use permit.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 7
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 establishes required findings and factors the Hearing Officer may consider when making
those findings. 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.”
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 finding can be made. The applicant submitted a statement signed under penalty of
perjury that every resident of the facility is in recovery from alcohol and/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.
It is the applicant‟s burden to demonstrate that the requested accommodation is
necessary. “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.” Lapid-Laurel, LLC v. Zoning Bd. of Adjustment of the Township of Scotch Plains, 284 F.3d 442, 460 (3rd Cir. 2002)
In the Lapid-Laurel case, the court found that the necessity element was established as
to disabled elderly residents‟ need to live in a single-family residential area. However,
the need for the facility to house the number of residents requested by the facility operator was not demonstrated. The court said that for the operator to show necessity for the size of the facility, the operator would have to show either that: (1) the size of the
facility was necessary for the facility‟s financial viability (which the court appeared to
equate with giving the disabled an equal opportunity to use and enjoy a dwelling); or (2)
the size of the facility was necessary to provide a therapeutic benefit (and thus ameliorate an effect of the handicap.) The court found the facility operator had not demonstrated that the proposed size of the facility was necessary for either financial
viability or therapeutic benefit. 284 F.3d at 460-461.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 8
The Ninth Circuit followed the same requirement that a sober living facility operator
show a certain number of residents was necessary for financial viability or therapeutic
benefit to the residents in order to demonstrate the necessity of a reasonable accommodation in City of Edmonds v. Washington State Building Council, 18 F.3d 802
(9th Cir. 1994) In that case, the court noted that a sober living home had made a
preliminary showing of necessity because it had shown that it required six or more
residents to ensure financial self-sufficiency, and to provide a supportive atmosphere for
successful recovery. 183 F.3d at 803.
Similarly, in Advocacy and Resource Center v. Town of Chazy, 62 F.Supp.2d 686
(N.D.N.Y. 1999), the court declined to find that the plaintiff facility operator had
established necessity because, in part, the plaintiff offered “only conclusory allegations .
. . without any substantiation in the form of financial records demonstrating that the residence would not be economically viable without a larger (population) . . .” 62 F.Supp.2d at 689-690.
Consistent with court decisions, the City requires that applicants for reasonable
accommodation demonstrate the necessity of reasonable accommodation requests by showing therapeutic benefit to residents at the requested population levels and/or location (also referred to as “affirmatively enhancing the quality of life” of a disabled
individual or individuals), and by showing that the requested number of residents is
necessary for the financial viability of the facility.
As to current residents, this finding can be made. As this facility is a nonconforming use in a residential district and the applicant did not apply for or receive a use permit within
the time period designated by Ordinance No. 2008-05, it is currently subject to
abatement if a reasonable accommodation is not granted. If the facility is abated,
current residents will lose the opportunity to live in their current dwelling for the intended duration of their stay. Granting the accommodation allowing all current residents to complete their intended stay is necessary to allow these residents an equal opportunity
to use and enjoy their current dwelling.
As to prospective residents, at the population level requested by the applicant, this finding cannot be made. The applicant requested accommodation for 10 residents at this location, and argued that it was necessary to continue to operate in both units due
to concerns about mixing recovery and certain non-recovery uses in the same building.
Staff recognizes that control of the entire building may be in the best interest of the
resident clients, but notes a similar tenant scenario may occur in adjacent or surrounding properties that would not be in the control of the applicant. This particular area has residential units in close proximity to one another with minimal setbacks of
three feet.
Although current residents are probably benefited by staying in their current sober living environment for the duration of their intended stay, the applicant has not submitted any information that would demonstrate that prospective residents of the facility will receive
any greater therapeutic benefit from a facility with more than six (6) residents.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 9
Alternate finding - at a reduced number of permitted resident client beds for the duplex
facility, this finding can be made. If the applicant reduces the population of the facility to
six (6) residents housed within the six (6) bedrooms of the duplex building, or within three (3) bedrooms in one of the units (Unit B) of the duplex (with the other unit
inhabited by a single housekeeping unit), staff can accept the argument that granting
the accommodation is necessary to afford disabled individuals an equal opportunity to
use and enjoy a dwelling. While there are a significant number of sober living beds in
duplexes housing up to 12 resident clients in the City, there are substantially fewer opportunities within the City for individuals in recovery to live in a building with six (6) or
fewer other recovering individuals surrounded by other single housekeeping units.
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.
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 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. This facility appears to be the only residential care facility of any description on this block, or any of the adjacent blocks.
Even though current residents are probably benefited by staying in their current
sober living environment for the duration of their intended stay, the applicant has not submitted any information that would demonstrate that prospective residents of the facility will receive any greater therapeutic benefit from a facility with more
than six (6) residents.
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 to current residents: The applicant is requesting an exemption from the
requirements of NBMC Section 20.10.020, to allow the continued operation of an existing unlicensed residential care facility located in an R-2 District, where the NBMC permits such uses only in an MFR District with approval of use permit. As
a prohibited use, the facility is subject to abatement. The applicant seeks to
continue to house up to 10 disabled individuals in two units of a duplex building.
The facility currently houses residents who could be denied housing if abatement proceeds while they are still in residence at the facility.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 10
As to prospective residents: As discussed in Findings Nos. 3 and 4 below, staff
recommends that if a reasonable accommodation were to be granted, a condition
of approval be imposed limiting maximum occupancy of the facility to six (6)
resident clients in the building, either living in one unit (with the other unit occupied by a single housekeeping unit), or living in both units of the duplex. As
part of this condition of approval, the maximum occupancy of six (6) residents
would be achieved through the attrition of existing residents as they complete
their recovery program, with consolidation of the sober living facility into a single
unit, or in both units with a maximum of occupancy of six (6) residents plus one (1) onsite resident manager.
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 not provided adequate evidence or information clearly
demonstrating that the size or type of facility requested is necessary for the
facility‟s financial viability. In addition, the information that has been provided by the applicant does not clearly state why exemption from the Residential District Land Use Regulations requirements is necessary to make its facilities viable in
light of the current market for the type of services it provides. The applicant
contends that closing or relocation of the facility would be a significant financial
burden. The applicant has provided financial information regarding expenses and revenues. However, the information has not been verified by evidence of expenses, such as lease agreements and utility bills. Staff has requested
additional financial data in order to verify the reported expenses. If needed, the
applicant has requested that the Hearing Officer review the financial information
“in camera”. For this reason, staff is unable to conclude that granting the exemption to allow
the continued use in the R-2 District at the population level requested by the
applicant is necessary to make applicant‟s facility financially viable, and is unable
to analyze whether a particular number of residents is 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.
The Municipal Code authorizes the City to consider other facilities that are of a
“similar nature and operation.” Based on an inventory conducted in April 2009,
persons wishing to live in Newport Beach in an unlicensed sober living environment unaffiliated with a formal treatment program have the following housing opportunities that they can choose from:.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 11
4 b eds a t 9 00 West Balboa (operated b y L MS Reco very, with reasonable
accommodation issue d to L MS P roperties for as lo ng a s LMS Reco very
operates t he be ds i n ac cordance w ith the terms o f the r easonable accommodation); and
An undetermined number of beds at 494 and 492 Orange Street and 3309
Clay Street (operated b y Pacific S hores Recovery, reasonable
accommodation denied but subject to appeal); and
6 beds at 204 21st Street and possibly six beds at 3206-3206 ½ West Balboa
(operated b y B alboa Recovery, with rea sonable a ccommodation issue d or
pending to Balboa Recovery for as long as Balboa Recovery operates the
beds in accordance with the terns of the reasonable accommodation); and
An unlimited number of beds via the us e of any home in N ewport Beach
provided that the occupants reside there as a single housekeeping unit in
compliance with the City‟s definition of single housekeeping unit.
There are also sober living beds affiliated with a formal treatment program, Sober Living by the Sea (SLBTS), which are approved and not subject to abatement.
For individuals who wish to reside in a duplex occupied entirely by sober living
residents, 60 beds (located in both units of f ive duplexes) will re main in their
current loca tion. Twenty-four additional beds ( located i n both uni ts of t wo duplexes) are currently in operation but plan to close within 30 months, under the terms of the Zon ing Agreement between the Ci ty a nd S LBTS. S LBTS also
operates six beds in one unit of a duplex, also due to close within 30 months.
A deni al of t he r easonable accommodation w ould not deprive p rospective
residents of the opportunity of live in a residential setting with seven to twelve individuals in recovery in two u nits o f a duplex b uilding. These a lternate
residential settings also provide self-paced recovery options that allow residents
sufficient time for personal psychological growth while avoiding the use of alcohol
and other substances.
Summary: Staff has determined that Finding No. 2 c an be made if the size of the
facility were reduced to six (6) residents and one (1) full-time staff member h oused
within both units of the duplex, or in one unit of the duplex with the other unit occupied
by a single housekeeping unit. Staff recommends that if a reasonable accommodation
were to be g ranted, a c ondition o f approval be i mposed li miting th e maximum occupancy of the facility to six (6) residents and one (1) full-time staff member.
Even i f t he a pplicant pr ovides hous ing f or t he di sabled, and ev en i f t he r equested
accommodation is n ecessary, the Ci ty is not req uired t o g rant a request f or
accommodation that is n ot rea sonable. Ci ties m ay f ind a req uested 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 p rogram, often
described as undermining “the basic purpose which the requirement seeks to achieve.”
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 12
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.
This finding can be made. Allowing the facility to remain at its current location so long
as 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. Prior to its application for reasonable accommodation, there were no complaints made to the City Code Enforcement regarding the operations of this facility.
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.
Zoning District Consideration: NBMC Section 20.10.010 sets forth the basic
purposes for establishing zoning districts which 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 Section 20.10.010 of the NBMC for the R-2 District is that the district “provides areas for single-family and two-family residential land uses.”
Section 20.10.020 of the NBMC establishes those uses that are permitted, conditionally
permitted, and prohibited within the R-2 District. In accordance with Section 20.10.020
of the NBMC, unlicensed residential care facilities are not permitted in the R-2 District are only permitted in the MFR District subject to approval of a use permit.
If the facility were permitted with a requirement to limit the maximum occupancy to six
(6) residents with one (1) full-time staff member housed in both duplex units, or within
one unit of the duplex building with the other unit occupied by a single housekeeping unit, the intensity of the use would be consistent with typical residential development intensity in the R-2 District, and would be compatible with the surrounding two family
residential properties.
Building Code and Life Safety Consideration: The State Fire Marshal has made the determination that residential care occupancies with more than six residents have characteristics that require a certain degree of extra protection for the safety of the
residents. Pursuant to the provisions of the California State Building Code, facilities
providing residential care and housing for more than six residents in a building are
classified as an R-4 occupancy. This occupancy group includes buildings arranged for social rehabilitation, including alcoholism or drug abuse recovery or treatment for seven or more clients. A building housing an “R-4” occupancy would have to further comply
with building code requirements found in either the 2001 or 2007 California Building
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 13
Code. These may include, but are not limited to, vertical and horizontal fire separation
walls, fire suppression systems, alarm and detection systems, and unprotected window
openings. A complete assessment of the building has not been undertaken to
determine what alterations to the building would be necessary to bring it into compliance with requirements for R-4 occupancies.
If the occupancy of the facility was reduced to provide housing for six (6) residents and
one (1) full-time staff member within both units of the duplex, the building would be
classified as an R-3.1 occupancy. Building code requirements for R-3.1 occupancies are similar to requirements for occupancies classified as R-3. The R-3 occupancy
classification and requirements apply to single family homes and duplexes. If the
occupancy of the facility was reduced to provide housing for six (6) residents and one
(1) full-time staff member within one unit of the duplex, and the other unit was occupied
by a single housekeeping unit, the building would be classified as a mixed occupancy. If the building was classified as a mixed occupancy, it would be subject to the same requirements as an R-3.1 occupancy. The code requirements of an R-3.1 occupancy
are less stringent than an R-4 occupancy, and the existing duplex building can easily
and cost-effectively be brought into compliance with the R-3.1 code requirements. As
such, R-4 requirements would present a greater challenge for the applicant. Use Permit Consideration: Ordinance No. 2008-05 places regulations on all groups
not living as either a single housekeeping unit or designated “Residential Care Facilities,
Small Licensed” in residential districts. The basic purpose of these regulations is to
ensure (1) that the fundamental purposes of the Zoning Code can be achieved, (2) that adverse secondary impacts produced by group residential uses not living as a single housekeeping unit can be eliminated, and (3) that the adverse secondary impacts that
”Residential Care Facilities, General” and “Residential Care Facilities, Small
Unlicensed” may have on the surrounding neighborhood can be mitigated. To
accommodate the needs of the disabled for housing opportunities, Ordinance No. 2008-05 provides that non-conforming residential care facilities located in residential districts may be allowed to continue operating subject to approval of either a use permit, if
applied for within the time period specified in the ordinance, or a request for reasonable
accommodation.
Use permits are required for use classifications typically having operating characteristics requiring 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.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 14
The second stated 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, 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 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 not 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 ceased to provide disabled housing at this location, the accommodation would no longer be necessary and would also cease.
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.
Balboa Recovery, Inc. requests to continue to house up to ten (10) disabled individuals in a facility in both units of a duplex. The requested accommodation would permit a maximum of ten (10) disabled individuals in recovery with one
resident manager in each of the units, all of which are not living as a single
housekeeping unit, to live on a block of single housekeeping units. As a
condition of approval, staff recommends that the facility be required to limit the maximum occupancy to six residents and one full-time staff member in one unit of the duplex building, or in both units.
With the reduction in resident population as required by this condition of
approval, the intensity of the use would be consistent with the intensity of use that would be produced by single housekeeping units in two-family residential districts, and would be compatible with the surrounding two-family residential
properties. Staff believes approval of the reasonable accommodation with
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 15
appropriate conditions of approval to allow the facility to remain in its current
location in the R-2 District would not undermine the basic purpose of this portion
of the City‟s zoning program.
B. Whether the accommodation would result in a substantial increase in
traffic or insufficient parking.
Parking – The dwelling unit occupied by the facility has two enclosed garage
parking spaces. The Zoning Code requires one on-site parking space per three residential care facility beds. With twelve beds, the required parking for the
facility would be 4 spaces. As such, the facility currently does not meet the
required parking.
Some residents are permitted to have personal vehicles while residing at the
facility. The facility can only provide parking for two vehicles. Of the two parking spaces available, one is reserved for he resident manager. The remaining space would be assigned by the resident manager.
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 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. Based on these
standards, a duplex would generate approximately 13.44 average daily trips,
whereas an ten-bed residential care facility with an two additional resident manager beds would generate approximately 32.88 average daily trips. If the population were limited to six residents and one on-site resident manager in one
unit of the duplex, and the other unit was occupied by a single housekeeping
unit, a total of 25.9 trips would be generated. Six (6) resident clients and one (1)
onsite resident manager occupying both units of a duplex would generate 19.18 average daily trips.
Due to the fact that the applicant limits and manages the use of personal vehicles
by residents at the facility, if the reasonable accommodation were granted with
the condition of approval limiting the maximum number of residents to six (6) resident clients and one (1) resident house manager, the number of trips generated would not be significantly in excess of trips generated by that of a
duplex. Approval of the request for reasonable accommodation would include
conditions that restrict use of residents‟ personal vehicles while living at the
facility, reducing impacts on parking to an insubstantial level. C. Whether granting the 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
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 16
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 with the recommended conditions of approval
enables the City to apply appropriate reasonable regulations on the facility, consistent with 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 this block or any of the immediately adjacent blocks. Thus, the granting of the reasonable accommodation with a condition of approval limiting the maximum occupancy of the facility to six residents and one full-time
staff member would not create an institutionalized environment.
Summary: Staff believes conditions could be applied to the use that will allow the accommodation to be granted consistent with the basic purposes of NBMC Sections 20.10.010, 20.10.020, and Chapter 20.91A. The recommended conditions of approval
are described below.
1. That the facility agree to a bed cap of no more than six resident clients plus one on-site resident manager, who shall be a qualified recovery specialist; 2. If the applicant obtains a license from ADP to operate a facility for six or less
clients in one of the duplex units, the other unit may only be used to provide
housing for a single housekeeping unit; and
3. Changing the quiet hours to between 10:00 p.m. and 8:00 a.m.; 4. 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.
Essentially, these conditions would require that the facility comply with the development and operational standards required of similar facilities receiving a use permit under NBMC Chapter 20.91A. Staff believes that with these conditions, the findings required
by NMBC Section 20.91A.060 for issuance of a use permit could be made with regard
to this facility. With conditions of approval, the use could conform to all applicable
provisions of Section 20.91A.050. Staff has determined that, as conditioned, the use would be compatible with the
character of the surrounding neighborhood, and the continued maintenance of the use
would not contribute to changing the residential character of the neighborhood or create
an overconcentration of residential care uses in the vicinity. In considering whether the residential character of the neighborhood would be changed, staff has considered that the American Planning Association standard of one or two such uses per block is not
exceeded by allowing the continued maintenance of this facility as there are no other
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 17
residential care uses on this block, or any of the immediately adjacent blocks. There
has been no evidence presented to staff that indicates that there have been any issues
with delivery of goods that adversely affect the peace and quiet of neighboring
properties, or issues of trash generated in excess of surrounding properties.
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.
CONCLUSION
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 findings can be made. As to prospective
residents at the population level proposed by the applicant, all five findings cannot be
made.
However, staff believes that there is an alternative that could meet the findings of Section
20.98.025(B) of the NBMC. This alternative would limit the facility to a total bed count for
resident clients to six beds. In addition, staff believes the facility would need to maintain
an on-site resident manager who is a qualified recovery specialist. This recommended bed
count may be split between the two units or confined to one unit. This alternative density and intensity of use would be consistent with the density typically produced by other
occupants of two-family residential districts. Permitting a facility with no more than six
beds to remain in its current location in the R-2 District would not undermine the basic
purpose of this portion of the City‟s zoning program
In addition, there would be conditions placed on the accommodation that would result in
the facility complying with the development and operational standards required of
similar facilities receiving a use permit under NBMC Chapter 20.91A. Staff believes that
with these conditions, the findings of which NMBC Section 20.91A.060 requires for
issuance of a use permit could be made with regard to this facility. With conditions of approval, the use would conform to all applicable provisions of Section 20.91A.050, the building provides sufficient on-site parking for the use and traffic impacts are similar to
those generated by surrounding single-family and two-family uses. The property and
existing structure is physically suited to accommodate the use. If the proposed
conditions are approved and followed, staff believes that Finding No. 4 can be made and that granting the requested accommodation will not undermine the basic purpose
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 18
which the zoning program seeks to achieve, and will not result in a fundamental
alteration in the nature of the City‟s zoning program. Staff also believes that the
alternative accommodation, with conditions, would result in a facility that is compatible
with the character of the surrounding neighborhood, and that continued maintenance of the conditioned use would not contribute to changing the residential character of the
neighborhood or create an overconcentration of residential care uses in the vicinity.
However, in discussing staff‟s initial recommendation with the operator, the operator
asserted that he cannot generate enough income at 124 30th Street with six persons to meet his expenses. As such, staff proposed the following:
1. Allow Balboa Recovery to use the facility at 124 30th Street at its current population
level for at most 12 more months, under specific conditions;
2. During the 12-month period, Balboa Recovery should seek out another building with a lower rent that could accommodate up to six (6) clients (plus one (1) resident manager) in the entire building;
3. Balboa Recovery, consistent with Ordinance 2008-05, may apply for reasonable
accommodation to allow the new facility to begin operations under specific
conditions; and 4. The City will perform an analysis of and set a hearing for Reasonable Accommodation at this new facility when Balboa Recovery identifies and requests it,
and shall consider the location of the new facility, the building size, the proximity to
other uses, and related information.
Mr. Cullen of Balboa Recovery has tentatively agreed to this proposal.
Staff recommends that the Hearing Officer:
1. Deny the request for Reasonable Accommodation No. 2009-002 based on the staff recommendation, which shall include an up to 12-month abatement period provided that the operation comply during this abatement period with the
conditions proposed as an exhibit to this report, and
2. Direct staff to prepare a Resolution of Denial reflective of Recommendation #1 to be brought back to the Hearing Officer at a date certain.
Environmental Review
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.
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 19
Public Notice
Notice of this hearing was published in the Daily Pilot, 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 website.
Prepared by: Submitted by:
_________________________
_________________________ Gerald S. Gilbert Contract Planner Dave Kiff Assistant City Manager
EXHIBITS 1. Proposed Conditions during Abatement Period
2. Reasonable Accommodation Application submitted January 21, 2009
3. Staff Request for Additional Information dated April 7, 2009
4. Supplemental Information Submitted by Applicant 5. Floor Plan 6. April 30, 2009 Staff Report with Correspondence from Residents
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 20
EXHIBIT A
(PROPOSED) CONDITIONS APPLICABLE DURING ABATEMENT PERIOD
REASONABLE ACCOMMODATION NO. 2009-003 BALBOA RECOVERY INC. at 3206- 3206 ½ West Balboa
1. Abatement Period. This use shall abate no later than 12 months following the
adoption of a resolution denying reasonable accommodation.
2. Occupancy Level. The operator Balboa Recovery Inc. hereinafter referred to
as “Operator,” shall limit occupancy of the building to 10 client beds and two on-
site resident managers, who shall be a qualified recovery specialist. No more
than 10 persons in recovery may reside in the building.
3. Staffing. Operator shall have one qualified manager on-site at all time (24 hours a day, seven days a week) to appropriately and responsibly manage the
facility.
4. Governmental Referrals. Operator shall not provide any services to any client or house any client who has been referred or caused to be referred to this facility by any governmental agency, including but not limited to probationers or
parolees.
5. Assembly Uses. Assembly uses are prohibited, except those that are limited solely to client residents of the facility and facility staff.
6. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the City of Newport Beach‟s
Municipal Code, all other laws and best industry standards and practices. 7. Trash. Operator shall abide by the City‟s regulations regarding trash disposal
including providing the proper amount of trash cans for the property‟s use (so
that cans do not overflow), placing the cans out no earlier than 7:00 pm the
evening prior to collection, and placing the cans back in the side yard (or other contained area) no later than 6:00 pm the day of collection.
8. Smoking & Cigarette Litter. Per NBMC Section 2091A.050(A), no clients,
guests, or any other users of the subject property may smoke in an area from
which the secondhand smoke may be detected on any parcel other than the parcel upon which the use is located. Balboa Recovery Inc. will enforce house rules against litter, including allowing clients, staff, or residents from littering
cigarette butts on the ground, sidewalk, gutter or street.
9. Vehicles, Parking & Garages. This facility may have a maximum of three vehicles associated with its use. The Operator shall keep the two (2) designated garage parking spaces at the facility open and available for parking
for staff, and resident clients at all times. One space shall be designated for use
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 21
by the on-site resident manager. The second space shall be designated for use
by one client resident. At most one other client in the Facility may have a
vehicle and park on the street in a legally-designated parking spot. Client move-
in and move-out shall be accomplished in such a manner that traffic on area streets is not blocked, nor can area driveways or alleys be blocked.
10. Transportation. No transportation services shall be provided by the facility
operator.
11. Quiet Hours. The on-site facility manager shall maintain “Quiet Hours”
between 10:00 pm to 8:00 am, daily, where persons on the street or on adjacent
properties cannot hear any noise (including music, TV‟s, voices) from the facility
except in an emergency.
12. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City
upon the property owner and operator.
13. Deliveries. Any deliveries of business products and other packages and goods to the facility during weekdays shall be made between the hours of 9:00 am to
5:00 pm.
14. Contact Information. Operator shall provide area residents and the City with a 24/7 contact name, phone number and e-mail address to assist residents and the City with problems or concerns arising from the facility. E-mails or
messages left for the Operator‟s designated contact shall be returned in prompt
manner within the next 24-hour period.
15. Building and Zoning. Operator recognizes that the subject property has specific setbacks from the side yards, front yard, and/or back yard per the City‟s
Building and Zoning Codes. Operator will keep these setbacks clear of
obstruction, including building obstruction. The orderly storage of trashcans is
acceptable in setbacks. 16. Facility Nuisances. The subject property shall not be unsafe, unsightly or
poorly maintained. If Operator receives a nuisance violation from the City in
regards to any of these issues, Operator shall correct the violation with seven
days or contact the City directly to negotiate a mutually agreeable timeline. 17. Beaches and Other Common Gathering Areas. Operator‟s use of the
beaches for meetings, prayer, conversation, or other gatherings shall show due
respect to non-resident visitors, residents, and other beachgoers, thus allowing
them to take full enjoyment of the beach. Operator shall not conduct business on the beach (per NBMC 10.08.030)
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 22
18. Services to Facility’s Clients or Residents. Operator will use industry‟s best
practices to ensure that the facility‟s clients or residents stay in recovery
(including scheduled substance testing, random substance testing, and
encouragement of 12-Step meetings or counseling). Operator has represented that the facility operates with an average client stay of 300-days. Operator shall
use bet efforts to maintain, at a minimum, average client stay of 300-days.
Operator shall ensure that any client or resident removed from Operator‟s
program or facility has the resources necessary to return home.
19. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance of this reasonable accommodation shall not
constitute a waiver of the requirements of any federal, state or local law,
including the requirements of the California Building Code and Fire Code.
20. Compliance with Conditions. Operator shall comply with these conditions during the 12-month abatement period.
21. Rights to Reasonable Accommodation. Applicant remains entitled to
request Reasonable Accommodation to the abatement schedule described herein if abatement will result in persons with disabilities being denied an opportunity to housing.
# # #
Reasonable Accommodation No. 2009-002 May 20, 2009
Page 23
Mr. Dave Kiff, Assistant City manager
City of Newport Reach
3300 Newport Blvd.
N e\'Vport Beach, CA
Dear Mr. Kiff:
322 W. Fern Drive
Fullerton, CA 92832
April 20, 200Q
We have received the notice of a public healing on Reasonable Accommodation Penni! No. RA2009·002
for property at 124 24th Street
I\s ncarhy propcrty owners, we wish to cxpress our opposition to the proposed usc at this address.
According to the notice. the use currently exists illegally and this request is to make an illegal use legal
through a process that does not change the zoning designation but in effect does change the permitted
uses in the existing R-2 zone.
Normally. a change in zoning designation or in permitted uses in a zone requires a more extensive
healing process, including the Planning Commission and the City CoundL We object to this abbreviated
process as well as the precedent that such an action will establish. Once this so called accommodation is
given to one party, how can the next application be denied? How can the City of Newport Beach allow the
negation of its existing codes so easily, and how can there he a justification for rewarding the violation of
the code'l
If there are areas in the city where such uses are pennitted, then that is where they should be located. In
this case, the R-2 zone is not one of them and there should be no accommodations given to reward
someone who is asking for permission to violate the city ordinance.
One of the findings for approving a Reasonable Accommodation is that the approval ~is necessary to
provide one or more individuals with-a disability an equal opportunity to use and enjoy a dwelling." The
operative phrase here is "equal opportunity,~ No one, with or withuut <:I disability, b entitled tu live <:It the
beach or anywhere else, if the condition of using and enjoying a dwelling violates the city codes. Those
with this particular disability are given equal opportunity to live in a sober living facility in MFR districts
along wilh those with no disabilities. There is no justification to give the requested speciallreatment and
privilege in violation of the R·2 zone permitted llSes.
We respectfully request that this appliC'dtion be denied.
Sincerely.
hb,.J11<M .~M.~
Mr. & Mrs. Terry J...t<:livin
Exhibit No. 1
Reasonable Accommodation Application
Submitted January 21, 2009
CITY OF NEWPORT BEACH
Supplemental Information
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?
Yes. Provider.
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?
Provider -No.
Housed Individuals -Yes, under ADA standards.
3. From which specific Zoning Code provisions, policies or practices are you seeking an
exception or modification?
NBMC 20.62.090 & NBMC 2091 A.020.
4. Please explain wby the specific exception or modification requested is necessary to
provide onc or morc individuals with a disability an equal opportunity to use and enjoy the
residence. Please provide documentation, if any, to .support your explanation.
No treatment services are provided; Balboa Recovery provides sober living housing
for Ocean Recovery alumni.
5. Please explain why the requested accommodation will affinnatively enhance the quaUty
ofHfe of the individual with a disability. Please provide documentation, if any, to support your
explanation.
The individuals' Uves are enhanced by proximity of Ocean Recovery, the Newport
Alano Club, and all the amenities of living near the beach. Most of the people we house do
not have transportation other than bicycle and by foot whicb enhances the need for
closeness to both Ocean Recovery and tbe A1ano Club. Slnc. ALL the residents are alumol
of Ocean Recovery, they feel more comfortable and safe close to the facility.
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
docum entation, if any, to support your explanation.
They will no longer be able to reside In tbe same level of comfort and safety as they
do DOW in Newport Beach. .
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.
We have a lease for this property. The cost of setting up. home Is bigb (lease,
udUdes, deposit, furniture). Closing or moving our homes would be a finaneial burden,
.].
which, in the current economic climate, would be very ·difficult to overcome. More
important than the economic concerns of our business is the well-being of our residents.
Please see 5, above.
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, ifany, to support your explanation.
To our knowledge, the few facilities which have applied for a permit on Balboa
Peninsula are aU licensed treatment facilities. Ocean Recovery will not refer to other
homes, which will put a huge burden on those who have completed the program at Ocean
Recovery. Of our three homes, one .is exclusively for men while the other two are
exclusively for women. There .are no other "sober living" homes for women on the
peninsula.
9. Please add any other infonnation that may be helpful to applicant to enable the City to
determine whether the findings set forth in Chapter 20.98 can be made. (Use additional pages if
necessary,)
Only al umni of Ocean Recovery reside in our homes, Ocean Recovery does not refer
to any other facilities. We have been in business since 2005, without any complaints from
neighbors or the City of Newport Beach. NODe of our homes are located near churches or
schools. All surrounding buildings are rental properties or commercial businesses
(Albertsons, Spaghetti Factory, 7-11). There is no negative impact on parking; we do not
exceed the number of parking spaces on site. All residents obey a curfew and a long list of
rules and conditions (please see attached admissions agreement). All homes are clean,
organized and quiet.
Balboa Recovery provides safe, structured, gender-specific housing for those in
recovery from alcoholism. Without this service, Ocean Recovery alumni will be forced to
find housing out of the Irea or on their own. It will not be as structured, safe or
comfortable. T his will put our residents at risk. The longer a person stays in a safe, sober,
structured environment the greater bis or ber chance at recovery.
When treatment is completed, young adults often require more practice applying
the new skiDs they have recently acquired. A large percentage of clients are students who
take time off for treatment and return to school when treatment is completed. There is
often a gap of several months between completion of treatment and tbe start of a 'new
semester. Balboa Recovery helps to bridge that gap. If an individual plans on staying in
the area for anything less tban a year, problems arise. To rent an apartment requires a
lease typicaUy of a year commitment or perhaps the payment of astronomical weekly
summer rates. There are all the additional costs of making an apartment a livable home.
We have found the best locations possible for our residents. The homes are aU set up with
everything the client needs to move in. This makes the transi·tion between treatment and
"sober living" as smooth as possible.
-2-
PA2009·012 for RA2009·002
124 30TH STREET
Balboa Recovery COpy
GROUP RESIDENTIAL USE
USE PERMIT APPLICA TlON
CITY of NEWPORT BEACH
Planning Department
Newport Beach City Hall
3300 Newport Boulevard
Newport Beach, California 92663
949-644-3200 (phone)
949-644-3226 (fax)
www.city.newport-beach.ca.us
1
I -Background
CITY OF NEWPORT BEACH
GROUP RESIDENTIAL
USE PERMIT INFORMATION AND APPLICATION
(February 2008)
On January 22, 2008, the Newport Beach City Council approved Ordinance 2008-05. Among other findings, the
Ordinance states that:
17. The City desires to maintain zoning provisions benefiting disabled persons by allowing disabled
persons to live in residential districts in residential care facilities, while forbidding all other group homes in
residential districts, but desires to ensure that the uses are consistent with the residential character of
neighborhoods and do not recreate an institutional environment that would defeat the purpose of
community-based care. The City further desires to ensure that unlicensed residential care facilities
purporting to serve the disabled are operating in compliance with City, state, and federal laws and
regulations. To achieve these purposes and to provide disabled persons with an equal opportunity to
use and enjoy a dwelling in the City's residential zoning districts, and in recognition of the services that
may be required by the disabled, the ... ordinance allows residential care facilities, general and small
unlicensed, to be located in the MFR zone with a use permit, while prohibiting all other group residential
uses. Residential care facilities, small unlicensed, continue to be permitted in all residential districts, as
required by State law.
18. To ensure that the City complies with federal and state law, the ... ordinance contains standards and
procedures for granting a reasonable accommodation (emphasis added) to its zoning and land use
regulations, policies, and procedures when needed to provide an individual with a disability an equal
opportunity to use and enjoy a dwelling, where such an accommodation does not cause an undue
financial or administrative burden or does not result in a fundamental alteration in the nature of a City's
zoning program, as those terms are defined in fair housing laws and interpretive case law.
II -Requirements for Use Permit
Effective February 20, 2008, Ordinance #2008-05 to the Newport Beach Municipal Code (NBMC) requires Use
Permits for most group residential uses, except for licensed treatment homes (licensed by the California
Department of Alcohol and Drug Programs or KADP-) that serve six (6) or fewer persons and that are not operated
integrally with other facilities. Please seewww.city.newport·beach.ca .usthen "Group Residential Uses~ for more
information about the Use Permit requirement. NBMC Title 20.91A is on the City's website as well, under "City
Council-then "City Ch arter and Municipal Code."
According to Newport Beach Ordinance 2008.05, your facility:
• Requires a Use Permit if you are a group home or similar use that has legally been in operation up to and
including the date of February 20, 2008 (a Category 1 Facility). Operators of Category 1 facilities must apply
for a Use Permit no later than May 20, 2008. NOTE: If your use has been operating without required
approvals andlor in a manner not meeting regulations (such as offering treatment without an ADP License,
opening or expanding during the City's moratorium period [April 24, 2007 through February 20, 2008], or
operating without the City's Federal Exception Permit [FEP) when one was required for your use), you may be
ineligible to apply for a Use Permit under Ordinance 2008-05.
• Requires a Use Permit if you are an individual, firm, or other entity proposing to open and operate a new group
home or similar use on or after February 20, 2008 (a Category 2 Facility). Category 2 facility operators must
apply for a Use Permit and receive a permit prior to opening your facility.
• Is exempt from the Use Permit requirement if your facility is a stand· alone, State-licensed facility serving six (6)
or fewer clients (a Category 3 Facility).
2
NOTE: ORDINANCE 2008-05 ALLOWS PERSONS OR FIRMS, ON BEHALF OF
PERSONS WITH DISABILITIES, TO REQUEST REASONABLE ACCOMMODATION
FROM THE USE PERMIT REQUIREMENT AND FROM OTHER ASPECTS OF
ORDINANCE 2008-05. NBMC CHAPTER 20.98 CONTAINS MORE INFORMATION.
In addition to a Use Permit, you may need a Treatment License from ADP, a Community Care License, or a
Congregate Living Health Facility license from the California Department of Social Services (OSS) or similar
agencies. Please contact ADP or DSS via www.ca.gov.
II -Procedure for Obtaining a Use Permit
Here is the procedure for obtaining a Use Permit for a group residential use:
Application. Use Permit applicants are required to:
• Submit this written application in a complete form, including all attachments;
• Comply with current zoning as it relates to the facility proposed for this use;
• Obtain a valid and appropriate fire clearance from the Newport Beach Fire Marshal. This process may
require a comprehensive code analysis by a qualified architect. Decisions by the Fire Marshal may be
appealed to the Newport Beach Building and Fire Board of Appeals.
• If needed, have the facility pass an inspection by City staff in terms of the facility's safety and
compliance with local zoning.
Hearing. V\lhen the City receives a completed application, the City will review it and prepare the Application for
a public hearing before an impartial Hearing Officer. The Hearing Officer may conditionally approve or deny a
use permit at this hearing. Prior to the hearing, the City will mail or deliver notice of the public hearing for the
use permit to owners and occupants of property within 300' of the proposed use ten (10) business days prior to
a public hearing on the use. Decisions of the Hearing Officer may be appealed to the City Council (NBMC
§20.91A.040).
Standards. During the hearing, the applicant, the City and its legal counsel, and area residents may speak
about the proposed Use Permit. To issue a Use Permit, the Hearing Officer must find that the use will adhere
to the following standards applicable to the use:
• No secondhand smoke can be detectable outside of the property.
Operations must comply with state law, local law, the submitted application, including any modifications to the
application required by the Use Permit.
• An applicant may not provide services that require a State or other license if the applicant does not have a
license for those same services.
• There shall not be more than two (2) persons per bedroom plus one (1) additional resident in a building. If an
applicant wants to put more than 2 persons in one or more bedrooms, the applicant may request greater
occupancy. The Hearing Officer may set different occupancy limits based on structure characteristics, traffic
and parking impacts, and the health, safety, and welfare of the persons residing in the facility and
neighborhood.
Where certification is available from a responsible entity other than the California ADP's licensing program,
applicants must get that certification. Certification by the Orange County Sheriffs program is required;
certification offered by the Orange County Sober living Coalition is recommended.
• Every individual or entity involved in the facility's operation or ownership shall be disclosed to the City.
• No owner or manager shall have any demonstrated pattern or practice of operating similar facilities in violation
of law whether in or outside of Newport Beach.
Findings. In addition to the standards described above the Hearing Officer must make the following findings if
he or she is to issue a Use Permit:
• The project has adequate parking on-site.
• Traffic and transportation impacts have been mitigated to a level of inSignificance.
3
• Structures are suitable for the use.
• The use will be compatible with the character of the neighborhood and will not create an over-concentration of
residential care uses nearby. To make or sustain these findings, the Hearing Officer shall consider (as
appropriate) the following factors:
o How close the proposed use is to schools, pari<:s, other group homes, alcoholic beverage outlets and any other uses
which could be affected by or affect the operation of the subject use; and
o Whether the exislence of non-standard lots and other property characteristics within a Nonstandard Subdivision Area
(see Attachment _ to Ordinance 2008-05) make such a use inappropriate; and
o Whether the Hearing Officer should deem that the American Planning Association's (APA's) standard of permitting
one or two group uses per block would be appropriate in this case OR whether a greater degree of separation is
appropriate (NBMe §20.91A.060.D.1-3). Ordinance 2008-05 describes facts in Newport Beach relating to blocks,
which include:
Blocks in the Nonstandard Subdivision Area can be as short as 300'.
Blocks in Newport Beach outside of the Area can be as long as 1,422'.
• The calculable average block length in Newport Beach outside of the Area is 711 '.
• The calculable median block length in Newport Beach outside of the Area is 617'.
If the Hearing Officer applies the APA standard, he or she is directed to do SQ in a manner that eliminates the
differences in block lengths and be guided by the median block lengths in standard subdivision areas of the city, even
if the proposed facility is within the Nonstandard Subdivision Area. The Hearing Officer retains the discretion to apply
ANY degree of separation of uses which he or she deems appropriate.
That vans, shuttles, or buses for transportation of clients will not generate more traffic than normally generated
by residential activities nearby.
• That the operations do not have goods delivery, service deliveries ,or commercial trash collection during hours
that would cause an adverse affect to the peace and quiet of neighboring properties.
III -This Document
This document details the Use Permit Application in three sections:
• Section A summarizes briefly the application forms which must be completed and submitted to the City.
• Section B provides a checklist for the documents and forms that you must secure and submit as a part of
the Use Permit application.
• Section C includes the forms themselves.
IV -Where to Find More Information
To assist applicants in supplying the detailed information needed for the Use Permit process, a copy of City of
Newport Beach Ordinance #2008-05 is available online at www.citv .newport-beach.ca.us then ~Group
Residential Uses.·
v -Where to Send a Completed Application
Please do not bind or place the application in a protective covering. Applicants should retain a copy of
completed materials for their records. Please mail or deliver the completed application to:
VI -Public Information
City of Newport Beach -City Manager's Office
GROUP RESIDENTIAL USE PERMIT APPLICATION
Newport Beach City Hall
3300 Newport Boulevard
Newport Beach. California 92663
Information provided by the applicant(s) for a Use Permit will be made available for public review unless
otherwise exempted by law.
4
VII-Fees
The City may charge a fee for the review of this application up to but not beyond the cost of processing the
application. Please consult the City's Planning Department for the type of fee and the estimated amount of fee
you can expect to pay associated with this Use Permit application.
VIII-Business Tax Certificate (aka Business License)
All persons operating a group home or similar use in Newport Beach, except for those persons operating a
stand-alone ADP-licensed facility housing 6 or fewer persons, must apply to the City's Revenue Division and
receive a City Business Tax Certificate to begin and/or to continue operations. For more information, please
see http://www.city."ewport-beach.ca.us/revenue/revenue.htm.
IX -Use Permit Application Timelines
Here are the timelines and requirements for application submittals:
1 -Category 1 facilities must file a compleled applicalion by May 20, 2008. If you do nol file a complele
applicalion by May 20, 2008, your use is subjecllo abalemenl by Ihe EARLIEST to occur of the following
crileria (NBMC §20.62.090.A.2):
• By February 20, 2009; or
• The date an operator's lease expires to use the property. This is only applicable if the lease was entered
inlo prior 10 December 7, 2007 (NBMC §20.62.090.A.2.a.ii); or
• The date that an operator's State license expires.
Applicants may request reasonable accommodation from the abatement periods described here. See
NBMC Chapter 20 .98 for more information.
2 -Category 2 facilities must file a completed application and must receive a Use Permit prior to operation.
Please note: Filing an incomplete application(s) will delay the Use Permit review process.
5
SECTION A
Application Forms
Section A -These are the forms to be submitted to the City to initiate the Use Permit revi ew process .
1. Application Form (Form 100) This form is the central document by which the City will base its decision
on whether to grant a Use Permit to your proposed use. It must be filled out accurately and completely,
including attachments and signature blocks.
2. Administrator and/or Director Information (Fo rm 150> This form identifies the administrat or andlor
director of the facil ity applying for a use permit.
3. Administrative Organization tnformation (Forms 200C or 200P. and . if 200C. Form 200D) These
forms identify the entity applying for a Use Permit, whether that be a Corporation, Partnership, Sale
Proprietorship, or other association. When applicable, Form 2000 is a delegation of authority form for a
corporate entity.
4. Evidence of Capacity and Need. Per NBMC §20.91A.030 (E), applicants that have more than one
facility must provide evidence of the need by residents of Newport Beach for th is capacity based on
published sources.
5. Location Map. The Location Map (required by NBMC §20.91A.030.D) is intended to show the location
of the proposed use plus all known similar uses within a three-block radius.
6. Site Plan. This diagram (required in part by NBMC §20.91A.030.t) is intended to show the facility's
building footprint and property lines. Include property lines and building footprints on immediately
adjacent parcels.
7. Building Diagram and Fl oor Plan. This diagram (required in part by NBMC §20.91A.030.t) is intended
to show all building(s) to be occupied, including a floor plan of all rooms intended for residents' use. It
must identify the number of residents per bedroom and the location and the number of beds for aU
residents, including the location of beds for infants and other non-ambulatory persons. Any rooms
identified as bedrooms must comply with the NBMC's definition of what constitutes a bedroom (NBMC
§20.03.030), and that room must be consistent with permitted floor plans on file with the City of
Newport Beach's Building Department.
8. Route Map (for Transij Purposes). The Route Map is intended to show transit and travel routes that will
be used to transport clients off-site, showing destinations of travel and approximate times of departure
and return.
9. Disposal Plan for Medical and/or Bia-Waste. Applicants who will be disposing medical waste or other
bio-waste must provide a Disposal Plan showing how and where these wastes are disposed of
(required by NBMC §20.91A.030.t).
10. Facility Staffing Data (Form 400} -This form identifies all facility personnel, including back-up persons
and volunteers providing services.
11 . Weekly Activities Schedule (Form 500) This form indicates the weekly schedule for specific activities
at the property .
12. Approved Fire Clearance from the Newport Beach Fire Marshal. State ADP Form 850 is appropriate
for this purpose. Form 850 is attached to this document.
13. A true and correct copy of your State License Application (if applicable) Please provide a current copy
of your State (ADP, DSS, or other) License application, if your facility is a State-licensed facility or if a
State license is pending. If your facility does not require a State license, this section is not applicable.
6
SECTION B
Applicant Checklist
o 1. Form 100 (standard Group Residential Use Permit Application)
o 2. Form 150 (administrator or director information)
0 3. Either Form 200C or Form 200P (Corporation or Proprietorship)
0 a. If Form 200C, Delegation Form (Form 200D)
0 4. Evidence of Capacity and Need
0 5. Location Ma p
0 6. Site Plan
0 7. Building DiagramiFloor Plan(s)
0 B. Route Map (Transit and More)
0 9. Disposal Plan for Medical & Bia-Waste
0 10. Facility Staffing Data (Form 400)
0 11 . Weekly Activities Schedule (Form 500)
o 12. Approved Fire Clearance from the Newport Beach Fire Marshal
o 13. Copy of ADP Licensure Application (if applicable)
o 14. Use Permit Processing Fees
o 15. Certification Documents (OCS D, OC Sober Living Coalition)
7
This side for Internal Use On Iv
YES NO INC NIA
.
SECTION C
Forms
8
3. SIMILAR USES
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 own other group residential uses in Newport Beach?
181 Yes DNo
If yes, cite address(es) of facility(ies) (attach more pages if necessary):
~MM~"":
1234 Main Street Newport Beach Unlicensed ·Sober living" 7
Site Address Type of Use Bed Capacity
3206 W. Balboa NB CA 92683 Unlicensed Sober Living 10
Site Address Type of Use Bed Capacity
204 21 ST SI NB CA 92663 Unlicensed Sober Liying 9
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 Capacity
Site Address Type of Use Bed Capacity
Site Address Type of Use Bed Capacity
10
8 . 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 Beach? Please cite address(es) of facility(ies) (attach more pages if necessary):
EMMPLI;'
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 Capacity
Site Address Type of Use Bed Capacity
c . Evidence of Need for this Extent of Use. Per NBMC §20.91A.030 (E), please attach Evidence of Capacity
and Need by residents of Newport Beach for this capacity based on published sources.
4. YOUR fiRM'S HISTORIC USES
Per the requirements of NBMC §20.91A.030.G & H, in the past five (5) years, have you or your firm or any entity or
person affiliated with you or your firm operated, managed, or owned other group residential uses In California?
DYes 121 No
If yes, show the site address(es) of each facility(ies) and show whether the facility(ies) have ever been in violation of
Federal, State or local law (attach additional pages if necessary):
EXAMPLE:
1234 Main Street Santa Barbara ApP-licensed Facility 8
11
Street Address, City Type of Use Bed Capacity
Has this facility or your operations at this facitity , ever been in violation of State or local law?
DYes 181 No
If Yes, please explain: ________________________________ _
Facility #1
204 2111 51 Newport Beach Group Residential 9
Street Address, C ty Type of Use Bed Capacity
Has this facility or your operations at this facility, ever been in violation of State or local law?
DYes 181 No
If Yes, please exp ain:
Facility #2
3206 W. Balboa Newport Beach Group Residential 1Q
Street Address , City Type of Use Bed Capacity
Has this facitity or your operations at this facility, ever been in violation of State or local law?
DYes 181 No
If Yes, please explain:
Facility #3
124 301h St Newport Beach Group Residential 12
Street Address, City Type of Use Bed Capacity
Has this facility or your operations at this facility, ever been in violation of State or local law?
DYes b1l No
If Yes, please explain: ________________________________ _
Facility #4
N/A
Street Address, City Type of Use Bed Capacity
Has this facility or your operations at this facility, ever been in violation of State or local Jaw?
DYes DNo
12
If Yes, please explain: ________________________________ _
5. LOCATION MAP AND SIMILAR USES
Provide a Location Map showing the location of the proposed use plus all known conditional uses within a three-
block radius. Include the property addresses of the proposed use and known conditional uses. Please consult the
Newport Beach Planning Department (949-644-3225) for nearby conditional uses.
6. SITE PLAN
Provide a Site Plan that shows the facility's building footprint and property lines. Include property lines and
building footprints on immediately adjacent parcels. Note the uses (i.e. single family use, group residential use, or
other) on adjacent parcels.
7. LICENSE AND PE RM IT HISTORY OF APPLICANT
A. Per NBMC §20.91A.030(H), please summarize the license and permit history of each facility applicant or
operator has managed, owned, or operated in the State of California within the last five (5) years which require
either a license or a permit by the State or by a locality (attach additional sheets if necessary): .
Balboa Recovery
Name of Facility
124 30th St
(Facility Address)
204 21 't St
(Facility Address)
3206 W. Balboa
(Facility Address)
Newport Beach
(City)
Newport Beach
(City)
Newport Beach
(City)
92663
(Zip)
92663
(Zip)
92663
(Zip)
Please describe the nature of the license or use permit, the issuing agency, its reference number (if applicable), and
any enforcement actions by any agency against the license or use permit:
See City of Newport Beach Business Tax Certificate attached
B. Has the applicant ever voluntarily surrendered, had a denial, suspension, or revocation of a residential iicense
for an alcoholism or drug abuse recovery or treatment facility or a facility licensed by the California Department of
Alcohol and Drug Programs (ADP) or the California Department of Social Services -Community Care Licensing?
DYes 181 No
If yes, the date license was surrendered, denied, suspended, or revoked: ______________ _
Reason for revocation, surrender, denial, or suspension: ___ _
13
C. Has the applicant ever voluntarily surrendered, had a denial, suspension, or revocation of a Use Permit or
similar permit for a group residential use in this community or another community?
DYes 181 No
If yes, the date Use Permit (or similar) was surrendered, denied, suspended, or revoked:
Reason for revocation, surrender, denial, or suspension: ___ _
D. Has the applicant ever voluntarily surrendered, had a denial , suspension or revocation of a certification by any
public or private agency other than ADP or the California Department of Social Services-Community Care Licensing
for a group residential use in this community or another community?
D Yes 181 No
If yes, the date Use Permit (or similar) was surrendered , denied, suspended, or revoked: ________ _
Reason for revocation, surrender, denial, or suspension: ___ _
8. NATURE ANP CHARACTERISTICS OF PROPOSED USE
Per NBMC §20.91 A.030(A-D), please provide the following information about each proposed facility (attach
additi onal sheets if necessary). The components of this Section 8 (and other sections) comprise the Operations
and Management Plan and Rules of Conduct envisioned by NBMe §20.91A.050.B:
A. TYPE dF ALCOHOL ANDIOR OTHER DRUG RECOVERY OR TREATMENT SERVICES PROVIDED (for
ADP-licensed facilities only --check all that apply):
B.
o Non-Medical Detoxification D Group Sessions
o One-an-One Sessions D Educational Sessions
D Recovery or Treatment Plan ning C8l Other: DHllIo'"'us"'iwngiL. ___________ _
NUMBERS AND TYPES OF FACILITY USERS & STAFF:
TOTAL OCCUPANCY OF FACILITY (This is the maximum number of individuals who live at the facility and
are approved by the fire safety inspector.) These individuals include the residents receiving recovery,
treatment or detoxification services, children of the residents, and staff. Staff includes individuals who work
for the applicant in exchange for either monetary or in-kind compensation (e.g., room and board). Total
occupancy cannot be exceeded for any reason . .1.L
MAXIMUM REQUESTED ADULT RESIDENT CAPACITY OF THE FACILITY (The number of adult residents
that receive recovery, treatment or detoxification services at any one time, which cannot be greater than the
total occupancy shown above): "1 .. 2 ________________ _
MAXIMUM NUMBER AND AGE RANGE OF DEPENDENT CHILDREN WHO ARE SUPERVISED BY
THEIR PARENT(S) IN THE FACILITY. This includes temporary residing (i.e., overnight, weekend visits) of
14
dependent children , (Since there must always be at least one adult being served, the maximum number of
dependent children housed must be at least one less than the total occupancy, determined by the fire
inspector, cs shown above): "0'-________________________ _
Are all clierts who reside on-site disabled persons? Yes under ADA Standards
Number of .taffwho will reside on-site: 0 (1 Volunteer)
Maximum number of staff who will provide services during anyone week to clients at the facility:..Q
Provide thn Facility Staffing Form shown as Form 400 to this Application.
Total numb ~r of employees of provider: 0
Please chalacterize the nature of staff services to the facility (i.e., nutritionists, massage therapists,
counselors, maids, cooks, etc):
Enforce CU lfew Check choresl cleanliness of faciljtym make sure all rules are enforced (see attachment)
Maximum n Jmber of clients who will use the facility on anyone day but reside elsewhere: L-
Maximum n Jmber of client visitors who will visit the facility during anyone week: _0 __
Maximum n Jmber of others who will visit the facility during anyone week: _' __ . Please explain:
Operator ch ~cks facility daily
C. BUILDING IIIAGRAM/FLOOR PLAN
Include a Bl ilding Diagram showing all building(s) to be occupied, including a floor plan of aU rooms intended
for resident~' use. Include the grounds showing buildings, setbacks, driveways, fences, storage areas, pools,
gardens, re< realional area and other spaces. All sketches shall show dimensions but need not be to scale.
Identify the l1umber of residents per bedroom and the location and the number of beds for all residents,
including thE location of beds for infants and other non-ambulatory persons. The Building Diagram supplied
with this ap~ lication must be accurate as to existing conditions in the building and must be consistent with the
building plar s currently on file with the Newport Beach Building Department for permitted construction.
D. DURATION OF TYPICAL CLIENT STAY IN FACILITY (In days): -"'8.,0,-_
If you wish, please explain:
90 minimum l\IoL3>l!6,;5L _______________________________ -,-
E. IS THE FACILITY ACCESSIBLE TO INDIVIDUALS IN WHEELCHAIRS OR OTHER NONAMBULATORY
CONDITIONS?
DYes 181 No
NOTE: The Americans with Disabilities Act of 1990 (ADA) is a comprehensive federal anti-discrimination law
for people with disabilities. The City reminds ali providers of residential recovery facilities that discrimination
against persclns with disabilities is prohibited. Please contact Newport Beach's Building Department (949-
644-3275) fo r specific ADA requirements that may apply to your facility.
15
F. ACTIVITY INFORMAT ION
Hours whic, facility will be in use:
1Z124f7 o Other (please describe) ______________________ _
Will there b ~ a curfew? If so, please note quiet hours:
0 10 p.m.·· 8 a.m. C8l Other (please describe) 10PM·7"3QAM Weekdays/12AM-BAM Weekends
Besides household activities, what types of care-related activities will occur on-site, and how many residents
and non·re~ idenls (including staff and clients from other facilities) will attend?
o "AA-·typ,! meetings __ _ o Physical Fitness (gym, yoga, etc) __ _
o ADP-Treatment (see 5A) __ _ o Other well ness (massage, etc) __ _
o Meal preoaration/delivery __ _ I8J Other: !lnoOln"e'---____________ _
Provide the Weekly Schedule of Services shown as Form 500 to this Application.
G. DELIVERY NFORMA n ON:
What types ,'f deliveries will occur at the facility and how often (per day or per week -circle whichever is
applicable) .. ,ill they occur?
D laundry Sevices:
D Meals: Iday or week
Iday or week I8J Trash disposal or recycling: Regular Municipal
Service: Monday: Winter Saturday Summer
D Business products: ___ J./"da"YUloLT w""e",e.k
D Correspo1dence, packages (other than USPS): Iday or week
D Medical F'roductslMedical Waste Pickup: Iday or week
IZI Other: ~lttled Water Hoysehold Supplies: 1 X every 2 weeks
"rash bags, Paper Products, etc
H. TRANSPORTATION AND PARKING:
Will clients rE siding on-site be allowed to use personal vehicles and/or keep them on-site or nearby?
IZI Yes ~J No
If Yes, describe where clients will park personal vehicles (garage, carport, on-street location, other -if on-
street, be specific about which streets)
Only in garac es or spaces for allowed belonging to residents
If No, describ~ other modes of transportation that clients will use (bus, other transit, bicycle, other).
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Please provide a Route Map showing transit and travel routes that will be used to transport clients off-site,
showing destinations of travel and approximate times of departure and return. N/A
Will staff serving the facility be allowed to drive personal vehicles to the site?
181 Yes DNa
If Yes, describe where staff will park personal vehicles (garage, carport, on-street location, other -if on-street,
be specific ,!bout which streets)
On Site in Driveway
NOTE: The City may not authorize on-street parking for clients or staff depending upon how impacted the
facility's strE'ets are.
I. MEDICAL t ,ND BIO·WASTE
NBMC §6.0,1.120 (Health and Sanitation: Prohibited Materials) prohibits the disposal of certain medical waste
or bio-waste into the City's refuse disposal system. Syringes, needles, urinalysis cups, and other waste must
be disposed of in accordance with the NBMC and other applicable laws. If you are uncertain as to what
wastes can )e disposed of in the City's disposal system, contact the City's General Services Department at
949-644-30!i6.
Applicants who will be disposing medical waste or other bio-waste must provide a Disposal Plan for Medical
and Bio-Wa!t.m showing how and where these wastes are disposed of (required by NBMC §20.91A.030.1).
Please attach the Disposal Plan if applicable. N/A
J. RULES OF ';ONDUCT -GOOD NEIGHBOR PRINCIPLES
If you have tlam, please include any documents that describe rules of client conduct and/or Good Neighbor
Principles th:lt your facility's staff and clients will adhere to if the City issues a Use Permit for this facility.
The City of ~Iewport Beach has developed Good Neighbor Principles for these uses (see the City's website
under Group Residential Uses),
Please state whether you agree voluntarily to comply with the City's Good Neighbor Principles:
181 Yes JJ Na
K. OTHER AW,ILABLE CERTIFICAT IONS
NBMC §20.91A.050.C.4 directs that applicants shall attain certification (or similar validation), where available,
from a govenmental agency or qualified non-profit organization. This includes:
The Orange County Sheriffs Department's Orange County Adult Alcohol and Drug Sober Living Facilities
Certificalion Program (see www ocsd.org for more information or contact Certificate Coordinator Lt. Jeff
Bardzik CIt 714-773-4523 or jbardzik@ocsd org or Margo Grise at 714·773-4521 at mgrise@ocsd org.
This cart fication is required.
The Orallge County Sober living Network (see http://www.soberhousing.neUorangecounty.htmlor
contact (irant McNiff at 71 4-875-2954. Th is certification is recommended.
17
You do not have to attain the OCSD certification to apply for a Use Permit, but we suggest that you attain the
certification within a reasonable amount of time (twelve [12] months) following your application submittal.
Shou ld a U:,e Perm it be issued, it may include a condition thai certification be obtained within a stated time
period. If YI}U have attained this certification prior to applying for the Use Permit, verify here that you have
attained thin certification , and attach the verifying document from the certifying entity:
D Orange I:ounty Adult Alcohol and Drug Sober Living Facilities Certification (required)
D Orange (;ounty Sober Living Network (recommended)
D Other (please describe) ___________________________ _
L. SECONDHIIND SMOKE LIMITATIONS
NBMC §20.!~1A.050.A directs that "no staff, clients, guests, or any other uses of the facility may smoke in an
area from w1ich the secondhand smoke may be detected on any parcel other than the parcel upon which the
facility is roc:lted. Check and sign here to acknowledge this requirement and your use's adherence to it:
fS::Il acknowledge that I will control secondhand smoke on my facility such that no secondhand smoke may be
detected on any parcel other than the parcel upon which my facility is located.
Signalure: ___ .!~="==-LG_ .... ='__ ____ _ Date: ---'1'f!-':7f!lc ... )~7'--------
9. APPLICANT OE:LIGATIONS
A. The "owner of record" of the property or an authorized agent must sign this Application. Signing the
application under Section 10 means that the applicant certifies, under penalty of perjury, that the information
provided within the Application and its attachments is true and correct. Per NBMC §20.90.030.C , false
statements;,:; re grounds for denial or revocation.
B. The Applicant acknowledges that he or she must comply with all other Federal, State, and local laws and
regu lations r,!lating to this use. The Applicant understands that a violation of Federal, State, and local laws
and regulati( ns is grounds for revocation of the Permit. The Applicant understands and acknowledges that it
is against C;;: lifornia law to provide treatment (as defined) in an unlicensed facility.
c . If the City issues a Use Permit based on the information provided in this Application, the Applicant's signature
below certifies his or her agreement to comply with the terms of the Use Permit. The Applicant understands
and acknowll~dges that non-compliance with the terms of the Use Permit is grounds for revocation of the
Permit.
Revocation of the Use Permit. NBMC §20.96.040.E provides that the City can revoke a Use Permit if;
The permit was issut'd under erroneous information or misrepresentation; or
• The applican t made a false or misleading statement of material fact, or omitted a material fact; or
The conditior s of use or other regulations or laws have been violated; or
• There has been a discontinuance of use for 180 days or more.
10. AUTHORIZED SIGNATURE!S) OF APPLICANT
THE UNDERSIG,~ED ASSURES THAT THE INFORMATION PROVIDED ON THIS APPLICATION IS TRUE
AND CORRECT ~ND THAT THE APPLICANT HAS READ AND UNDERSTOOD HIS OR HER OBLIGATIONS
UNDER ANY US = PERMIT ISSUED BASED ON THIS APPLICATION.
A. If the applicarlt is a sole proprietor, the application shall be signed by the proprietor.
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83/28/2889 18:48 949-645-2El59
DATE: December 12, 2009
TO: Whom II May Concern
FROM: Raflk Tardos
RE: Tenancy.1 124 & 124 11, 3d" Streel
Newport Beach, CA 92663
Dear SirlMadam:
To Whom It May Concem:
PIPELINE PRCMlTI(t.15 PAGE Ell /en
p.1
My name is Rafik Tardas and I am the representative of Ooea n No.1 LLC, owner of the
Property locahd at 124 30th Street. This property is a duplex and both units have been
leased to Balboa Recovery since October 2006.
r can personally state that It has been a pleasure to lease the property to Balboa
Recovery fort1ey have been ideal tenants. We have had zero (0) complaints from
neighboring residents or city officials. 80th units are kept in beautiful condition including
the patio, wal1cways and trash area. There is no overcrowding with people or vehicles.
Trash, noise and second hand smoke have not been an issue.
This is a distinct improvement over the previous tenants at the property for many years
(noisy parties, parking viola1ions, property damage, late rent, etc.) I wish we had more
tenants as neHt and dependable as Balboa Recovery.
Feel free to pa~me personally shoUld you have any questions or need further info.:~~tiO//
, , , .' L!ti/\.
Raflk Tardos
mallto:rm·tadrt,S@verizon.net
Ocean No.1 l_C.
650 Camino D"gloria
Walnut, CA 91 789
(626) 975--5881i
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January 14, 2009
To Whom J t May Concern:
My name i~ larett Jamison, I am the owner/ property management company oC the duplex
located at 3206 W. Balboa Blvd., Newport Beach, CA 92663 . I can personally state that
it has been 3. pleasure to lease the property to Balboa Recovery. They have been ideal
tenets. We have never had any complaints from neighbors. The properti es arc kept in
beautiful cc ndition; never overcrowded with people or cars, and noi se and second hand
smoke have not been an issue.
Sincerely.
~/_~
l arett Jamis,)n
10914" St., #C
Newport Beach, CA 9266 1
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To Whom 11: May Concern:
~ rJIS1l1
My name is /' . ./t?«z)fJ!9 . and I have been a resident of Newport Beach for
'F-,(years)_ and my family and 1 live next door to one of Ocean Recovery's women 's
sober living house that holds 12 girls. 1 can personally state that it has been a pleasure to
interact with the girls. They are respectable, well-mannered, responsible young adults
that are helpful and always willing to lend a hand, such as walking our dog when we are
out for a pmtion of the day.
Since knowing the girls, my family and 1 have been informed of the basic recovery
process and it has been a pleasure watching them grow and go about their day attending
activities sueh as school and work. We have also had the chance to meet their families
who are lovdy people and seem to fully support their children in their recovery.
We have no complaints in regards to the girls who are anything but disruptive and
di srespectful. We feel they have positive attitudes and bring enjoyment to the street we
live on.
Sincerely,
DIVERSIFIED REAL PROPERTY MANAGEMENT
AND BUSINESS SERVICES, INC.
180 East Main Street Suite 101 , Tustin, CA 92780 PH: 714544-7755 FAX : 714544-7771
DATE: January <0, 2009
TO: Whom It May Concern
FROM: Bob Marshall
RE: Tenancy at 204-21 st. Street
Newport Be"ch, CA
Dear Sir/Madam:
To Whom It May Concern:
Diversified Real F roperty Management has a contract with the owner of the above
referenced propelty to provide full management. This property is a duplex owned by
! . Mrs . Marge Hodson.
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I can personally s~ate that it has been a pleasure to lease the property to Balboa
Recovery since F"bruary 2006. They have been ideal tenants. We have had zero (0)
complaints from neighboring residents, and the two units on the property are kept in
beautiful condition. There is no overcrowding with people or vehicles, and noise and
second hand smoke have not been an issue.
This is a distinct improvement over the previous tenants at the property for many years
(noisy parties, par<ing violations, property damage, late rent, etc.) I wish we had more
tenants as neat and dependable as Balboa Recovery.
Feel free to call m" personally should you have any questions or need further
information .
Bob Marshall -Vi", President
Diversified Real Property Management
ACORD,. CERTIFICAT E OF LIABILITY INSURANCE I DA.TE (MWDOrfYYY}
02/18/200.
PROOI,.W;ER (949)263-0606 FAX (94')263-0906 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Complet e/Epi c Insurance Services ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND. EXTEND OR California DO! l 0829J70 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
19000 MacArthur Blvd ., PH Flr
Irvine, CA 92612 -144, INSURERS AFFORDING COVERAGE NArc #
INSURED Balboa Recove ry . I nc . INSU~ERA: Phi ladelphia Indemni t y I ns Co
3419 Via lido INSURER B:
Su; te 309 IrlSUREH C:
Newport Beach, CA 9266 3 INSIJAER 0: - -INSt)f.lER E:
I~;~~~~~g~ ~'STED BELOW INSURED NM.IED ABove ( I Iv i:~~ t :~;D::T~E ~ONJ~g~E~grHER ; ALL ' I (~~ctt~it~~} )~~~T~SUED OR , i~ ~~~~i~~U~~~E;~~~\ ') B'" I U '"' ""',, lAND I .TlDNS _~ -N;' '" _ 'OUCV"..... =~ '"'' "~'''nY ~ 06/25/ I' l.OOO.OO' Ix LIABILITY ~ I $ 100. DOC
l cu,.,.....,. [X] OCC"" I -5 , 000
A I-' .w." I-:~ l-I-1 ",,<,r ll.m.-',:'=f",c
i F COMBINEO SINGl.€ LIMIT • Am AUTO IE. acdC¥lI)
I-ALL OWNED AUTOS I-IIOOIt. Y IN,/URY (P"'~I$On) -I-SCtiEDUlED AUTOS
I.IREO AUf OS I-800JlV IrlJURY
(Per ..-.0"""') • I-NON-OWNf.OAUTOS
I-,-----PROPERTY DArAAGE , (Per aCcident)
, -,,' ,
R ANYAUTO OTHER TW.,N .~"c
,wTOONty· .00
~-OCCUR: D ClJ<l~\S MALlt R DEOUCTI81E . -.
WORKERS COMPENSATION AND ~ l°.'~
EMPLOYERS' UABlUTY
ANY PROPRIETOMARTHERlEXEC\,f1Ve
~"',"'M"",'" ''''''OED? ,-.' I .... fi ~ each Prof .. -pjPK324446
1 06/2 I 06/25/2009 limit
, liability 13M aggregate limit ,
I ;;x.al or Physical Abuse or Moles Tf.bil " abu s ive conduct limit; , 2M aggrega t e
,
,
, ;EBT!EICATE HOLDER
i SHOULD AHY OF TIiE A&OVE DESCRIBED POUCIES BE CANCELlED &£FORE THE , EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL
__ DAYS WRITTEN IoIOTlCE TO THE CERTIFICATE HOlDER NAMED TO THE lEFT,
! SlIT FAIlUR£ TO t.Wt.. SI./CH NOTICE $lW.L IMPOSE NO OBLIGATION OR LIAlIIlITY
I OF "'IN KINO UP<lN TH£ INSUR£R, ITS AG£HTS OR R£PRESENTATIVE$.
Proof of Coverage AUTl1ORIZEO RfPRESEHT AWE rcc':,> , Vinc ent Perricone - CII/PEe
ICORD 25 (2001/08) <{)ACORD CORPORATION 1988
City of Newport Beach
GROUP RESIDENTIAL USES -U~ 'ERMIT APPLICATION
ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION -CORPORATIONS
(Form 200 -February 2008)
INSTRUCTIONS: This form must be updated and submitted to the City each time there is a change in officers or
change in the cOrporation.
Name (as listed with the Secretary of State)
BALBOA RECOVERY, INC
Incorporation Date
SEPTEMBER 16 2006
Principal offi~ of business:
Address
341 9 VIS LIDO #309
Contact Person
KEVIN CULLEN
CORPORATION
C<y
NE'A'PORT BEACH
Title
CFO
Chief Executive Officer
DARRYL SHINDER
Plac.a of Incorporation
STATE OF CALIFORNIA
Zip Code Telephone
92663 949 400 71 20
Telephone
949 400 7120
Names and addresses of all persons who own ten per cent (10%) or more of slock in coJpOfation.
Governing Board of Directors
a. Number of Board Members
c. Frequency of Meetings
B dOffi 0" ICers an d .. be m B
Office Name
President DARRYL SHINDER
Vice-President KEVIN CUllEN
Secretary
Treasurer
Other
b. Term of OffICe
d. Method of Selection
USE A SEPARATE SHEET FOR ADDITIONAL NAMES
Business Address & City & Zip Code Telephone
Number
3419 VIA LIDO 1309 NEVVPORT BEACH, CA 92663 9496452053
34 19 VIA LIDO ~9 NEIJIIPORT BEACH, CA 92663 949 400 7120
Term
Expiration
INDEFINITE
INDEFINITe
City of Newport Beach
GROUP RESIDENTIAL USES -US . 'ERMIT APPLICATION
DELEGATION FORM -CORPORATIONS
(Form 2000 -February 2008)
STATEMENT OF CORPORATE DELEGATION
Applicants who are corporations shall attach board resolutions authorizing a delegation to the Program Director and/or
Administrator or other appropriate staff.
1. Applicant Name : "B"a",lb",o"a~R",e.,c"o"v"e"ry,-,l"nc",. ______________________ _
2. Program Name: _______________________________ _
3. Program Address: ",."19 .. V,,,',,-, ",ud",owS"'''''''",OL' ________________________ _
4. City: Newport Beach County:"Q~"mOM~ _____ _ Zip Code: ~92 .. "",',-__ _
5. Telephone: u{9,,4,,9:L.l "'40"'0"-L71,,2,,0'--______ _
6. KeYin Cullen
7.
(Name of person(s) authorized by applicant)
... is hereby designated as administrator, program manager, or agent of the above-named program and is authorized to
receive at the above named program on my behalf, any documents including reports of inspections and consultations,
accusations, and civil and administrative processes.
I WILL NOTIFY TH E CITY WITHIN 10 WORKING DAYS OF ANY CHAN GE OF THE ADMINISTRATOR OF
THE FACILITY.
Signature of applicant(s)
--~ <~
8. Title: ~v .... !.JP"'" .. , ... .,,,,,! _______________________________ _
9. Address: 3419 yia Lido 51, 309
10. City: Newport Beach County: "Q~"",09"''-____ _ Zip Code: ~92"66,,3,-__ _
City of Newport Beach
GROUP RESIDENTIAL USES -US_ .'ERMIT APP LICATION
ADMINI STRATI VE ORGANI ZATION -
PARTNERS HI PS, SOLE PROPRIETOR, AND OTHER ASSOCIATI ONS
(Form 200 P -February 2008)
PARTNERSHIPS
1, Attach a copy of the partnership agreement
2. Partners
Type of Partnership Name
0 General 1st Partner 0 Lim~ed
0 General 2nd Partner 0 Limited
0 General 3fd Partner 0 Limited
0 General 4th Partner 0 Lim~ed
Contact Person Title
Business Address City and Zip Code
Telephone 11
SOLE PROPRIETOR/OTHER ASSOCIATIONS
Sole Proprlelors/other associations must also provide a list of all person(s) legally responsible for the organization, the contact person, and appropriate legal
documents (ftCtitious name statement, business license) which set forth legal responsibility of the organization and accountability for opening Ihe program.
Use the following space or attach a separate sheet.
City of Newport Beach
GRO UP RESIDENTIAL USES -USE PERMIT APPLICATION
FACILITY STAFFING DATA
(Form 400 -Febru ary 2008)
Use this form to identify all staff of the facility/program. Designate volunteers by placing a "V' after their na me.
Employee Name and Title Date Total Time of Total Hours Date of Last
Employed Recovery Per Month CPR Training
Program Scheduled
Experience
N/A
.
_.--
Date of Last
First Aid
Training
City of Newport Beach
GROUP RESIDENTIAL USES -USE PERMIT APPLICATION
WEEKLY ACTIVITIES SCHEDULE
(Form 500 -February 2008)
WEEKLY SCHEDULE OF SERVICES
Time Monday Tuesday Wednesday Thursday Friday
6-7 a.m.
7-8 a.m.
8-9 a.m.
9-10 a.m.
10-11 a.m.
11 a.m.-12
12-1 p.m.
1-2 p.m.
2-3 p.m.
3-4 p.m.
4-5 p.m.
5-6 p.m.
6-7 p.m.
7-8 p.m. I
"DOES NOT APPLY
Saturday Sunday
TOTAL HOURS PER WEEK OF INDIVIDUAUGROUP/EDUCATION SESIONS, RECOVERY OR TREATMENT
PLANNING, AND DETOXIFICATION SERVICES (IF PROVIDED): ___________ _
Comments:
City of Newport Beach
GROUP RESIDENTIAL USES -USE PERMIT APPLICATION
NEWPORT BEACH FIRE MARSHt
(Form 850 -February 2008)
..... 1'I00'~
. FIRE CLEARANCE FORM
FIRE SAFETY INSPECTKJ N REQUEST -• 5 In lTuclion
I ( ) I'
UCtNUMG I I
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1. _ CI£'iIIt_ oe.:o ..-.. ~1IIIM::1lOff c. __
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City of Newport Beach
GROUP RESIDENTIAL USES -USE PERMIT APPLICATION
REQUIREMENTS OF NBMC §20.90 ef seq.
NBMC §20.91A.030 speaks to applicants complying wnh NBMC Chapter 20.90, portions of which are
summarized here:
20.90.030 Application Filing,
A Required Forms. Applications for discretionary approvals, including but not limited to, amendments,
development plans, modifications permits, site plan review, use permits, variances, and coastal permits
shall be filed in the office of the Planning Department in writing on forms prescribed by the Planning
Director.
B. Required Materials. Applications for discretionary approvals shall be accompanied by all plans,
maps, and other materials required by the prescribed forms, unless specifically waived by the Planning
Director. The Planning Director may request additional materials deemed necessary to support the
application.
C. Required Signatures. Application for discretionary approvals may be made by the owner, lessee, or
agent of the owner of the property affected. The application shall be signed by the owner of record or
may be signed by the lessee or by an authorized agent if written authorization from the owner of record
is filed concurrently with the application.
D. Fees. Applications for discretionary approvals shall be accompanied by a fee as established by
resolution of the City Council.
20.90.040 Planning Department Review
A Time Limits and Notification. Within thirty (30) days of the filing of an application, the Planning Department
shall determine whether the application is complete and notify the applicant in writing if the application is
determined to be incomplete.
B. Incomplete Applications. If the application is determined not to be complete, the Planning Department shall
notify the applicant in writing and shall specify those parts of the application which are incomplete and shall
indicate the manner in which they can be made complete, including a list and thorough description of the
specific information or materials needed to complete the application. Upon the receipt of the information or
materials needed to complete the application, or any re-submittal of the application, a new thirty (30) day
review period shall begin to determine the completeness of the application.
C. Extension of Time Limits. Extensions of the time limits of the review period are permitted when mutually
agreed upon by the Planning Department and the applicant.
D. Waivers. The Planning Director may waive the submission of items deemed unnecessary.
E. Exemption for Environmental Review. This section shall not be construed as limiting the ability of the
Planning Department to request and obtain information needed to conduct environmental review under the
terms of the California Envirollmental Quality Act.
See other aspects of Chapter 20.09 at http://municipalcodes.lexisn exis.comlcodes/newportblindex.htm.
# # #
Balboa Recovery
RULES
• Tolal abstinence from all mind altering chemicals and drugs, including alcohol. Anyone
caught violating this rule by the house manager or another resident will be required to
leave the house immediately.
Initial
Residents must immediately submit to a urine analysis when requested by house
manager. The analysis will be at the resident's expense.
The house manager must approve the keeping of any medication on the property.
For the first ninety (90) days following admission, residents are required to attend at least
one Twelve Step meeting every day including required house meetings and must
document attendance on a Balboa Recovery attendance card, which must be turned in at
the end of the week. After the first ninety (90) days, at least four Twelve Step meetings
per week are required,
Residents are required to get a sponsor within the first two weeks of admission and work
the Twelve Steps of recovery with this sponsor. Be prepared to identify your sponsor and
to discuss your progress with the house manager upon request of Balboa Recovery.
Curfew hours are 10:00 p.m. Sunday through Thursday, and 12:00 a.m. Friday and
Saturday. Special arrangements can be made with the house manger in advance for
special circumstances.
TV and lights are turned off at 11 :00 p.m. Monday through Thursday.
No personal TV's are allowed without permission of the house manager.
No loud music. Stereos can only be played at a reasonable level so as not to disturb
other residents or neighbors. After 9:00 p.m. headphones must be used.
Quite time is observed from 10:00 p.m. to 8:00 a.m. Sunday through Thursday and 12:00
a.m. to 8:00 a.m. Friday and Saturday. People who work deserve consideration.
Overnight passes must be requested at least 24 hours in advance. Bad attitude or failure
to do chores can result in the withholding of overnight passes.
Absolutely no stealing will be tolerated.
NO DAY SLEEPING! Beds must be made by 8:30 am. Once beds are made, residents
may not get back in it! Residents may lie on top of made bed fully clothed. Exceptions
may be made for residents who are sick, work nights, or have permission from the House
Manager.
Balboa Recovery
RULES
Borrowing money from or loaning money to other clients is not allowed.
Respect and be consideration of other residents.
Residents have agreed not to frequent bars or nightclubs.
No smoking in the house. Smoking is only permitted in designated areas.
No sexual contact will be allowed on the premises.
• All residents must be fully and properly clothed (Le., dresses, slacks, shirts, pants or
shorts) in the living room, kitchen, and yard.
Residents are to help keep the house neat and clean. Chores must be done daily.
Chores will be posted and will be changed weekly. There will also be a complete house
cleaning by residents every Saturday.
You must do your assigned chores, make your bed and clean your room daily before
8:30 a.m.! Dirty laundry must be properly put away out of sight at all times.
Clean up after yourself in the kitchen area. Wash, dry and return house utensils to their
proper place.
The telephone is for residents use only. Please be considerate of the other residents and
limit your calls to ten minutes if others are waiting to use the telephone. Visitors are not
permitted to use the telephone. Telephone will be turned off during house meetings.
The telephone must be answered "Hello~ or "Balboa Recovery". Do not volunteer any
information about other residents. A message board is provided. If you take a message
for another resident, please be courteous and record the message in the appropriate
place.
No holding or trafficking of any drug or paraphernalia is permitted.
Racist, sexist and foul language and propaganda are not permitted.
No weapons or violence or threats of violence will be permitted.
Balboa Recovery is not responsible for your personal property. Resident must remove all
of their personal property when their stay has been term inated. Resident agrees that any
personal property, which is not removed can be disposed of by Balboa Recovery.
• Residents must respect, take direction from and be supportive of the house manager.
Initial
Balboa Recovery
RULES
ANY PERSON BRINGING DRUGS OR ALCOHOL ON THE PREMISES WILL BE
REQU IRED TO LEAVE IMMEDIATELY.
THESE RULES MUST BE COMPLIED WITH TO ENSURE THE SAFETY AND
SECURITY OF THE BALBOA RECOVERY CLIENTS.
CLIENT AGREES SHE HAS CAREFULLY READ AND UNDERSTANDS THE RULES
AS STATED IN THIS CONTRACT.
"Client"
-,-'-Signature Date
Print
Balboa Recovery
DRINKING AND DRUG USE POLICY
No drinking of alcohol or ingesting of over the counter medications (including mouthwash, cold
remedies, etc,) containing alcohol is allowed ,
Any violation of this policy may result in the immediate discharge of the resident with a referral to
an appropriate detox or other recovery service for a minimum of 72 hours.
This same policy applies to any illicit or prescription medication with euphoric or mind altering
effects. Any use of such a drug ma y result in immediate discharge.
Certain non-euphoric medication, prescribed by a medical doctor, who has full knowledge of the
clients alcohol and/or drug problem for life sustaining purposes, will be allowed with prior approval
by the House Manager.
MEDICATIONS
The house manager must be advised of any prescription or oveHhe-counter drug or medication
ctient wants to keep on the property.
Initial
Balboa Recovery
RELAPSE
CONSEQUENCES OF RELAPSE
Any resident who uses drugs or alcohol will be referred to an appropriate detox or other recovery
service for a minimum of 72 hours before being allowed back into the facility. No client will be
allowed to detox al Balboa Recovery.
READMISSION
If a resident returns to Balboa Recovery after detox, the returning resident must:
o Request readmission.
o Give a clean drug lest.
e Meet all admission criteria.
An individual readmission interview is scheduled with the House Manager or Director and the
client to discuss readmission to the program. An attempt is made to determine the
appropriateness of readmission to this facility. The client is provided an opportunity to discuss any
problems that may have occurred during their last residency.
If the decision is for readmission, a new admissions agreement shall be signed and dated by both
the resident and operator.
Initial
Balboa Recovery
MEALS
Balboa Recovery provides the facilities for residents to prepare their own meals, as well as
nutritional information in accordance with the food guide pyramid so that residents may maintain
a well balanced diet. There are also markets, restaurants, and fast food stores within walking
distance of the facility.
RECREATIONAL ACTIVITIES
Activities available at or near the facility are:
o Swi mming
o Surfing
o Sailing
o Fishing
o Softball
o Tennis
o Basketball
o Skating
o Weight Training
o Running Kayaking
o Biking
a Golf
CRITERIA FOR ROOM REVIEW
No towels, linens, or personal clothing on the floors.
Bed made and personal space in order
No food in bed or bedroom.
No electrical equipment left plugged-in in bathroom
No paint or "spill able" materials in the apartments
Chore(s) Completed
Room review(s) will be held every day
"'mericans with Disabilities Act (' '.stions and Answers
Q. Are alcoholics covered _, the ADA?
Page 1 of 1
A. Yes. While a current illegal user of drugs iSI not protected by the ADA if an employer
acts on the basis of such use, a person who currently uses alcohol is not automatically
denied protection. An alcoholic is a person with a disability and is protected by the ADA if
s/he is qualified to perform the essential functions of the job. An employer may be
required to provide an accommodation to an aleoholic. However, an employer can discipline.
discharge or deny employment to an alcoholic Whose use of alcohol adversely affects job
performance or conduct. An employer also may prohibit the use of alcohol in the workplace
and can require that employees not be under the influence of alcohol.
nttp://www.ada.gov/qY.26aeng02.htm 112/2009
~DA Title II Technical Assistanc 'IIanual Page 1 of 4
II-2.3000 Drug addiction as ar, _.~pairment. Drug addiction is an ilTl~"irment under the ADA. A public
'ntity. however. may base a decision to withhold services or benefits in most cases on the fact that an
lddict is engaged in the current and illegal use of drugs.
What is "illegal use of drugs"? Illegal use of drugs means the uSe of one or more drugs, the possession
or distribution of which is unlawful under the Controlled Substances Act. It does not include use of
controlled substances pursuant to a valid prescription, or other uses that are authorized by the
Controlled Substances Act or other Federal law. Alcohol is not a "controlled substance," but alcoholism
is a disability.
What is "current use"? "Current use" is the illegal use of controlled substances that occurred recently
enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real
and ongoing problem. A public entity should review carefully all the facts surrounding its belief that an
individual is currently taking illegal drugs to ensure that its belief is a reasonable one.
Does title II protect drug addicts who no longer take controlled substances? Yes. Title II prohibits
discrimination against drug addicts based solely on the fact that they previously illegally used
controlled substances. Protected individuals include persons who have successfully completed a
supervised drug rehabilitation program or have otherwise been rehabilitated successfully and who are
not engaging in current illegal use of drugs. Additionally, discrimination is prohibited against an
individual who is currently participating in a supervised rehabilitation program and is not engaging in
current illegal use of drugs. Finally, a person who is erroneously regarded as engaging in current illegal
use of drugs is protected.
Is drug testing permitted under the ADA? Yes. Public entities may utilize reasonable policies or
procedures, including but not limited to drug testing, designed to ensure that an individual who
formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs.
II-2.4000 Substantial limitation of a major life activity. To constitute a "disability," a condition
must substantially limit a major life activity. Major life activities include such activities as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
When does an impairment "substantially limit" a m'lJor life activity? There is no absolute standard for
determining when an impairment is a substantial limitation. Some impairments obviously or by their
nature substantially limit the ability o·f an individual to engage in a major life activity.
ILLUSTRA TION 1: A person who is deaf is substantially limited in the major life activity of
hearing. A person with a minor hearing impairment, on the other hand, may not be
substantially limited .
ILLUSTRATION 2: A person with traumatic brain injury may be substantially limited in the
major life activities of caring for one's self, learning, and working because of memory
deficit, confUSion, contextual difficulties, and inability to reason appropriately.
An impairment substantially interferes with the accomplishment of a major life activity when the
http://www.ada.gov/taman2.html 112/2009
~DA Title II Technical Assistan( "'anual Page 2 of 4
.ndividual's important life activiti~" are restricted as to the conditior,_, manner, or duration under
Nhich they can be performed in comparison to most people.
ILLUSTRA TION 1: A person with a minor vision impairment, such as 20/40 vision, does not
have a substantial impairment of the major life activity of seeing.
ILLUSTRA TION 2: A person who can walk for 10 miles continuously is not substantially
limited in walking merely because, on the eleventh mile, he or she begins to experience pain,
because most people would not be able to walk eleven miles without experiencing some
discomfort.
Are "temporary" mental or physical impairments covered by title II? Yes, if the impairment
substantially li mits a major life activity. The issue of whether a temporary impairment is significant
enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the
duration (or expected duration) of the impairment and the extent to which it actually limits a major
life activity of the affected individual.
ILLUSTRA TION: During a house fire, M received burns affecting his hands and arms. While
it is expected that, with treatment, M will eventually recover full use of his hands, in t he
meantime he requires assistance in performing bas ic tasks required to care for himself such
as eating and dressing. Because M's burns are expected to substantially limit a major life
activity (caring for one 's self) for a significant period of time, M would be considered to
have a disability covered by t itle II.
If a person's impairment is greatly lessened or eliminated through the use of aids or devices, would the
person still be considered an individual with a disability? Whether a person has a disability is assessed
without regard to the availability of mitigating measures , such as reasonable modifications, auxi liary
aids and services, services and devices of a personal nature, or medication. For example, a person with
severe hearing loss is substantial ly limited in the major life activity of hearing, even though the loss
may be improved through the use of a hearing aid. Likewise, persons with impairments, such as epilepsy
or diabetes, that, if unt reated, would substantially limit a major life activity, are still ind ividuals with
disabilit ies under the ADA, even if the debilitating consequences of the impairment are controlled by
medicat ion.
II-2.5000 Record of a physical or mental impairment that substantially limited a major life
activity. The ADA protects not only those individuals with disabi lities who actually have a phYSical or
menta l impairment that substantially limits a major life activity, but also those with a record of such an
impairment. This protected group includes --
1) A person who has a history of an impairment that substantially limited a major life activity
but who has recovered from the impairment. Examples of individuals who have a history of
an impairment are persons who have histories of mental or emotional illness, drug addiction,
alcohol ism, heart disease, or cancer.
2) Persons who have been misclassified as haying an impairment. Examp les include persons
http://www.ada.qov/taman2.htmI 1l2/2009
~DA Title II Technical Assistanr 'Aanual Page 3 of 4
;'ho have been erroneously <.. .• gnosed as mentally retarded or m~ .. rally ill.
U-2.60OO "Regarded as." The ADA also protects certain persons who are regarded by a public entity
as having a physical or mental impairment that substantially limits a major life activity, whether or not
that person actually has an impairment. Three typical situations are covered by this category:
1) An ind ividual who has a physical or mental impairment that does not substantially limit
major life activities, but who is treated as if the impairment does substantially limit a major
life activity;
ILLUSTRA TION: A, an individual with mild diabetes controlled by medication, is barred by
the staff of a county-sponsored summer camp from participation in certain sports because
of her diabetes. Even though A does not actually have an impairment that substantially limits
a major life activity, she is protected under the ADA because she is treated as though she
does.
2) An individual who has a physical or mental impairment that substantially limits major life
activities only as a result of the attitudes of others towards the impairment;
ILLUSTRA TION: B, a three-year old child born with a prominent facial disfigurement, has
been refused admittance to a county-run day care program on the grounds that her presence
in the program might upset the other children. B is an individual with a physical impairment
that substantially limits her major life activities only as the result of the attitudes of
others toward her impairment.
3) An individual who has no impairments but who is treated by a public entity as having an
impairment that substantially limits a major life activity.
ILLUSTRA TION: C is excluded from a county-sponsored soccer team because the coach
believes rumors that C is infected with the HIV virus. Even though these rumors are untrue,
C is protected under the ADA, because he is being subjected to discrimination by the county
based on the belief that he has an impairment that substantially limits major life activities
(i .e., the belief that he is infected with HIV).
II-2.7ooo Exclusions. The following conditions are specifically excluded from the definition of
"disability": transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity
disorders not resulting from physical impairments, other sexual behavior disorders, compulsive
gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current
illegal use of drugs.
II-2.Booo Qualified individual with a disability. In order to be an individual protected by title II,
the individual must be a "qualified" individual with a disability. To be qualified, the individual with a
disability must meet the essential eligibility requirements for receipt of services or participation in Q
public entity's programs, activities, or services with or without --
http://www.ada.gov/taman2.html 11212009
ADA Title II Technical Assistanr Manual Page 4 of 4
1) Reasonable modification. ,a public entity's rules, poliaies , 0 , ,;ractices;
2) Removal of architectural, communication, or transportation barriers; or
3) Provision of auxiliary aids and servi ces.
The "essential eligibility requirements" for participation in many activities of public entities may be
minimal. For example, most public entities provide information about their programs, activities, and
services upon request. In such situations, the only "eligibility requirement" for receipt of such
information would be the request for it. However, under other circumstances, the "essential eligibility
requirements" imposed by a public entity may be quite stringent.
http://www.ada.gov/taman2.html 172/2009
~(:-
OCEAN RECOVERY
FoundoHon for Hope
January 2, 2009
To Whom It May Concern :
My name is Kathy Tunney, the Executive Director of Ocean Recovery in Newport
Beach. 1 run an intensive, therapeutic treatment center for newly sober young adults
recovering from addi ctive disorders.
When the cli ents successfully complete 90 days of the residential program they are then
considered to transition into sober living which is run by the Admissions Director and
sober li ving manager, Kevin Cullen. Kevin has an extraordinary amount of experience
and has been working with Ocean Recovery si nce it opened in February 0[2003.
Balboa Recovery is a gender specific sober living that only accepts Ocean Recovery
alumni. It is strictly for those individuals who have completed at least 90 days of our
treatment program. All of the clients are aware of the rules that are enforced and
understand that it is a privilege, not a punishment, to be given the opportunity at hand.
Balboa Recovery is within walking distance to Ocean Recovery and we feel it is
imperative in order to help maintain a sense of security and stability and to help with any
future needs of the clients.
Collectively. our goal is to get each client in the best, most stable position possible in
order to transiti on them once they are ready. Once this transition occurs, Balboa
Recovery continues to provide structure and maintain control over what the clients are
doing both on an individual level as well as a community level.
Ocean Recovery has an incredible success rate, especially in regards to those clients who
transition into sober living and remain in the area. Hopefully our judgments are trusted
when we say that without the sober living opportunity, we would fmd it near impossible
to continue reintegrating these newly sober and recovering young ad ults into their
communities, schools, workplaces and social settings.
Sincerely,
Kath unney
Executive Director
OCEAN RECOVERY
3419 Via Lido #310 Newport Beach, California 92663
Ph. (949) 723-2388, (800) 641-2388 Fax. (949) 723-1288
Exhibit No.2
Staff Request for Additional Information
Dated April 7, 2009
Request for Additional Information
Reasonable Accommodation Applications
Page 2
d. The month and year the use was established in each build ing.
e. How many parking spaces are provided on-site for each unit or building?
f. 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?
g. Does the facility provide transportation seNices for the clients? If so, where is
the transportation van parked? To what location is transp0rtation provided and
how frequently is the transp ortation provided?
h. You have submitted a list of house ru les -how are they enforced?
i. You have identified curfew and quiet hours -how are they enforced?
J. Who determines the population of each building?
k. What is the typical duration of stay of the clients residing in the fa ci lities?
I. Are minors permitted to reside in the facilities?
4. In order to approve or conditionally approve a reasonable accommodation
request, there are five findings which mus t be made. These findings are
contained in Section 20.98.025(B) of the NBMC.
Section 20.98.025(8)(2) reads as: "ThAt the requested accommodatjon is
necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling." Please submit in formation that would
assist us with making th is fin ding . The fi nding of "necessity" can be based on the
economic viabi lity of a facili ty, or the therapeutic benefit of the size and number
of residents of a facility.
Please describe why the requested accommodation is necessary to make your
facility economically viable. Su pporting data for economic viability would typically
take the form of leases, utility bills, general expenses, general income etc.
If th e request is made in ord er to provide housing to more than six disabled
in dividuals in a building , please describe the therapeutic benefit provided to
residents living with that number of other disabled individuals.
5. Facility Administrator: Please provide the name and contact information for the
fa cility administrator or manager. If the facility provides 24n on-site staffing,
please provide contact information for that staff person(s).
6. Site Plan/Floor Plans: Please provide a dimensioned site plan showing the
location of the buildings on the lots, the location and number of on-site parking
spaces. On the floor plans you have already provided, please indi cate the number
of bedrooms in each unit, and the number of beds in each bedroom.
Exhibit No. 3
Supplemental Information
Submitted By Applicant
Application Number ___ _
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.
I am seeking a "Reasonable Accommodation" from the provision of Section 20 .10.020 that my
facility may only be located in an MFR District with a use permit. I am also seeking the
accommodation from the R2 requirement that my facility be licensed. The California
Department of Alcohol and Drug Programs does not require licensing of this type of facility. We
provide residents a safe. supportive drug and alcohol free environment for those recovering from
the disease of alcoholism.
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.
The individuals' lives are enhanced by proximity of OCEAN RECOVERY. the Newport Alano
Club. and all the amenities of living near the beach. Most of the people we house do not have
transportation other than bicycle and by foot which enhances the need for closeness to both
OCEAN RECOVERY and the Alano Club. Since all the residents are alumni of OCEAN
RECOVERY they feel morc comfortable and safe close the facility.
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.
They will no longer be able to reside in the same level of comfort and safety as they do now in
Newport Beach.
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.
We are locked into leases which would in turn cause major financial problems. We are still
paying of this loan for setting up this business. The cost of setting up a home is very exoensive
(lease. utilities. deposit. furniture). Closing of moving our homes would be a financial burden
and would cause a huge deficit within or company causing more debt. Due to the current
economic climate this would be very difficult to overcome. More important than the economic
concerns of our business is the well being of our residents
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.
Ofthc few facilities that have applied for the permit that are located on Balboa Peninsula to our
knowledge all arc licensed treatment facilities. It stands to reason that after February 2009 sober
living homes will become virtually non existent. Furthennore. OCEAN RECOVERY will not
refer to other homes. which will put a huge burden on those who have complcted thc program at
Ocean recovery. Of our three homes. one is exclusively for men while the other two are
exclusively house women. There are no other "sober living" homes for women on the peninsula.
Page 2 of3
Application Number ___ _
9. Please add any other infonnation that may be hcJpful 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.) Only alumni of OCEAN RECOVERY reside in our homes. OCEAN RECOVERY
does not refer to any other facilities. We have been in business since 2005 without any
complaints from neighbors or the city of Newport Beach. None of our homes are located near
churches. schools. All surrounding buildings are rental properties or commercial businesses
(Albertsons. Spaghetti Factory. 7M lll. There is no negative impact on parking; we do not exceed
the number of parking spaces on site. All residents obey a curfew and a long list of rules and
conditions (please see attached admissions agreement). All homes are clean organized and quiet.
Balboa Recovery provides safe. structured. gender specific housing for those in recovery
from alcoholism. We have stated the benefits of being on the Balboa peninsula. with out this
service OCEAN RECOVERY alumni will be forced to find housing out of the area or on their
own. It will not be as structured. safe or comfortable. This will put our residents at risk. Its
common knowledge the longer a person stays in a safe sober structured environment the great
their chance at recovery.
When treatment is completed. young adults often require more practice applying the new
skills they have recently acquired. A large percentage of clients are students they take time off
for treatment and return to school when treatment is completed. However there is often a gap of
several months between completion of treatment and the start of a new semester. Balboa
Recovery helps to bridge that gap. If an individual plans on staying in the area for anything less
than a year. a big problem arises. To rent an apartment requires a lease typically ora year
commitment or perhaps pay thc astronomical weekly summer rates. Then there are all the costs
of making an apartment a livable home. We have found the best locations possible for our
residents. The homes are all set up with everything the client needs to move in. This makes the
transition between treatment and "sober living" as smooth as possible.
Pnge30f3
The majority of residents do not have their own cars, mostly because it's typically
not safe to give someone new in recovery that kind of responsibility. However
after a period of time (varies per individual) some residents are allowed to use
their own vehicles while at Balboa Recovery with some very important
conditions. The biggest being no one is allowed to have a car with out my (Kevin
Cullen) permission. This can be easily enforced. I have a strong relationship with
every client's family. They trust me as a professional to do what's best for their
child. If I tell them no car, they don't get a car. It's that simple.
Residents park in provide parking spaces. Nine months out of the year parking is
not an issue. During sununer months when parking is at a premium, we do not
exceed the spaces that are provide at each location.
g. Does the facility provide transportation services?
No transportation is provided by Balboa Recovery.
h. I-low are rules enforced?
Rules are enforced by me (Kevin Cullen) and by the resident house managers.
Consequences of rule violations are detennincd by the incident in question. To
date there have been no complaints brought to my attention.
1. Curfew and quiet hours. how arc they enforced?
All rules are enforced by the resident managers. Every resident checks in with the
resident manager before curfew. To date there have been no complaints
brought to my attention.
J. 'Who determines the population of each building?
The population in each facility is determined by the operator.
k. 'What is the typical duration of stay of the clients?
The typical stay is 10 months. Some residents stay for a minimum of 3
months and some have stayed for 18 months.
1. Are minors permitted to reside in the facilities?
No minors are allowed to reside at Balboa Recovery.
4. Why the requested use is necessary.
Only alumni of OCEAN RECOVERY reside in our homes, OCEAN RECOVERY does
not refer to any other facilities. We have been in business since 2005 without any
complaints from neighbors or the city of Newport Beach. None of our homes are located
near churches or schools. All surrounding buildings are rental properties or commercial
businesses (Albertsons, Spaghetti Factory, 7-11). There is no negative impact on
parking; we do not exceed the number of parking spaces on site. All residents obey a
curfew and a long list of rules and conditions (please see attached admissions agreement).
All homes are clean, organized, and quiet.
Balboa Recovery provides safe, structured, gender specific housing for those in
recovery [rom alcoholism. We have stated the benefits of being on the Balboa Peninsula,
with out this service OCEAN RECOVERY alumni will be forced to find housing out of
the area or on their own. It will not be as structured, safe or comfortable. This will put
our residents at risk. Its common knowledge the longer a person stays in a safe sober
structured environment the greater their chance at recovery.
When trcatment is completed, young adults often require more practice applying
the new skills they have recently acquired. A large percentage of clients are students,
they take time off [or treatment and return to school when treatment is completed.
Ilowever, th ere is often a gap of several months between completion of treatment and the
start of a new semester. l3alhoa Recovery helps to bridge that gap. If an individual plans
on staying in the area for anything les~ than a year, a big problem arises. To rent an
apartment requires a lease typically of a year commitment or perhaps pay the
astronomica l wcekl y summcr rates. Then there arc all the costs o[ making an apartment a
livable home. We have found the best locations po ssible for our residents. The homes
are all set up with everything the client needs to move in. This makes the transition
between treatment and "sober living" as smooth as possible.
All of our homes are duplexes. It is necessary that we continue to operate in both units.
It is in the residents' best interest and safety, for Balboa Recovery to have total control
over as much of their living space as possible. We have rules in place that ensure the
safety and well being of our residents, as well as, keeping noise, trash, and parking to a
minimum.
All of our facilities are gender specific; we believe coed facilities can be disastrous. It is
completely unsafe to have half a building filled with young women new in recovery, and
then have the other half rented out by some fraternity guys or perhaps a revolving door of
weekly summer renters.
5. Facilitv Administrator: Kevin Cullen Office 949-723-2388
Cell 949-400-7 120
Managers: 30th unit A-Laura Cruise 303-956-991 0
30'" unit B-Ashley Self 435-640-9636
2 1" A & B-Devon McCalla 949-632-6759
32nd unit A-Ben Harman 406-690-2001
32" unit B-Andrew Middleman 714-308-7950
6. Site PlanIFloor Plans: Please see attached documents.
04/27/20a9 13: 24 9497231288
To Whom [t May Concern:
OCEAN RECOUERY
8R BALBOA RECOVERY
3419 Via Lido Ste . 309
Newport Beach, CA 92663
www.balboa recovery .com
I cenify that the following is information is true; my signature aclmowledges my
understanding that any false statement I would make would be grounds for perjury.
PAGE 132/02
All residents living at Balboa Recovery sober living homes are legally disabled under the
provisions of.the Americans with Disabilities Act of 1990, Section 12102 , United States
law in addition to the State of California Fair Employment and Housing Act of 1974,
amended in 2001. Each individual has received inpatient care from a treatment center
licensed by the state of California Bureau of Alcohol and Drug Programs.
Thank you,
4,Q~-'C '-----
Kevin Cullen
Balboa Recovery
...
To Whom It May Concern:
8R
BALBOA RECOVERY
3419 Via Lido Ste. 309
Newport Beach, CA 92663
www.balboarecovery .com
I certify that the following is information is 11 ue; my signature acknowledges my
understanding that any false statement I would make would be grounds for perjury.
All residents living at Balboa Recovery sober living homes are legally disabled under the
provisions of the Americans with Disabilities Act of 1990, Section 12 102, United States
law in addition to the State of California Fair Employment and Housing Act of 1974,
amended in 2001. Each individual has received inpatient care from a treatment centcr
licensed by the state of California Bureau of Alcohol and Drug Programs.
Thank you ,
Kevin Cullen
April 16, 2009
Re: Rule Enforcement
To Whom It May Concern:
8R BALBOA RECOVERY
34 19 Via Lido Ste . 309
Newport Beach, CA 92663
www .balboarecovery .com
RECEIVED BV
PlAt-I! ':.' ' .... , .H:NT
APR 17 2il09
CITY vF 1~c'~V~ 1.1/\ I )I.,{H
I hope the following will give a better understanding of how Balboa Recovery enforces
our rules and some of the consequences of breaking the rules_
In our Reasonable Accommodation Request we submitted a very extensive list of rules
that residents adhere to . The rul es are enforced by the li ve in resident managers.
Resident managers are expected to make sure residents obey the rules at all times. All
consequences arc determined by the operator.
Although residents are subject to discharge at any time for any reason, thi s is how we
handle minor rule infractions:
First offense: verbal and written warning.
Second offense: written warning and loss of privileges (such as early curfew) and or extra
chores.
Third offense: three days out of the house at a higher level of care such as Yellowstone
Recovery.
Major rule infractions, as outlined in our submitted paperwork. are not tolerated under
any circumstances and are grounds for immediate discharged.
We arc not interested in trying to help people that don't want our help. If someone does
not want what we have to offer there are other places for that individual to go.
~~
Kevin Cullen
Balhoa Recovery
April 16, 2009
Re: Client List
To Whom It May Concern:
8R
BALBOA RECOVERY
3419 Via Lido Ste. 309
Newport Beach, CA 92663
www .balboarecovery.com
'ECFIVF IW
P!I": , , ,"
APR 17 2003
Attached is a list of all clients that have stayed at Balboa Recovery since January 1,2008 .
If you need anything else please don 't he sitate to ask.
Sincerely,
~
Kevin Cullen
Balboa Recove ry
30th upstairs
1/1/2008
ApVBed Name Admit Days Paid Due Date Note
1 Allie 8/21107 30 1121/07 -
2 l:ynnie 9126/06 15 1110107
3 Jenny I. 7128/07 30 1128/08
4 --
5 Halley M 6/13/07 30 1/13/07
6
Deposits
Notes:
2/1 2/2008
ApUBed
1
2
Name
Jenny I.
3 Abi
4
5
6
Deposits
Notes:
30th upstairs
Admit
7/27108
8/10108
Days Paid
30
30
Due Date
2/28/0,-,8 __
3/11/08
Note
30th upstairs
3/4/2008
ApUBed Name Admit Days Paid Discharge Note
1 Jenny I. 7/27/08 30 3/28/08
2
3 Adrienne 2/27/08 30 3/27/08
4 Jen A. 3/4108 30 4/4/08
5 Laura C 2/22/08 30 3/22/08 -
6 Abi 8/10108 30 3/11 /08
Deposits
Notes:
30th upstairs
4/3/2008
AfJIIBed Name Admit Days Paid Due Date Note
1 Jenny I. 7/27/08 30 4/5108 ---------
2 Shannon 3/24/08 30 4/24/08 -
3 Adrienne 2/27/08 30 4/27/08
4 Jen A. 3/4108 30 5/1/08 ---
5 Laura C 2/22/08 30 4/22/08
6 Lauren L 3/20108 30 4/20108
Deposits
Notes:
30th upstairs
6/5/2008
ApUBed Name Admit Days Paid Due Date Note
1
2 Shannon 3/24/08 30 6/24/08
~------
3 Adrienne 2/27108 30 6/27108 ----
4 ---
5 La ura C 2/22/08 30 6/22/08 House mom
6 Lauren L 3/20108 30 6/20108 _._---
Deposits
Notes:
30th upstairs
7/11/2008
ApUBed Name Admit - --Days Paid Due Date Note
1
2 Shannon 3/24/08 30 7/24/08 -
3 Adrienne 2/27/08 30 7/27/08
4
5 Laura C 2/22/08 30 7/22/08 House mom
6 Lauren L 3/20/08 30 7/20108
Deposits
Notes:
30th upstairs
8/6/2008
ApUBed Name Admit Days Paid Due Date Note
1 Lilly 8/5/08 30 9/5/08 -
2 Shannon 3/24/08 30 8/24/08
3 Adrie nne 2/27/08 30 8/27/08 -- -
4 Sarah B 7/13/08 30 8/13/08 ---
5 Laura C 2/22/08 30 8/22/08 House mom
6 Lauren L 3/20108 30 8/20108 - ----
--
Deposits
Notes:
30th upstairs
9/1/2008
Apt/Bed Name Admit Days PaicL Due Date Note
1 Lilly 8/5/08 30 9/5/08 - ----
2 Shannon 3/24/08 30 9/24/08 ----
3 Adrienne 2/27/08 30 9/27/08 ---
4 Sarah B 7/13/08 30 9/13/08
5 La ura C 2/22/08 30 9/22/0 8 House mom
6
Deposits
Notes:
Deposits
Notes:
30th upstairs
12/8/2008
ApUBed Name Admit Days Paid Due Date Note
1 Jennie B. 1017108 30 117108
2 Shannon 3/24/08 30 12/24/08
3 Adrienne 2127108 30 12/27/08
4 Jen A. 11/4108 30 114108 --
5 Laura C 2/22/08 30 12/22/08 House mom --
6 Kayla 10/21/08 30 12/21/08
Deposits
Notes:
30th upstairs
2/3/2009
AjltfBed Name Admit Days Paid Due Date Note
1 Jennie B. 1017108 30 317109
2 Shannon 3124/08 30 2/24/09
3 Adrienne 2/27/08 30 2/27/09 --
4 -
5 Laura C 2/22/08 30 2/22109 House mom ----
6 Kayla __ 10/21108 30 2121/09 ----
Deposits
Notes:
30th upstairs
3/3112009
ApUBed Name Admit Days Paid Due Date Note
1 Jennie B. 1017108 30 517109
2 Shannon 3/24/08 30 4/24/09
3 Adrienne 2/27108 30 4/27109
4 Lauren 2/28/09 30 4/28/09 ----
5 Laura C 2/22/08 30 4/22/09 -
6 Kayla 10/21/08 30 4121109
Deposits
Notes:
Balboa Recovery Women 30th
1/1/2008
ApUBed Name Admit Days Paid Due Date Note
31
32 Ashley 12128/08 30 1/28/08 House ---
33 Sarah K 10/9/07 30 119107 cash - -----------
34 Jesse May 12/12/08 30 1112108
35 Jordan 1/1 4/0 8 30 1/14/08
36 Christen 1/14/07 30 1/14/07
Balboa Recovery Women 30th
2111/2008
ApUBed Name Admit Days Paid Due Date Note
31
32 Ashley 12/28/08 30 2128108 House
33 Sarah K 10/9/07 30 3/9/08
34 Jesse May 12112/08 30 3112108
35 Jordan 1114108 30 3/14/08
36 Christen 1114107 30 3/14/08
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
3/5/2008
Apt/Bed Name Admit LOS Discharge Total Paid Due Note
31
32 Ash ley 12128/08 30 3128108 $1,000 $1,000 $0
33 Sarah K 10/9/07 30 319108 $1,000 $1 ,000 $0 cash -
34 Jesse May 12/12108 30 3112/08 $1 ,000 $1,000 $0 --
35 Jordan 1/14/08 30 3/14/08 $1 ,000 $1 ,000 $0 ---
36 Christen 1/14/07 30 3/14/08 $400 $400 $0
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
4/7/2008
ApU8ed Name Admit Days Paid Due Date Note
31 Kelsey 3/25/08 30 4/25/08
32 Ashley 12/28/08 30 3128108
33 Sarah K 10/9/07 30 5/9/08 House
34 Jesse May 12112/08 30 4112108
35 Jordan 1/14/08 30 4/14/08
36 Christen 1114107 30 4/14/08
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
5/10/2008
ApUBed Name Admit Days Pa id Due Date
31 Kelsey 3/25/08 30 4/25/08
32 Ashley 12/28/08 30 4125108
Note
33 Sarah K 10/9/07 30 6/9/08 House
34 Jesse May 12112/08 30 6112108
35 --
36
Deposits
TOTAL COLLECTED:
Notes:
Ba lboa Recovery Women 30th
6/1 2/2008
ApUBed Name Admit Days Pa id Due Date
31 Kelsey 3/25/08 30 6/25/08
Note
32 Ashley 12/28/08 30 6125108 House
33 Sarah K 10/9/07 30 719108
34 Jesse May 12112/08 30 7112108
35
36
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
7/3/2008
ApUBed Name Admit Days Paid Due Date
31 Kelsey 3/25/08 30 7/25/08
Note
32 Ashley 12/28/08 30 6125108 House
33 Sarah K 10/9/07 30 719108 -
34 Jeo;se May 12/12108 30 7112/08
35
36
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
8/4/2008
ApVBed Name Admit Days Paid Due Date
31 Kelsey 3/25/08 30 8/25/08
32 Ashley 12/28/08 30 8125108
Note
33 Sarah K 10/9/07 30 819108 House
34 Jesse MaL 12112/08 30 8112108
35 Megan 7/22/08 30 8/22/08
36
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
9/1/2008
Apt/Bed Name Admit Days Paid Due Date Note
31 Kelsey 3/25/08 30 9/25/08
32 Ashley 12/28/08 30 9125108
33 Sarah K 10/9/07 30 919108 House mom
_34_Jesse May 12/12/08 30 9112108
35 Megan 7/22/08 30 9/22/08 --
36 Gretchen Z 9/1108 30 1011/08
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
10/10/2008
ApVBed Name Admit Days Paid Due Date Note
31 Kelsey 3/25/08 30 10/25/08
32 Ashley 12/28/08 30 9/25/08
33 Sarah K 10/9/07 30 10/9/08 House mom
~
34 Jesse May 12/12/08 30 11/12/08
35 Megan 7122/08 30 10/22/08
~-
36 Gretchen Z 9/1/08 30 11 /1/08 ---
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
11/10/2008
ApVBed Name Admit Days Paid Due Date Note
31 Kelsey 3/25/08 30 11/25/08
32 Ashley 12/28/08 30 11/25/08
33 Sarah K 10/9107 30 12/9/08 House mom
34 Jesse May 12/12/08 30 12/12/08
35 Megan 7122108 30 11/22/08
36 Gretchen Z 911 /08 30 1211 /08 -
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
12/1/2008
ApUBed Name Admit Days Paid Due Date Note
31 Kelsey 3/25/08 30 12/25/08
32 Ashley 12/28/08 30 12/25/08
33 Sarah K 10/9/07 30 1219/08 House mom -
34 Jesse May 12/12/08 30 12/12/08
35 Megan 7122108 30 12/22/08
36 Gretchen Z 911108 30 111/08
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
11112009
ApUBed Name Admit Days Paid Due Date Note
31 KeiseL 3125/08 30 1125109
32 Ashiey __ 12/28108 30 12/25108
33 Sarah K 10/9/07 30 1/9109 House mom -
34 Jesse May 12112/08 30 1112/09
35 Megan 7/22/08 30 1122109
36 Gretchen Z 9/1/08 30 2/1/09
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
2/3 /2009
ApUBed Name Admit Days Paid Due Date Note
31 Kelsey 3/25/08 30 2/25/09
32 Ashley 12/28/08 30 2125109 House Mom
33
34
35 Megan 7/22/08 30 2/22/09 --
36 Gretchen Z 9/1108 30 3/1/09
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
3/9/2009
ApUBed Name Admit Days Paid Due Date Note
31 Kelsey 3/25/08 30 2/25/09
32 Ashley 12/28/08 30 3125109 House Mom
33 Izzy 2/19/09 30 3/19/09 -
34
35 Megan 7/22/08 30 3/22/09
36 Gretchen Z 9/1108 30 4/1/09
Deposits
TOTAL COLLECTED:
Notes:
Balboa Recovery Women 30th
4/1 /2009
ApUBed Name Admit Days Paid Due Date Note
31
32 Ashley 12/28/08 30 3125109 House Mom
33 Izzy 2/19/09 30 4/19/09
34 Kate K. 3/11 /09 30 5/1109
3~Megan 7/22/08 30 4/22/09
36 Gretchen Z 9/1108 30 4/1/09
Oeposits
TOTAL COLLECTED:
Notes:
Yes. we did receive the use permit form. There is some information we'd like to clarify, some we may have missed, and
some we might still need. I'll call you tomorrow.
Janet
From: kcullen fmailto:kcullen@oceanrecoyery.coml
Sent: Wed 4/8/2009 8:43 AM
To: Brown, Janet
Subject: Balboa Recovery-addtional question
I'm sorry for the additional email but I did have another question. Along with our RA, we did submit the CUP form and
answered most if not all of the questions in the attached document. Do you have that?
From: "Brown, Janet"
sent: Tuesday, April 07, 2009 6:00 PM
To: kcullen@oceanrecoyery.com
Subject: Balboa Recovery Reasonable Accommodation Requests
Good evening, Kevin.
Attached please find a letter regarding the submitted applications for reasonable accommodation requests for the Balboa
Recovery facilities located at 204 21st Street, 124 30th Street and 3206 West Balboa Boulevard.
We have tentatively scheduled the applications for public hearing on April 30, 2009. As such, we would like to schedule a
meeting wi~h you to discuss the applications at your earliest convenience. Please let me know when you are available to
meet.
Thank you.
Janet Johnson Brown
Associate Planner
City of Newport Beach
(949) 644-3236
j brown@citv.newport-beach.ca.us
2
Exhibit No. 4
Floor Plan
Exhibit No.5
April 30, 2009 Staff Report with Correspondence
from Residents
Brown, Janet
From:
Sent:
To:
Subject:
For the record .
Kiff, Dave
Wednesday, Apri122, 2009 3:13 PM
Brown, Janet; Wolcott, Cathy
Balboa Recovery -124 30th 5t.
From: SHARON FISCHER [mailto:beewife@msn.com]
sent: Wednesday, April 22, 2009 3:11 PM
To: Kiff, Dave
Subject: sober living home at 124 30th st.
Re: Project File No. PA2009-012
Dear Mr. Kiff:
I would like to respond to the Notice of Public Hearing that I received regarding a sober living home at 124
30th St.
I am the owner of property at 111 30th St. The property has been in my family since 1940 so I have a
very personal interest in 30th Street. Since the property became mine 16 years ago, I have noticed a
vast change in the types of occupants of the houses on the street. What used to be owner
occupied houses has become summer and winter rentals. The winter rentals typically are college students
who like to party constantly. There is a lot of alcohol consumed at these houses. My daughter and her
husband live in our duplex and she said that if you had walked down 30th Street last Sunday you would
have seen at least 3 houses playing "beer pong" on the patios. The Newport Beach Police have 30th Street
on their radar they are called so much. In the past, there were also drug deals going down on a fairly
regular basis. The college students are replaced in the summer by summer renters. Once again, there is
a lot of partying and drinking.
As you can see from the above scenario, 30th Street is not conducive to sober living. It is right in the
heart of the "party zone" as anyone from the City of Newport Beach who Is familiar with the area should
know. I would think that these adult resident clients would be better sUited in a house somewhere else in
Newport Beach.
You had Indicated to me in an earlier email that to your knowledge this sober living facility would not be
a court appointed one. You said that one of the conditions that the City applies, if this house is
approved, is that they not take probationers or parolees, or "any government referral". If this were to be
the case, it would raise another set of problems as these residents would not be living at the sober house
voluntarily.
In addition, I am concerned about my property value if I decide to sell the property. I would have to
disclose that there is a sober living home to the buyers.
Thank you for allowing me to voice my opinion.
If you have have any questions, you can call me at (80S) 484-1091.
Sharon Fischer
SENT BY: 0 S S;
t1a,. 20 09 0 5 ;34.
April 27, 2009
714 751 0596; APR ·28 ·09 12:58PM;
PETER S RODGERS PR OPER TY (9 49)631 -2345
TRACI L. RODGERS
107 % Thirtieth S.,...
Newport Beach, Califomla 92663
(714) 7751-0594, FAX (714) 751-0596
A.PR 27 2::1
PAGE 2/2
p.5
Newport Beach Planning Departmen.
City Hall
3300 Newport Blvd. CIW ~;: ;:'i~ "I~: A"CH
Newport Bcoch. Califomia 92658·8915
FAX (949) 644-3229
Project File NO:
Activity No:
Wcation:
Applicant:
PA2009-012
RA2009-002
12430"S_.
Balbo. Recovery,ln<;
Dave Kitf, Assistant City Manager, City of Newport Beach:
10"'" property and 1 reside at 207·207 % Thirtieth Street in Newport Beach. 1 strongly oppose
the U8"'"Oe of a Reaaouabl<l Accommodatioo. Pennit. Permit Number RA 2009-002. for property
located at 124 30" Stroot.
I ...... betieve that. Sober Jjving facility would Il""'tly decrease my property value as well as
mal. it difficult to keep my property rented.
Sincerely.
TrnoiL'~. fU-
-".----------
according to other clients at the property. This is not acceptable in a residential
neighborhood.
4. Constant smoking on both the front porch and balcony which blows into the
adjacent properties and public sidewalks. The excessive secondhand smoke is
more than ODe would expect if the property was a normal duplex. Young
children and the public should not have to be exposed this excessive smoke
going to-and-from the beach. My family and I should not have to be exposed to
this smoke every time we walk pass this property is go to the beach. This is not
acceptable.
5. Balboa Recovery is literally within sight of Albertson's grocery store which
sells alcohol and is within a very short distance to numerous bars and other
restaurants that sell alcohol. Also many of the summer rental properties have
guests and tenants enjoying various alcohol beverages during their summer
vacations and parties. This location wouldn't appear to be the most appropriate
place to have a drug rehab/group home given the nearby temptations.
6. Constant foul language of which can be clearly heard by the surrounding
properties and the general public which has to pass this property going to-and-
from the beach from the public parking lots.
7. Over concentration: Presently there are several woman-on1y rehabs/group
homes on the peninsula and in Newport Beach tbat have been operating legally
with legitimate, licensed programs. It would appear to me that the local
demand is already very well served by these other licensed operators.
8. High traffic to-and-from the property by both the clients and their visitors.
Often transportation vans or cars are double~ parked in the street. This location
only has two garage spaces that mayor may not be used for parking. This area
has extremely limited parking and the parking requirements for this property
may be as great as 12-14 vehicles (12 clients and managers plus transport vans)
The over-concentration and poorly operated rehabs/groups are having a severe impact on
our residential character of our neighborhoods here on the peninsula. Yes, thc residential
neighborboods of the Ncwport Beach peninsula are a bit different than a traditional
neighborhood. Our neighborhood is very divcrsc. However, it is this diversity and the
love for the beach and ocean that makes these neighborhoods very special and unique; this
makes for a strong community.
Tbankyou!
~~---7 ~etb.erholt
949-466-6088
cc: Dave Kiff, Assistant City Manager
Attachments: Exhibits A, B. C
Brown. Janet
From:
Sent:
To:
Subject:
For the record.
Kiff, Dave
Wednesday, April 22, 2009 3:13 PM
Brown, Janet; Wolcott, Cathy
Balboa Recovery· 124 30th 81.
From: SHARON FISCHER [mailto:beewife@msn,com]
Sent: Wednesday, April 22, 2009 3:11 PM
To: Kiff, Dave
Subject: sober living home at 124 30th st.
Re: Project File No. PA2009-012
Dear Mr. Kiff:
I would like to respond to the Notice of Public Hearing that I received regarding a sober living home at 124
30th St.
I am the owner of property at 111 30th St. The property has been in my family since 1940 so I have a
very personal interest in 30th Street. Since the property became mine 16 years ago, I have noticed a
vast change In the types of occupants of the houses on the street. What used to be owner
occupied houses has become summer and winter rentals. The winter rentals typically are college students
who like to party constantly. There is a lot of alcohol consumed at these houses. My daughter and her
husband live in our duplex and she said that if you had walked down 30th Street last Sunday you would
have seen at least 3 houses playing "beer pong" on the patios. The Newport Beach Police have 30th Street
on their radar they are called so much. In the past, there were also drug deals going down on a fairly
regular basis. The college students are replaced in the summer by summer renters. Once again, there is
a lot of partying and drinking.
As you can see from the above scenario, 30th Street is not conducive to sober living. It is right in the
heart of the "party zone" as anyone from the City of Newport Beach who is familiar with the area should
know. ] would think that these adult resident clients would be better suited in a house somewhere else in
Newport Beach.
You had indicated to me in an earlier email that to your knowledge this sober living facility would not be
a court apPointed one. You said that one of the conditions that the City applies, jf this house is
approved, is that they not take probationers or parolees, or "any government referral". If this we re to be
the case, it would raise another set of problems as these residents would not be living at the sober house
voluntarily.
In addition, I am concerned about my property value if I decide to sell the property. I would have to
disclose that there is a sober living home to the buyers.
Thank you for allowing me to voice my opinion.
If you have have any questions, you can call me at (805) 484-1091.
Sharon Fischer
SENT BY: 0 S Sj
Mar 20 09 05 :34.
April 27, 2009
714 751 0596;
PETER S RODGERS PROPER TV
APR-2S-09 12:5SPMj
1949)63 1 -2345
TRAC! L. RODGERS
207 Yz 'l'birtieth Street
Newport Beach, California 92663
(714) 7751.0594. FAX (714) 751.os9'6
APR 27 Z~;3
PAGE 2/2
p.5
Newport Beach Planning Department
City Hall
3300 Newport Blvd. CI1Y Of I~~dhii utrlCH
Newport Beach, California 92658-8915
FAX (949) 644-3229
Project File NO:
Activity No:
Location:
Applicant:
PA2009-012
RA2009-002
124 30", St=t
Balboa RecoveIY. Inc
Dave Kiff. Assistant City Manager. City of Newport Beach:
I own property and I reside at 207-207 Y1 Th.irtieth Street in Newport Beach. I strongly oppose
the i~s"ftooe of a Reasonable Accommodation Permit. Pennit Number RA 2009-002, fOJ' property
located '" 124 30" Street.
I also believe that . Sober Uving facility woUld greatly decrease my property value as well as
rnak.e it difficult to koep my property rented.
Sincerely.
T=iL'~_ rU--
-_ ... _-----------
Mar 20 as OS:50a PETER S RODGERS PROPERTY {S4S1631-2345
PETER S. RODGERS
42550 Granado Place
Temecula, California 92590
(949) 310·5476, FAX (951) 699·3926
April 27, 2009
Newport Beach Planning Department
City Hall
3300 Newport Blvd.
Newport Beach, California 92658·8915
Project Fi le NO:
Activity No:
r ,ocation:
Applicant:
PA2009·0 12
RA2009·002
1'24 30· Street
Balboa Recovery, Inc
Dave Kiff, Assistant City Manager, City of Newport Beach:
lawn property at 207-207 Yl Thirtieth Street in Newport Beach. I strongly oppose the issuance
of a Reasonable Acconunodation Permit, Permit Number RA 2009-002. for property located at
12430· Street.
In past years, 1 rented to people from Sober Living groups and also employed several of the men.
Neither scenario worked out. Alcoholism is an illness and the men always returned to their
drinking habits .
. :.: __ '.,,-,, ... :. "~ .... " i.; linen u::;,sucialcu with parties and drinking. I don't think this is a good
environment for a person trying to recover from alcobolism ... the temptation to return to old
habits would be too great.
1 also believe that a Sober Living facility w0!l!d ·;reatly d!!!:~~$~ "'''y pr-::pcrty '-,due a!:> '.';dl 1.1::;
make it difficult to keep my property rented.
Sincerely,
~-<'~
Peter S. Rodgers
p.2
Mar 20 09 09:50a PETER S RODGERS PROPERTY (949)631-2345
April 27, 2009
ROSEMARY RODGERS
42550 Granado Place
Temecula, California 92590
(949) 310-5476, FAX (951) 699-3926
Newport Beach Planning Department
City Hall
3300 Newport Blvd.
Newport Beach, California 92658-8915
FAX (949) 644-3229
Project File NO:
Activity No:
Location:
Applicant:
PA2009-0l2
RA2009-002
12430· Street
BaJboa Recovery. Inc
Dave Kiff. Assistant City Manager, City of Newport Beach:
60al L 0 Mdlf
I own property at 207-207 Y: Thirtieth Street in Newport Beach. I strongly oppose the issuance
of a Reasonable Accommodation Pcnnit, Pennit Number RA 2009-002. for property located at
124 30m Street
In past years. I rented to people from Sober Living groups and also employed several of the men.
Neither scenario worked out. Alcoholism is an illness and the men always returned to their
drinking habiL<;;.
The beach area is often associated with parties and drinking. I don't think this is a good
envirorunent for a person trying to recover from alcoholism ... the temptation LO return to old
habits would be too great.
I also believe that a Soher Living facility would greatly decrease my property value as well as
make it difficult to keep my property rented.
p. 1
according to other clients at the property. This is not acceptable in a residential
neighborhood.
4. Constant smoking on both the front porch and balcony which blows into the
adjacent properties and public sidewalks. The excessive secondhand smoke is
more than ODe would expect if the property was a Donna! duplex. Young
children and the public should not have to be exposed this excessive smoke
going to~and-from the beach. My family and I should not have to be exposed. to
this smoke every time we walk pass this property is go to the beach. This is not
acceptable.
5. Balboa Recovery is literally within sight of Albertson's grocery store which
sells alcohol and is within a very short distance to numerous bars and other
restaurants that sell alcohol. Also many of the summer rental properties have
guests and tenants enjoying various alcohol beverages during their summer
vacations and parties. This location wouldn't appear to be the most appropriate
place to have a drug rehab/group home given the nearby temptations.
6. Constant foul language of whieh can be clearly heard by the surrounding
properties and the general public which has to pass this property going to-and-
from the beach from the public parking tots.
7. Over concentration: Presently there are several woman-only rehabs/group
homes on the peninsula and in Newport Beach that have been operating legally
with legitimate, licensed programs. It would appear to me that the local
demand is already very well served by these other licensed operators.
8. High traffic to~and-from the property by both the clients and their visitors.
Often transportation vans or cars are double-parked in the street. This location
only has two garage spaces that mayor may not be used for parking. This area
has extremely limited parking and the parking requirements for this property
may be as great as 12-14 vehicles (12 clients and managers plus transport vans)
The over·concentration and poorly operated rehabs/groups are having a severe impact on
our residential character of our neighborhoods here on the peninsula Yes, the residentiru
neighborhoods of the Newport Beach peninsula are a bit different than a traditional
neighborhood. Our neighborhood is very diverse. However, it is this diversity and the
love for the beach and ocean that makes these neighborhoods very special and unique; this
makes for a strong community.
Thank you!
~~---7 ~etberholt
949-466-6088
cc: Dave Kiff, Assistant C.ity Manager
Attaclunents: Exhibits A, S, C
I
I
Attachment No.3
May 20,2009 Hearing Transcript
PUBLIC HEARING -5/20/2009
1
2
3
4
5
6
7 Public hearing was taken on behalf of
8 the City of Newport Beach at 3300 Newport Boulevard,
9 Newport Beach, California, beginning at 4:00 p.m., and
10 ending at 5:47 p.m., on Wednesday, May 20, 2009, before
11 LAURA A. MILLSAP, RPR, Certified Shorthand Reporter No.
12 9266.
13
14
15
16
17
18
19
20
21
22
23
24
25
PRECISE REPORTING SERVICE
(800) 647-9099
2
PUBLIC HEARING -5/20/2009
1 APPEARANCES:
2
3 For The City of Newport Beach:
4 RICHARDS, WATSON, GERSHON
BY: PATRICK K. BOBKO, ESQ.
5 355 S. Grand Avenue, 40th Floor
Los Angeles, CA 90071-3101
6 (213) 626-8484
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CITY OF NEWPORT BEACH
BY: CATHERINE WOLCOTT, DEPUTY CITY ATTORNEY
DAVE KIFF, Assistant City Manager
GERALD GILBERT, Associate Planner
SHIRLEY OBORNY, Assistant City Clerk
3300 Newport Boulevard
Newport Beach, CA 92658-8915
(949) 644-3002
PRECISE REPORTING SERVICE
(800) 647-9099
3
PUBLIC HEARING -5/20/2009
1 NEWPORT BEACH, CALIFORNIA; WEDNESDAY, MAY 20, 2009
2 4:00 P.M. -5:47 P.M.
3
4 MR. ALLEN: Then let's commence the proceedings
5 for today, Wednesday, May 20, 2009, 4 p.m. Are we fairly
6 bound by the 6 p.m. time limit to --
7 MR. KIFF: That's a hope-for goal. I don't
8 know that I have any conflict afterwards, but we hope to
9 meet that.
10 MR. ALLEN: We should be able to move through
11 rapidly. First item is signing of Resolutions of
12 Approval for 1115 West Balboa and then 204 21st Street.
13 Do you want to do --do we want to do these now
14 or--
15 MR. KIFF: I think it's fair to do them now.
16 I'll present the Resolutions to you, at least
17 electronically, with the --and then if you had any type
18 of suggestion as to changes, and I'll summarize some of
19 the changes that you had directed after you saw the draft
20 version that you saw on the Web site. So let's see if it
21 will start up here. So I'm going to jump right down to
22 the conditions.
23 MR. ALLEN: That's fine.
24 MR. KIFF: One thing we did at your urging was
25 to move one of the more operative sections of the
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PUBLIC HEARING 5/20/2009
1 conditions up to the top, where it speaks to the number
2 one condition would be to grant the Use Permit for a
3 limited occupancy of 18 resident client beds, and that no
4 more than 18 folks can live there at anyone time.
5 Continuing down through I'm just going to
6 focus on things that may have been changed.
7 The quiet hours are unchanged, 9 p.m. to 8 a.m.
8 At the last hearing, we talked about changing
9 the nuisance language to say that the violations had to
10 be corrected within seven days, or that the City would be
11 contacted to implement a plan in accordance with the
12 Code, instead of a mutually agreed-upon time line.
13 We added a Section 26, "Confirmation of
14 Resident Disability," that all clients of the facility
15 shall be classified as disabled.
16 We did modify upon your recommendation,
17 Mr. Allen, a little bit of 27, and say that "an increase
18 or decrease in on-site staffing and an increase in
19 physical capacity of the facility could charge --could
20 cause a review of the amendment or issuance of a new Use
21 Permit."
22 And then we have proposed language in Section
23 H, which speaks to how ownership may change, and
24 basically that "the Planning Director could determine
25 that a change in facility management or facility
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1 ownership or a change in the population served would
2 require a new Use Permit or an amendment."
3 Again, reflecting the concept that this Use
4 Permit does run with the land, and that they can change
5 ownership as long as the new owner is an entity
6 competent with a demonstrated competence in operating
7 such a facility. And again, this is a licensed facility,
8 so that requires a review by the State.
9 In the side property wall, a pony wall,
10 we --staff agreed -I agreed with Ocean Recovery's
11 concern that they'd make a good faith effort to complete
12 that within 60 days. They are concerned that they may
13 not get a Building Permit out of our Building Department
14 within that time line.
15 And then that summarizes the proposed changes
16 to that Resolution.
17 MR. ALLEN: I think you also added a "Whereas"
18 that addressed the City Council's determination on appeal
19 that misrepresentations or misleading testimony be
20 considered.
21 MR. KIFF: Yes. I have that close to being up
22 on the board now. It discusses --involves a little bit
23 of the section "Whereas," and then the operative section
24 that we're referring to, Mr. Allen, is the third
25 "Whereas," where they state that,
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PUBLIC HEARING -5/20/2009
1 "the Hearing Officer has evaluated and
2 weighed the testimony from the February/May
3 hearings. While differences of opinion were
4 expressed, and on occasion the Applicant
5 responded to specific allegations by saying the
6 Applicant was not aware of the circumstances,
7 those differences did not constitute grounds to
8 change the decision to grant the permit,
9 particularly in view of the fact that the
10 conditions of approval addressed the issues."
11 MR. ALLEN: It's my determination it's very
12 difficult to make determinations on the veracity of
13 statements made by people that corne up to the microphone,
14 when they are not under oath, and when there's no ability
15 to cross-examine.
16 And so, I felt that the best position the
17 Hearing Officer can take is to weigh the credibility of
18 the individual as he or she sees them there, and if
19 there's direct controverted testimony, then somehow that
20 has to be weighed, and that's essentially what I did
21 here.
22 And I think there was as much miscommunication
23 as there was actual misleading or falsehoods stated in
24 the testimony at that --particularly at that February
25 hearing. So that's why I drafted that "Whereas" the way
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PUBLIC HEARING 5/20/2009
1 I did. And I appreciate you inserting it, so that way,
2 that Resolution is fine with me, and I'll sign it at the
3 conclusion of the hearing.
4 MR. KIFF: Okay. Let's move to the next one,
5 then.
6 MS. CURRAN: Is there any public comments?
7 MR. ALLEN: Is there - -
8 MR. KIFF: This is not a public hearing item.
9 MS. CURRAN: When will public comment be, then?
10 MR. KIFF: At the end.
11 Let's move to the 204 21st Street Ordinance.
12 This is now on the screen before you. So just as a
13 reminder to the folks in the room, the Hearing Officer
14 directed that an application for reasonable accommodation
15 be approved, and a Resolution in accordance with that
16 application with conditions be prepared and presented
17 back.
18 So I'm going to jump down to the conditions.
19 Again, in this case, remember, reasonable accommodation
20 tests are different from the Use Permit tests. The one
21 that we just looked at was a Use Permit hearing. This is
22 a reasonable accommodation.
23 Highlighted in yellow, Mr. Allen, are the
24 variations from the one posted on the Web site. So you
25 corrected a typo there in Section 1.
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1 We're getting in the conditions of approval.
2 The first item is a "Grant of Reasonable Accommodation to
3 occupy the building inclusive of both units for six
4 disabled persons and one on-site resident manager. The
5 Operator shall execute an affidavit declaring that the
6 clients are disabled persons."
7 Continuing down, you and the Applicant at the
8 last hearing discussed vehicles and parking. There are
9 no changes to this draft, but just for the audience's
10 benefit, "the facility can have a maximum of three
11 vehicles associated with the use, keeping two of the
12 spaces clear and available for parking for staff and
13 resident clients. And then one space shall be designated
14 for use by the manager. At most, one other client in the
15 facility may have a vehicle and park on the street."
16 We did add a section that is in the draft.
17 "The client move-in and move-out should be accomplished
18 in such a manner that traffic on 21st Street is not
19 blocked, nor can area driveways or alleys be blocked."
20 Continuing down, in 16, I corrected the problem
21 we had with our nuisance language. This is similar to
22 the language now in the Ocean Recovery one that says that
23 if they can't correct it within seven days, they can
24 contact the City to discuss an alternative time line
25 consistent with our Codes.
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1 We reflected in condition 21 that the physical
2 capacity of the building, if it went up or down, would
3 require an amendment or a new Use Permit. That was a
4 suggestion of the Hearing Officer.
5 And then again, if it changed in the client
6 base such that persons living there are no longer
7 classified as disabled or verified to be disabled,
8 because that's the essence of reasonable accommodation.
9 So with that, Mr. Allen, these the proposed
10 Resolutions presented to you by staff.
11 MR. ALLEN: All right. And that one, as
12 modified, is now ready for my signature as well, so we'll
13 do that at the end --
14 MR. KIFF: Okay.
15 MR. ALLEN: of the hearing.
16 All right. So that takes care of agenda item
17 number one.
18 Item number two, Reasonable Accommodation for
19 Balboa Recovery at 124 30th Street. Staff report on that
20 one, please.
21 MR. KIFF: Mr. Allen, agenda item two is a
22 Reasonable Accommodation Hearing for Balboa Recovery's
23 facility at 124 30th Street. As we have in the past
24 hearings, I'll provide a brief background on the
25 Ordinance, and then we'll discuss briefly the
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PUBLIC HEARING -5/20/2009
1 applications. Actually, we'll focus on the 124 30th
2 Street application.
3 The Applicant is invited to make remarks.
4 Public hearing is opened. Comments there are limited to
5 three minutes. Hearing Officer closes the hearing. The
6 Applicant can return. Question and-answer time. The
7 Hearing Officer can approve reasonable accommodation, can
8 deny it, or can continue the reasonable accommodation to
9 a date certain.
10 And then immediately after that, we'll move to
11 the with time available, we'll move to the Balboa
12 Recovery facility at 3206 West Balboa.
13 So again, this is a Reasonable Accommodation
14 Hearing under our Municipal Code, which is Chapter 20.91.
15 And I should say this is more specific to Chapter 20.98,
16 but it's related to Use Permits in residential districts,
17 so --because the Applicant had asked for a reasonable
18 accommodation from the Use Permit requirement.
19 And again, most residential care facilities in
20 the community had to apply by May 22nd of 2008 for a Use
21 Permit. A reasonable accommodation may be requested to
22 that, and that's what Mr. Cullen has done. And those
23 requests go before a Hearing Officer at a public hearing
24 and can be appealed to the City Council. This is the
25 public hearing.
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1 Let us speak briefly and maybe Gilbert and I
2 will tag team a little bit about the application.
3 Gilbert, if you'd like to briefly summarize what is
4 proposed for 124 30th Street?
5 MR. GILBERT: Absolutely, Mr. Kiff.
6 Your Honor, the item before you now is a
7 Reasonable Accommodation Application specifically for
8 relief from the requirements of the Newport Beach
9 Municipal Code section 20.10.020, which is to allow the
10 continued operation of existing sober living homes for up
11 to 10 female resident adults and two resident managers,
12 both units of the duplex.
13 The facility is located in the R2 zone where
14 such uses are not permitted, and the Applicant is
15 requesting an accommodation from the requirements that
16 sober living facilities are only permitted in the MFR
17 districts with the approval of the Use Permit.
18 A little description of the facility is that
19 the subject site is situated on the south side of 30th
20 Street, approximately 50 feet from the intersection of
21 30th Street and West Balboa Boulevard. As I mentioned,
22 the property is zoned R2, which is two-family
23 residential, and is developed with a two-story duplex
24 with an attached two-car garage. Surrounding properties
25 including single --single-family and two-residential
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1 uses and that are primarily rental and owner-occupied
2 propert s.
3 There is a group residential use that began
4 operations without complying with Ordinance 2008 05, and
5 that's located at 127 29th Street, which is in close
6 proximity to this particular operation, and that
7 particular operation is subject to abatement.
8 The property at 124 30th Street is owned by
9 Ocean Number One, LLC, Balboa Recovery, Incorporated.
10 And its ownership operates a sober living facility for
11 adults in recovery from alcohol and/or drug abuse and,
12 again, in both of the units.
13 The facility houses up to 10 resident clients
14 and two resident managers. And again, it's restricted to
15 females only. There are five residents and one resident
16 manager in each of the units. In addition, there's no
17 one under the age of 18 permitted to reside in the
18 facility.
19 The Applicant has stated that the residents are
20 referred to the facility through Ocean Recovery, although
21 there is no official affiliation between Balboa Recovery
22 and Ocean Recovery. Balboa Recovery also operates two
23 similar facilities. One will be of the subject matter
24 today --actually both of them were done today. One is
25 at 3206 West Balboa and then 204 21st Street.
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1 The Applicant has stated that both units have
2 been utilized as a sober living facility since October of
3 2006. To date, City Code Enforcement has received no
4 complaints about the facility; however, included in the
5 staff report are exhibits --are exhibits that include
6 complaints from nearby property owners. The complaints
7 are general. Others are very specific to smoking,
8 profanity and parking problems.
9 At the previous hearing for 204 21st Street, an
10 adjacent resident or nearby resident alleged --brought
11 to the staff's attention that a fight occurred involving
12 residents at 124 30th Street. Staff had asked for the
13 police report, and discovered that the fight that
14 occurred had actually involved occupants of 125 30th
15 Street, and that no clients of this facility were
16 involved in the fight, and that was indicated in the
17 report.
18 One more to the description of the operation
19 itself. I think these matters are, at times, redundant
20 but very important to framework the project itself or to
21 the facility itself.
22 There's two units. Unit A is an upstairs unit
23 and contains three bedrooms and accommodates two beds in
24 each room. Unit B is a ground level unit, which has
25 three bedrooms and accommodates six beds, two beds in
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1 each room. And that's illustrated in Exhibit 4 of the
2 staff report. There's a resident manager, and each one
3 shares a bedroom with a resident client.
4 Individual clients themselves reside at the
5 facility under the written agreement with the Operator,
6 and are subject to a set of house rules, which include
7 abstinence from alcohol and drugs, drug testing as
8 requested by the resident manager, and attendance at
9 l2-Step meetings.
10 Under the house rules, residents are also
11 required to abide by curfews and quiet hours established
12 by the facility, to refrain from smoking in the house,
13 refrain from racist, sexist or foul language, maintain
14 and clean the dwelling unit, and complete assigned
15 chores.
16 Residents are required to be employed, actively
17 seeking employment, or attending school full time. All
18 residents are required to be out of the dwelling between
19 the hours of 8:30 in the morning until 5 p.m. in the
20 afternoon. Exceptions can be made for residents who are
21 sick, work nights, or have permission from the house
22 manager of any circumstances.
23 Parking itself is provided in the building in a
24 two-car enclosed garage. That's two spaces.
25 Staffing. There's one resident manager in each
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1 of the units.
2 Clients' stays range from 90 days to 545 days,
3 with an average typical stay of about 300 days, or 10
4 months. And again, clients' stays are truly dependent on
5 the individual's progress.
6 Curfew and quiet hours for residents are 10
7 p.m., Sunday through Thursday, and 12 a.m. to 8 a.m. on
8 Friday and Saturday. These are hours that are typical to
9 these uses that have been heard before you.
10 TV's and stereos can only be played at
11 reasonable levels. And after 9 p.m., headphones must be
12 used. So it's built in to the operations of the facility
13 of these quiet hours for adjacent uses.
14 Treatment services. There are no treatment
15 services provided on-site. However, in the application,
16 the Applicant has stated that for the first 90 days after
17 admission, residents are required to --at least to
18 attend at least one 12-Step meeting every day.
19 And after 90 days, residents are required to
20 attend at least four 12-Step meetings a week. In
21 addition to the 12-Step program, residents are also
22 required to attend daily house meetings, as well as
23 attend required meetings that organization sets up with
24 Balboa Recovery.
25 Transportation. Residents are permitted to
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1 have personal vehicles while residing at the facilities
2 or use public transportation; however, the facility
3 having only two spaces, those spaces would need to be
4 shared by resident clients.
5 There's no overall transportation provided by
6 the facility Operator. The use and parking arrangement
7 of vehicles must receive approval by the corporation as
8 well as the resident manager. And again, that will be
9 one of the items for discussion during this public
10 hearing as well.
11 Deliveries, the only delivery that comes to the
12 facility is bottled water. Residents are required to be
13 responsible for their own groceries and supplies.
14 Medical waste is disposed and complies with
15 Newport Beach Municipal Code requirements.
16 Now, I'd like to turn over this part of the
17 presentation to Catherine Wolcott, who will go more into
18 the technical analysis of the application.
19 MS. WOLCOTT: Thank you. Catherine Wolcott,
20 Deputy City Attorney.
21 If it's all right with Mr. Kiff and with the
22 Hearing Officer, I've combined the PowerPoint
23 presentation of the reasonable accommodation portion of
24 it to address both 124 30th Street and 3206 West Balboa
25 Street.
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1 So don't want to confuse any of the issues, but
2 for the members of the public who have already and
3 staff who have already heard this, it is going to be long
4 as it is. The only thing more painful than having to sit
5 through a 30 page PowerPoint presentation is having to
6 give it twice. Thank you.
7 For those of you who have attended these
8 hearings before, you already know the definition of
9 reasonable accommodation and the requirement under the
10 Federal Fair Housing Act.
11 The requirement under the Federal Fair Housing
12 Act that cities and housing providers make reasonable
13 accommodations from their standard rules, policies and
14 practices when the accommodations are necessary to afford
15 a handicapped person equal opportunity to use and enjoy a
16 dwelling.
17 And in the case of McGary V. Portland, the
18 Court emphasized that "the Court had repeatedly
19 interpreted this language as imposing an affirmative duty
20 on landlords and public agencies." Therefore, this is
21 not something that the City has the option of
22 considering. If a request is reasonable and necessary,
23 the City has an affirmative duty to grant it.
24 The FHA requires cities to make exceptions from
25 the usual rules, policies and practices when a request
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1 meets three requirements:
2 One, the request is made on behalf of the
3 disabled individual;
4 Two, the request is reasonable;
5 And three, the request --the exception that is
6 requested or the accommodation is necessary to afford a
7 disabled individual an equal opportunity to use and enjoy
8 the dwelling. And that's codified in 42 U.S. Code
9 Section 3604(f) (3) (B).
10 So we look at whether or not a request is made
11 by disabled individual, whether the request is
12 reasonable, and whether the request is necessary.
13 The cases that have interpreted the
14 reasonableness prong of the analysis have stated that
15 requests are to be considered unreasonable if granting
16 the request would either impose an undue administrative
17 or financial burden on the City or if it would result in
18 a fundamental alteration in the nature of a City's
19 program.
20 A fundamental alteration has been described in
21 court cases as undermining the basic purpose which the
22 requirement seeks to achieve.
23 Therefore, when we are looking at whether or
24 not an accommodation request is reasonable, we look at
25 what specifically are they asking for an exception from.
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1 And if that exception is granted, does it undermine the
2 purpose that that program was put in place to achieve in
3 the first place? And as established in case law, all
4 reasonable accommodation requests are analyzed on a
5 case-by-case basis.
6 When the request is not reasonable, our
7 analysis is not permitted to stop there. The Department
8 of Justice/Department of Housing and Urban Development
9 has issued a joint statement and has reiterated with the
10 City directly that when a government entity refuses to
11 grant a requested accommodation because it is, under
12 their determination, that request is not reasonable, that
13 request would undermine some fundamental purpose of the
14 Code, then they have to get engaged in an interactive
15 process with the Applicant and discuss whether there are
16 alternate accommodations that could meet the requester's
17 disability-related needs.
18 We focus on the needs of the disabled
19 individuals residing in the house. If the alternative
20 accommodation should meet the needs and it is reasonable,
21 then the government entity is required to grant it.
22 On the necessity prong of the analysis, we look
23 at whether the accommodation is necessary. And the very
24 simplest part of the analysis begins with, would the
25 accommodation allow a disabled individual to live in the
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1 dwelling? Does it have anything to do with the disabled
2 individual's ability to live in the dwelling? Would a
3 disabled individual be unable to live in the dwelling if
4 the accommodation is not granted?
5 And then you get into a more complex analysis.
6 Is there a direct link between the accommodation and the
7 requirement equal opportunity, which the Federal law
8 specified is required?
9 The cases that have interpreted the direct link
10 between the accommodation and equal opportunity have
11 focused on two specific areas where, if an Applicant
12 proves them, he can demonstrate necessity.
13 First is whether or not the required
14 accommodation is necessary to make the facility
15 financially viable, or the financial viability prong of
16 the analysis;
17 And two, does the required accommodation
18 provide a therapeutic benefit for the disabled residents?
19 In this case, the Applicant has requested
20 exemption from the restrictions of the Municipal Code
21 which requires that residential care general unlicensed
22 and residential care small unlicensed facilities be
23 located in MFR zones with the Use Permit only.
24 At 124 30th Street, the Applicant requested to
25 continue operating their facility in its current R2
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1 location where the Applicant reports they have been
2 established since 2006 with current 10 residents and two
3 staff members.
4 At 3206 West Balboa, they request to continue
5 operating the facility at their current R2 location with
6 eight residents and two staff. Currently, the Applicant
7 is operating is occupying both units of both of the
8 duplex.
9 For both of these facilities, the Use Permit
10 application deadlines have passed. They would have been
11 qualified to apply for a Use Permit had they done so
12 within the period of time specified by the Ordinance, but
13 they did not do so.
14 Staff recommendations were --for 124 30th
15 Street, our initial recommendation, which we discussed
16 with the Applicant, is in the second half of that first
17 paragraph in the PowerPoint, which is to grant the
18 accommodation with conditions.
19 And those conditions included no more than six
20 female clients, plus one manager, either operating both
21 units of the duplex or occupying one unit of the duplex
22 with a single housekeeping unit in the other duplex -in
23 the other unit, excuse me.
24 The Applicant indicated that this was not going
25 to be financially feasible; however, the Applicant was
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1 willing to consider an alternate accommodation, which was
2 to enter an abatement agreement with the City, close that
3 particular location within a certain period of time, and
4 then the Applicant would be likely to apply for a
5 reasonable accommodation for six residents in an
6 alternate location.
7 The City staff report --because of the
8 Applicant's position, the City report was drafted for
9 denial of the accommodation, with the one-year abatement
10 period, which the staff discussed with the Applicant.
11 However, for purposes of the analysis, just to make it
12 clear on the record, that the staff's initial
13 recommendation was not denial.
14 We will also do the analysis since the
15 analysis for 124 30th Street and the analysis for 3206
16 West Balboa would be the same if we --with the
17 recommendation of six in a limitation of six clients
18 at those locations. I went ahead and did the analysis
19 for that in this presentation as well.
20 For 3206 West Balboa, the staff recommendation
21 is to grant the accommodation with conditions. And those
22 conditions include no more than six male clients, with
23 one resident on-site manager, either occupying two units
24 of the building, or occupying one unit of the building
25 with a single housekeeping unit in the other.
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1 The first portion of the analysis is, is the
2 Applicant's request necessary? Is it necessary to afford
3 a disabled individual an equal opportunity to use and
4 enjoy a dwelling?
5 One of the Ninth Circuit cases that reviewed
6 this issue framed the question as, does the facility
7 require the requested accommodation at the requested
8 population level to achieve financial viability and a
9 supportive recovery environment?
10 The Applicant has not because of the staff's
11 recommendation was a limitation of six, we would consider
12 the Applicant's request for anything more than six to be
13 requesting a larger population. And in that instance, we
14 would require evidence of, you know, financial need or
15 therapeutic benefit in order to consider granting at the
16 higher population level.
17 The Newport Beach Municipal Code in the
18 reasonable accommodation section sets forth four factors
19 which the City must consider to determine necessity.
20 One is whether an accommodation will
21 affirmatively enhance the quality of life of individuals
22 with a disability. This goes directly to whether or not
23 granting the accommodation would confer a therapeutic
24 benefit on the individuals.
25 Two, whether the disabled individual would be
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1 denied an equal opportunity to enjoy the housing type of
2 their choice without the accommodation;
3 Whether the accommodation is necessary for
4 financial viability;
5 And whether the existing supply of facilities
6 of a similar nature and operation is sufficient to
7 provide individuals with an equal opportunity to live in
8 a residential setting in the community.
9 The staff analyzed the reasonableness and the
10 necessity of this request with regard to the following
11 categories:
12 Current residents of the City --excuse me,
13 facility;
14 Prospective residents of the facility. And the
15 prospective residents we analyzed at the requested
16 population, which is 10 residents, two staff at 124 30th
17 Street, and six residents --oh, and eight residents and
18 two staff at 3206 West Balboa, and at the staff's
19 recommended population level, which is six residents in
20 one dwelling unit or three residents in each dwelling
21 unit.
22 The determination of staff as to the current
23 residents, the request was necessary and it was
24 reasonable. There are people, individuals, in recovery
25 currently living in both units of both of these
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1 facilities. And they --because the facility is
2 currently subject to abatement, they would --if the
3 facility were abated, they would lose their current
4 housing, and that answered the necessity prong.
5 As far as reasonableness was concerned, the
6 City does not want to unreasonable does not want to
7 undermine some fundamental purpose of the Ordinance to
8 allow the individuals who are there in recovery currently
9 to finish their current stay, their planned stay, and to
10 allow the facility to become smaller with attrition of
11 residents as they graduated.
12 The Applicant has not submitted evidence that
13 it required more than six residents to be financially
14 viable at 3206.
15 The Applicant did not submitted evidence as to
16 124 30th Street, but he had stated that they need more
17 than six for financial viability and has stated his
18 willingness to close that facility as a result, rather
19 than try for a larger size.
20 The Applicant has not submitted evidence that
21 it requires more than six residents for therapeutic
22 benefit.
23 On the portion of the Municipal Code that
24 allows us to consider alternate housing opportunities,
25 I've provided an update on the availability of alternate
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1 facilities of a similar nature.
2 As of yesterday, that list on the PowerPoint
3 slide before you is the currently approved sober living
4 beds that are currently available within the City. And
5 this does not mean that they are subject to abatement,
6 and this does not mean that they are licensed facilities.
7 These are beds in sober living that have either been
8 grouped under a development agreement or approved through
9 reasonable accommodation.
10 When we are considering facility size, we also
11 look at the case of Bryant Woods Inn, which we've
12 discussed in hearings before. Bryant Woods Inn was a
13 facility operator, I believe, in an Alzheimer's home. It
14 was established in the county that permitted eight by
15 right --eight residents by right and wished to expand
16 its facility to 15 residents.
17 The County denied the request. And the primary
18 reason they denied that was that there no evidence
19 presented that increasing from eight to 15 was necessary
20 to allow disabled individuals an opportunity to reside in
21 the community in similar facilities, and they did carry
22 their burden of showing that the accommodation was
23 necessary to provide a therapeutic benefit either.
24 Some of the significant factors the court
25 considered were that there were 30 similar facilities
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1 operating in the jurisdiction with vacancies, and the
2 plaintiff led to present evidence that expansion was
3 necessary for its financial viability or for the
4 therapeutic benefit discussed.
5 And the final quote from Bryant Woods Inn
6 before you is that "If the position were taken to its
7 limit, it would be entitled to construct a lO-story
8 building housing 75 residents, on the rationale that the
9 residents had handicaps."
10 Obviously, that's not what the Applicant is
11 requesting today, but that is the reasoning that we
12 consider when we look at the size of the facility
13 requested versus the size recommended.
14 Other considerations. As we've said as to
15 current residents, current residents would lose housing
16 upon abatement.
17 As to prospective residents -these are
18 considerations with relation to size as well --future
19 residents would lose their ability to live in this duplex
20 but not in other existing duplex facilities that offer
21 sober living.
22 As to prospective residents as the level
23 proposed by staff of six, that is --there are limited
24 but possibly available alternate opportunities to live in
25 a small sober living environment.
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1 We discussed the California Building Code
2 considerations when an Applicant exceeds the size of six
3 in a building. As we've discussed before, when we're
4 looking at the Building Code, there are designations that
5 sound similar to the Zoning Code designations, but they
6 mean very different things.
7 An RF3 in the Zoning Code might mean
8 multi-family.
9 An R3 in the California Building Code means
10 single-and two-family occupancies. So single family
11 only or a duplex.
12 An R4 is a recovery facility occupancy that has
13 seven or more in a building.
14 And R3.1 is a licensed recovery facility
15 occupancy that has six or less in a building.
16 But I would emphasize that State law
17 establishes the construction standards on life safety
18 requirements for these different occupancy types based on
19 their operating characteristics and the needs of their
20 residents.
21 And the State has liked at the particular use
22 patterns of the particular occupancies and the needs of
23 the residents who would be likely --being one of those
24 occupancies, and they have adopted life
25 safety --construction life safety requirements for the
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1 protection of those particular types of occupancies which
2 the State believes is appropriate.
3 Moving to the analysis of the reasonableness
4 prong. When we look at whether a request is reasonable,
5 there are a number of factors which Newport Beach
6 Municipal Code allows us to consider.
7 Whether the accommodation would fundamental
8 alter the character of the neighborhood;
9 Whether the accommodation would result in a
10 substantial increase in traffic or insufficient parking;
11 Whether granting the accommodation would
12 substantially undermine any expressed purpose for the
13 General Plan or Specific Plan,
14 And whether the accommodation would create an
15 institutionalized environment.
16 The required findings in the Municipal Code.
17 If you look at whether or not the granting the request
18 would impose an undue financial or administrative burden
19 on the City.
20 And in this case, in the case of both
21 facilities, the answer was no, it would not, because we
22 have not received -prior to noticing this facility, we
23 had not received any complaints regarding the facility
24 from members of the public. So we had no indication that
25 there has ever been any administrative burden in the
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1 past.
2 In our dealings with the Applicant in the Use
3 Permit or, excuse me, the reasonable accommodation
4 application process, the Applicant has been forthcoming
5 and cooperative, and has not --we have no reason to
6 believe that that pattern will change; therefore, we do
7 not believe that continuing to deal with the Applicant
8 will create an undue administrative burden or financial
9 burden.
10 Would granting the request result in a
11 fundamental alteration in the nature of the City's
12 program? This is a little more complex analysis.
13 First, we look at two aspects of what the
14 Applicant was asking for. They have requested to be
15 allowed to continue a use in an R2 zone, and they have
16 requested the ability to continue to use in that zone
17 without the Use Permit which would be required.
18 So would allowing the use to continue in the R2
19 zone undermine the basic purpose the R2 zoning seeks to
20 achieve?
21 And two, would allowing the use to continue
22 without a Use Permit undermine the basic purpose which
23 the Use Permit requirement seeks to achieve?
24 To look at the purpose of the R2 zoning first
25 and see whether or not that is undermined, we look at
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1 purposes stated in the Municipal Code.
2 Municipal Code said that for R2 uses, the
3 purpose is to provide areas for single-and two-family
4 residential use. And the Planning Department reports
5 that these are medium to high density uses, depending on
6 the location. I believe that in the Newport Peninsula
7 area, it's medium.
8 MFR, to provide for single-, two-and
9 multi-family residential uses, medium to high density.
10 At the staff's proposed level of density, which
11 would be six residents in one or two duplex units, a
12 medium level of density would be achieved; therefore, it
13 was staff's determination that conditioned under the
14 condition of having six residents in recovery at the
15 facility, there would not be an undermining of the R2
16 Zoning Code.
17 Purpose of the Use Permit. We look at Use
18 Permit factors, not because the Applicant is applying for
19 the Use Permit, but because we have to look for the
20 purposes of the Use Permit and whether or not allowing an
21 Applicant to continue, even with conditions, would
22 undermine the purposes of that Use Permit requirement.
23 Use Permits are required for uses with
24 operating characteristics that require certain special
25 consideration because of operational characteristics
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1 which would enable them to operate compatibly with other
2 uses in the area and control secondary impacts on
3 surrounding uses.
4 Ordinance 2008-05 requires a Use Permit for
5 non-conforming uses in residential areas. The purpose of
6 that is to ensure that the purposes of the Zoning Code
7 are achieved, and that adverse secondary impacts from the
8 non-conforming uses are mitigated.
9 Section 20.91A.OIO states that the purpose of
10 the Use Permit is to promote public health, safety and
11 welfare, and implement goals of the General Plan by
12 ensuring that the conditional uses do not change the
13 character of the residential neighborhoods.
14 And then it gives the second purpose, which is
15 equally important, which is to protect and implement the
16 recovery and reintegration of disabled individuals, in
17 part by avoiding the overconcentration that could lead to
18 an institutionalization of the area.
19 Both the joint statement of the HUD Department
20 of Justice and the American Planning Association has also
21 stated that they feel it is not in the best interest of
22 the recovery of individuals to be placed in an area where
23 it's institutionalized.
24 So we look at whether or not the Use Permit
25 purposes would be undermined and consider several
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1 factors.
2 One is that any reasonable control a Hearing
3 Officer can impose on a Use Permit can also be imposed
4 through a reasonable accommodation. Therefore, under
5 staff's opinion, conditions appropriate for a Use Permit
6 which could control secondary impacts can also control
7 secondary impacts from a facilities seeking a reasonable
8 accommodation.
9 Chapter 20.98 of our Municipal Code states that
10 all required findings must be made for a reasonable
11 accommodation to be granted.
12 What --although, looking at the facilities and
13 the population levels requested by the Applicant, staff
14 was not able to make the finding --all the required
15 findings. At the population levels suggested by staff,
16 the alternate conditions would meet the needs of the
17 disability, and we could still make the findings.
18 We discussed the current residents, and the
19 staff's belief that no basic purpose of the Zoning Code
20 is undermined by allowing current residents to complete
21 their stay, and that the facility grows smaller through
22 attrition.
23 For the prospective residents, at the
24 Applicant's requested population level, the required
25 findings could not be made. But they could be made at
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1 the staff's requested population level.
2 We proposed bed caps at 124 30th Street and
3 3206 West Balboa.
4 Our alternate accommodation, which we discussed
5 with the Applicant, was to enter an abatement agreement
6 with the City at 124 30th Street. It is staff's opinion
7 that granting a reasonable accommodation to remain in the
8 current location for an additional year did not undermine
9 the fundamental purpose which the Use Permit requirement
10 was put in place to achieve.
11 There will still be conditions during the
12 abatement period. The Applicant will still be required
13 to abide by those conditions and control the secondary
14 impacts, and, therefore, the neighbors surrounding the
15 facilities should have the same protection that a Use
16 Permit would grant during that period, and then the
17 facility would be abated.
18 We discussed the other post-conditions.
19 Quiet hours.
20 Quiet hours for television.
21 Control secondhand smoke so it's not detectable
22 off the property.
23 24-hour contact for addressing neighbor
24 concerns.
25 Garages clear for parking.
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1 And a parking plan for residents with personal
2 vehicles. Although, the Applicant originally stated that
3 personal residents were allowed to have cars, he also
4 stated that it is a limited number who have personal
5 vehicles.
6 And proposed conditions -conditions proposed
7 by staff would be that those vehicles be further limited
8 probably to something similar to what was proposed at 204
9 21st Street, because these are areas were parking is at a
10 premium. And with only --if there were only two on-site
11 parking permit --only two on-site places available, if
12 they had more than six, the facility would not comply
13 with the parking standards.
14 We also put conditions that the Applicant
15 obtain the six-or-under license from ADPi that that
16 licensed facility would substitute for the sober living
17 use, and the reasonable accommodation for the sober
18 living use would end. The Applicant has stated that he
19 does not intend to apply for ADP licenses at these
20 locations, but we'd include that condition anyway.
21 So with those conditions, we look at whether or
22 not the facility would be able to conform with the
23 operational requirements, the operational standards which
24 are set forth for a Use Permit. And again, we emphasize
25 that we're not --the Applicant is not applying for a Use
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1 Permit. We are just ensuring that none of the
2 protections the Use Permit requirement sets forth are
3 undermined by granting a reasonable accommodation.
4 The conditions address secondhand smoke.
5 We have no evidence that the Applicant has not
6 operated the facility in compliance with state and local
7 laws. I'm aware that there's some factual disagreement
8 on when one of the Applicant's facilities at 124 30th
9 Street opened, but Mr. Gilbert, you correct me if I'm
10 wrong, I believe the Applicant gave you leases indicating
11 that both units were leased by the facility in December
12 of 2006.
13 MR. GILBERT: Yes.
14 MS. WOLCOTT: And that is prior to the
15 moratorium. So that would indicate that those facilities
16 were lawfully established under the laws in place at the
17 time of the establishment.
18 It complies with the occupancy standards for
19 bedrooms.
20 Names of managers and owners provided. And
21 we've not seen any pattern or practice of operating
22 similar facilities in violation of the state and local
23 law.
24 And we had discussed on-site parking needs of
25 the facility and the reasoning for limiting the numbers
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1 there.
2 A bed count of six! with one on-site parking
3 space. So that considers the option that we discussed of
4 a facility with six residents in one unit and a single
5 housekeeping unit in the other. That would not be in
6 compliance with the parking requirements stated in
7 Municipal Code. It does comply if six residents occupy
8 both units.
9 As with other facilities! we look at the
10 average daily trips generated for a duplex unit with two
11 single housekeeping units! it would be 13.44 average
12 daily trips estimated.
13 For a residential care facility! average daily
14 trips with six clients! plus one on-site manager, would
15 be 19.19, if there were six residents, plus one manager
16 in the entire building.
17 And if you have six clients and one manager in
18 one unit and a single housekeeping unit in the other, it
19 rises to nearly 30, which is significant higher.
20 The reasonable accommodation standard for
21 parking. Because reasonable accommodation has its own
22 parking and traffic standards, which is different from
23 that in the Use Permit requirement. Use Permit says
24 mitigated to an insignificant level.
25 The reasonable accommodation standard is
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1 whether they create a substantial increase in traffic or
2 parking impacts. We believe with conditions, we could
3 prevent substantial parking impacts, and we have received
4 no complaints about traffic impacts from the facility.
5 And other required findings in a permit which
6 we believe can be made is the property is physically
7 suited to accommodate the use;
8 That it will not change the character of
9 surrounding residential neighborhood;
10 And it does not create an overconcentration
11 under the APA standard of one or two such uses per block.
12 And I should add that the facility mentioned earlier
13 at --I believe it was 127 29th Street, we are informed
14 has been abated. There is no longer a group residential
15 use or sober living use.
16 We have not had traffic impacts reported.
17 No deliveries. As far as I can tell, the
18 Sparkletts deliveries for the residents have been
19 received.
20 And we have had no complaints on regular trash
21 collection since the facility has been in operation. I
22 did check with Code Enforcement as to whether there has
23 been complaints to this facility prior to this hearing,
24 and the only trash complaint was prior to this Applicant
25 taking control of the building.
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1 That concludes my presentation, unless you have
2 questions.
3 MR. ALLEN: I just wanted to ask you one
4 questions, and you probably answered this before or
5 pointed it.
6 It's certainly very important to the City that
7 in these reasonable accommodation approvals that the
8 conditions that are imposed on them be abided by and,
9 more importantly, be enforceable.
10 Where is the authority, the underlying
11 authority, for the City to impose conditions on a
12 reasonable accommodation application? We know clearly
13 that in the Use Permit context, State law authorizes
14 conditions to be imposed as a condition of a grant of a
15 discretionary permit. We have a different situation
16 here.
17 I take it you feel confident that there's
18 authority to enforce those conditions, and you'd win if
19 somebody challenged?
20 MS. WOLCOTT: Are you asking whether we have
21 authority to enforce conditions that we place on the
22 Operator, or are you asking whether the Hearing Officer
23 has the authority to impose the conditions?
24 MR. ALLEN: No, whether we can enforce the
25 City can enforce the conditions that are imposed on the
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1 Operator? They're not consenting to them, you know.
2 They are being imposed.
3 MS. WOLCOTT: Well, one, it is a discretionary
4 permit, and discretionary permits cities are
5 permitted --government agencies are permitted to impose
6 conditions. We're trying to impose conditions that we
7 believe are reasonable.
8 And when the Applicant --if the Applicant has
9 objections, we do listen to those objections and discuss
10 them, you know. As you've seen in past hearings, if an
11 Applicant feels that a particular condition is not going
12 to work with their facility, they bring it to our
13 attention. We discuss that with them. And frequently,
14 propose on alternate condition that can meet the same
15 need but allow the Operator to continue their operation.
16 As far as your authority to impose, the
17 Municipal Code expressly allows you authority to grant or
18 conditionally grant reasonable accommodations, and I can
19 cite chapter and verse if you want me to grab my Code.
20 THE COURT: Does it actually authority the
21 authority with the grant --with the imposition of
22 conditions as well?
23 MS. WOLCOTT: I'll grab that, yes.
24 MR. ALLEN: As long as you tell me that, that's
25 sufficient. I was just interested, because I couldn't
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1 remember having read it before. And it came to my mind
2 that it's very important to be able to do it. And as
3 long as we can do it, that's fine.
4 MS. WOLCOTT: It says Chapter 28 states that
5 "The Hearing Officer may grant, conditional grant, or
6 deny a request for reasonable accommodation."
7 MR. ALLEN: That's right. "Conditionally
8 grant" is the key. Okay. Thanks.
9 MS. WOLCOTT: Thank you.
10 MR. ALLEN: I don't have any other questions.
11 Let's see. Where do we go next? Applicant is going to
12 make a presentation at this point?
13 Do you have anything else, Mr. Kiff.
14 MR. KIFF: I might jump in since Cathy combined
15 the two, and I'll briefly summarize.
16 And respecting Gilbert's comments earlier about
17 124 30th Street, as Cathy noted, we're making a
18 recommendation of approval on the other one, 3206 West
19 Balboa, and those conditions in part, as Cathy
20 summarized, of the six bed cap, no assembly uses,
21 complies with the secondhand smoke requirements,
22 qualified supervision, cars and limited on cars, and et
23 cetera.
24 But just to put up on the board behind us, the
25 proximity issue that we've been showing on each one, and
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1 maybe you're amenable to it, Mr. Allen, open the public
2 hearing for --and allow people, including the Applicant,
3 to speak about both facilities.
4 MR. ALLEN: In other words, conducting the two
5 hearings simultaneously?
6 MR. KIFF: I think that makes more sense in
7 light of what Ms. Wolcott has presented, and they're
8 fairly similar uses.
9 MS. WOLCOTT: Sorry.
10 Mr. KIFF: It's fine.
11 MR. ALLEN: Then if we conduct it in that
12 fashion, the audience may want six units instead of
13 three, and so forth. I don't know whether it's more
14 expedient. Are we likely to get confusion if we do it
15 that way? I would be concerned about that, frankly.
16 MR. KIFF: You could also ask that the audience
17 members speak, and the Applicant speak first on 124 30th
18 and then on 3206 West Balboa. Again, I'm cognizant of
19 not wanting the Applicant nor the audience to have to go
20 through the same --
21 MR. ALLEN: That's a legitimate point.
22 Ms. Wolcott's presentation is lengthy and equally
23 applicable to both of them, and it's important,
24 whereas
25
okay. We'll give it a try.
MS. WOLCOTT: You could also, if you'd like to,
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1 take notice of the presentation for the reasonable
2 accommodation. You could do 124 30th Street hearing
3 first, close that, and take notice of the reasonable
4 accommodation presentation which was given for 124 30th
5 Street, so we don't have to repeat it.
6 MR. ALLEN: That's certainly --look, I think
7 that was what was essentially articulated. I certainly
8 agree to that. We will just take note of it as the
9 second. Why don't we do the two together and see if it
10 works smoothly.
11 As you say, there's similar uses. There are
12 similar issues. And the only difference is the different
13 locations with different unique circumstances to each
14 one. But we only have an hour, and so let's get moving
15 with that. Let's see. The next would be the
16 presentation by the Applicant.
17 MR. CULLEN: Kevin Cullen, C u 1-1 e-n, and I'm
18 the Applicant for 124 30th Street and for 3206 West
19 Balboa.
20 I guess start with 30th Street location,
21 actually for both of them, I'd read both of the staff
22 reports. They are accurate. I have no complaints with
23 either one of --you know, there's nothing I disagree
24 with, quite honestly.
25 The one on 30th Street is an all women's
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1 facility. We went over the bed count already. They
2 point out that there have been no complaints with the
3 Code Enforcement.
4 There are no complaints with the -you know, I
5 read there was a fight of residents that were drug
6 dealing with people getting arrested. These are untrue
7 statements, by the way. And I'm happy to address that
8 later if we need to, but I don't have much to say.
9 The girls we have there, they are fantastic.
10 I'd like to point out that I did put letters of support
11 from the neighbors that live on either side of the
12 building stating that these girls have been wonderful and
13 fine and no complaints.
14 I don't know either of the owners of the
15 properties. It's actually pretty good, quite honestly,
16 because I'm not getting any complaints from them. And
17 it's my understanding that I'm doing a good job for them.
18 I haven't had any complaints. So that's pretty much all
19 I have to say about that. I don't really want to take up
20 too much of your time.
21 MR. ALLEN: Well, feel free to take time to
22 make sure that --
23 MR. CULLEN: No, that's fine.
24 MR. ALLEN: --you understand what's being
25 asked of you here, and that you're receptive to it or you
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1 aren't, and then we can handle it accordingly.
2 MR. CULLEN: I've agree with everything I've
3 heard so far on the 3206 and 30th Street location. I
4 will let the thanks for coming out everybody, by the
5 way. Any complaints or -that the residents have, I'm
6 happy to address at the end of the time.
7 For the --moving on
8 MR. ALLEN: With respect to 30th Street?
9 MR. CULLEN: Yeah.
10 MR. ALLEN: The staff recommendation in the
11 staff report is to deny that, and then -but allow it to
12 operate for a period of 12 months
13 MR. CULLEN: Correct.
14 THE COURT: --and then to terminate at that
15 time?
16 MR. CULLEN: Correct. Actually, I believe the
17 staff report was to approve it at a lesser bed count. I
18 think that was actually what the staff report said
19 originally, because -but at any rate, I'm more than
20 happy to close the place down.
21 That's six people. We can't get continue to
22 operate in the same way. I could probably move everyone
23 to one unit, you know, upstairs or down. We kind of look
24 at different ways of making it work, and it's not really
25 financially viable to do.
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1 Quite honestly, that was the only place we did
2 get some complaints. I'm not --from some residents.
3 And quite honestly, I don't agree with a lot of the
4 complaints, but I'm not really interested in fighting
5 anybody.
6 I think there's other opportunities to be
7 somewhere else. And I'm willing to work with the City.
8 I am willing to work with the residents. I have not been
9 contacted personally by any of the residents. I'll make
10 myself available. I'm really not that difficult to find,
11 but I'm willing to work with them to move the location
12 just, quite honestly, for ease, you know. It's just
13 easier to do that than to
14 And, quite honestly, a year is very generous
15 and I appreciate that. I don't foresee it taking that
16 long, but I kind of appreciate the ability to take
17 something that wouldn't be appropriate and make sure I do
18 my due diligence and check with the City and check with
19 the residents to make sure it's an appropriate place to
20 reopen at a smaller location somewhere.
21 I don't want to --I don't want to be in the
22 same --I don't want to make anyone more uncomfortable or
23 make life any more difficult for anybody. I just want to
24 make sure I have the proper amount of time to make it
25 work out. That's pretty much all I have really got
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1 there.
2 Any other questions?
3 MR. ALLEN: Mr. Kiff, it seems like there was
4 some misunderstanding here between what the Applicant
5 felt the staff recommendation is and what the staff
6 report says.
7 MR. KIFF: Actually, I think, Mr. Allen,
8 Mr. Cullen characterized it correctly; that we would have
9 approved --we would have recommended approval of a
10 having at most six people in recovery in this facility,
11 and in the building, both the A and the B unit.
12 We don't feel that we can make the same
13 recommendation in the bed count is 10 in the whole
14 building, and that relates in part to the Fire Code
15 issues that we discussed.
16 So Mr. Cullen has said that, because of
17 financial considerations, he can't have six there. And
18 again, in the interest of making this a pure reasonable
19 accommodation process where it is a discussion, and we,
20 the City, errs on the side of caution when accommodating
21 people who are disabled, we'd recommended allowing him up
22 to 12 months to find a facility where he could house six
23 people in an economic environment that is more favorable
24 to his operation.
25 I would make one note, too. Mr. Wetherholt has
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1 submitted evidence to the record saying that my
2 characterization of his statement about a fight at 30th
3 Street was incorrect, and that he didn't bring that to my
4 attention, and I apologize to Mr. Wetherholt, for the
5 record, that that confusion exists. It seems like maybe
6 I had forgotten the context of that fight. But clearly
7 from the police reports, it didn't effect Mr. Cullen's
8 clients, and Mr. Wetherholt says it's not something he
9 brought to us either.
10 MR. ALLEN: All right. So then the staff
11 recommendation in the conditions is that the use abates
12 no later than 12 months from the date of the execution of
13 the Resolution, and that the occupants would remain at 10
14 occupants through that one-year period of timei correct?
15 MR. CULLEN: Yeah --yes. I mean, I'd like
16 that option.
17 MR. KIFF: That's correct on the staff's
18 understanding, too, yes.
19 MR. ALLEN: With respect to number two, how
20 many --you have two resident managers therei is that
21 correct?
22 MR. CULLEN: One for the upstairs and one for
23 the downstairs, yes.
24 MR. ALLEN: And I just saw a minor ambiguity
25 here. Are they both qualified recovery specialists?
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1 MR. CULLEN: Absolutely, the finest recovery
2 spec ts.
3 MR. ALLEN: Okay. I just thought only one had
4 to be, and so I was wanting to see clarity there. Thank
5 you.
6 MR. CULLEN: Something I would like to add just
7 about the 30th Street location. I love the property. I
8 love the building. I love the location. I got a couple
9 of letters saying it's not a great area, that there's
10 excessive partying and whatnot.
11 And --but there's also --there are a lot of
12 rental units. There are a lot of families that come down
13 for the summer, and it's a pretty high traffic area. But
14 my experience down there, and the same for the girls, and
15 the residents that live there have been pretty awesome to
16 us, quite honestly. And there hasn't been a lot of
17 excessive anything.
18 You know, I like it a lot. I'm sorry to see it
19 go, but if we can't work it out, I understand. I'm not
20 getting exactly what I want here, by any means. But I
21 think it's fair and just. And I'm willing to work with
22 it. So that's all I really have to say on 30th Street.
23
24
25
MR. ALLEN: Okay.
MR. CULLEN: Moving on?
THE COURT: 3206?
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1 MR. CULLEN; 3206, same type of use, except
2 this is an all male facility. It's a duplex as well.
3 You know, the only thing --there was actually two
4 resident managers in that one, too. I think it was
5 stated as one, but we have one in each unit, just because
6 it's for --it's just easier that way, quite honestly.
7 It's a little bit smaller location. It's right
8 on Balboa Boulevard. It's an awesome location as well.
9 It's a block --well, it's a block from here. It's a
10 block from the Newport Harbor Club, a block from the
11 beach. It's right across the street from Albertsons.
12 There's a laundry --it has a laundry facility on-site,
13 but there's also a laundromat a block away. Guys can
14 walk anywhere. Right downstairs, right below us, is the
15 bus stop. Takes guys right up to Orange Coast College.
16 And only smoking area on that thing is the
17 patio there's no patio --the upstairs balcony for
18 both units that they smoke on that's facing Newport
19 Boulevard or, excuse me, Balboa Boulevard, which is a
20 really high traffic area. The only thing below is a bus
21 stop. And, you know, secondhand smoke I don't believe is
22 an issue, you know, unless you're going to have traffic
23 as an issue, cars as an issue, the bus out front as an
24 issue.
25 MR. ALLEN: We'll find out if it's an issue
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1 during the public hearing, I'm sure.
2 MR. CULLEN: Fantastic. I believe you're
3 right, actually.
4 But anyway, it's --we haven't had any
5 complaints about it, let me put it that way. We haven't
6 had any complaints from the City that I'm aware of. The
7 police hasn't been there because anybody's upset or
8 there's any turmoil in the community that I'm aware of.
9 It's been a great location for us. I've been
10 there since 2005, I think, and without any complaints.
11 Quite honestly, I don't think anyone even realized we
12 were there in any of these locations until they got
13 something in the mail. We're --because we're a quiet
14 type little ship, you know.
15 And anyway, that's what I've got there. I'm
16 happy to answer any questions.
17 MR. ALLEN: Okay, thanks.
18 MR. CULLEN: That's it.
19 THE COURT: Does staff have any questions of
20 the Applicant while he's here?
21 MR. KIFF: No, sir.
22 MR. ALLEN: All right. Thanks.
23 MR. CULLEN: All right. Thank you.
24 MR. ALLEN: All right. Let's open the public
25 hearing and get that started. You heard the comments
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1 earlier. I would want everybody to have the opportunity
2 to say what they need to say. And so, let's not stick
3 tight with the three-minute rule, but, on the other hand,
4 let's have some degree of control over conversation.
5 Please state your name and spell it.
6 MR. REISS: My name is Joe Reiss, R-e-i-s-s. I
7 live on 30th Street.
8 And I agree with staff report. I'm speaking
9 specifically on 124 30th Street. That's the one I have
10 the main certain with. I agree with the staff report.
11 support the staff report. I hope you do also. I'm glad
12 to hear that this gentleman is also in agreement and is
13 willing to abate the property and to close the facility.
14 One thing I did note when I read the staff
15 report, I sent an e-mail to Mr. Kiff, and it wasn't
16 included within the staff report. I'd like to provide a
17 copy of that so it can be included in there. It's my
18 observations that I have had on the property.
19 There have been some good clients that have
20 been in the property. I've talked to some of those
21 clients. But there's also been some bad clients in the
22 property that we haven't really been happy with.
23 And I do want to address one issue, and that
24 issue is this with regard to the complaints. Not maybe
25 specifically at this location, but for three years, this
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1 community has been complaining about the
2 overconcentration of these sober facilities and has been
3 complaining about a variety of different issues that go
4 with them.
5 And I don't think it's 1y proper for
6 anyone, really, to come in and say that the community
7 hasn't been complaining. Maybe not specifically where we
8 called Code Enforcement on this location, but it's quite
9 evident from the showing that you've had at all of these
10 that the community is upset. And this is just an
11 example, and some of the e-mails and responses and
12 letters that you got indicate some of those concerns and
13 those are shared by many throughout the community.
14 Thank you.
15 MR. ALLEN: Thank you.
16 MR. GARRETT: Good afternoon. My name is Bill
17 Garrett, G-a-r-r-e-t-t. I've been a resident of Balboa
18 Peninsula for 35 years.
19 I also support staff's recommendation on this.
20 I think six months would have been a better timeframe to
21 abate the use there. But again, I appreciate staff's
22 recommendations, and I do support it.
23 Also, I'd like to say this is --I think we all
24 know this is a perfect example of government completely
25 run amuck in allowing these uses in residential
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1 neighbors. So anything you can do in the future to help
2 us in that regard, weld appreciate it.
3 Thank you.
4 MS. MARTIN: My name is Brenda Martin,
5 M-a-r-t-i-n. lIve been a resident of Newport Beach or
6 the Peninsula for about 15 years.
7 I do support the staff recommendation. I
8 appreciate the fact that we are going do something about
9 this finally, but I would like to reiterate that there
10 have been a lot of complaints. A lot of us have made,
11 complaints and had problems from the overconcentration of
12 the facilities.
13 MR. ALLEN: Where do you live in proximity to
14 this, 11m sorry?
15 MS. MARTIN: I am about --11m in the 200 block
16 across the street, basically, from Mr. Wetherholt. In
17 that area, that block in there.
18 MR. KIFF: I'm sorry. 200 block of --
19 MS. MARTIN: 30th. Oh, 11m sorry, yes.
20 And we have seen quite a bit. The girls have
21 been pretty reasonable with their behavior, I will say.
22 But we do see a lot of wondering around with cigarettes
23 and all that from the others.
24 I have a question as to the authority to
25 enforce the conditions. What does that mean to us? Are
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1 we going to just call the police when we see violations
2 that have been outlined, or how is that going to be
3 effected? Do we have any idea?
4 MR. KIFF: Your discretion, Mr. Allen. I can
5 answer questions at the end or individually.
6 MS. MARTIN: Sorry.
7 MR. ALLEN: That's a good question, though, and
8 Mr. Kiff has an answer for it that we all need to hear
9 from time to time, because it's going to be important as
10 time go on. He'll do that after everyone gets done.
11 MS. MARTIN: All right. Thank you.
12 MR. MATHENA: Larry Mathena. Good to see you.
13 Couple of different points. Good to see you.
14 On 124 30th Street, I guess my only observation
15 is I observe that, for instance, the PowerPoint
16 demonstration refers to this as an abatement agreement,
17 which I think is fine and a good thing. I would believe
18 that in the absence of such an agreement, that, unlike
19 the base law which provides for one year, that basically
20 this should have been abated the end of February.
21 I think in many respects, you're being overly
22 generous with the year, but -excepting that you do have
23 a responsible Operator, I can accept potentially that
24 entire year.
25 I would observe, though, because this is an
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1 abatement agreement as opposed to merely an abatement
2 enforcement action, that from my perspective, in this
3 hazy interim land use agreement context, that it would be
4 very appropriate to have your Applicant, who appears to
5 be accepting all this in a forthright and direct manner,
6 to agree to the terms proposed, to agree that if they are
7 not complied with, that there will be an acceleration of
8 abatement, and basically to agree, in terms of providing
9 certainty and comfort to the folks that have struggled
10 with this overconcentration, that he will not be pursuing
11 a change in what's otherwise been agreed to at this
12 moment, despite the fact that --and I do understand why
13 it's there and what it means --that basically the City's
14 position is tomorrow afternoon, the Applicant could say,
15 "Oh, I came up with a better reasonable accommodation
16 argument."
17 I would argue if you're going to give him the
18 year, that it's an appropriate right for him to waive.
19 Otherwise, I would suggest that the City simply take the
20 position that it has an abatement that should have
21 started in February and just start it now. So that's my
22 observations on 124 30th. I think you are being
23 generous. I can accept the context. But if you're
24 getting that generosity, I think for certainty -
25 And also the other point I want to make, if I
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1 were the City, administratively, God knows, you don't
2 want somebody coming up tomorrow and saying, "I changed
3 my mind." I don't think it's inappropriate for you
4 folks, just for your own sanity and to save costs, which
5 is one of the conditions to be considered in all this,
6 that if you are being so accommodating, that you do
7 condition that accommodation during this abatement
8 period. Those are my thoughts on 124.
9 On the other facility --I appreciate this
10 drawing of lines. Just want to remind you, and the thing
11 that everybody seems to be ignoring, just because for a
12 Use Permit you came up with this very rigid, mechanical,
13 in many respects unrealistic APA standard, that for 3206,
14 and reasonable accommodation generally, it's a supply
15 test.
16 It's not directly an overconcentration test
17 that you can turn to, and that you have a huge supply,
18 and that based on that huge supply --and, for instance,
19 we had 900 West Balboa that, "Oh, it was a
20 four-and-under, and we don't have any four-and-unders, so
21 that's a unique supply we're providing." There are
22 six and-unders. There are a whole bunch of different
23 ones.
24 And just to quote the standards you could apply
25 to 3206, "In the case of a residential care facility,
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1 whether the existing supply of facilities of a similar
2 nature and operation in the community is sufficient to
3 provide individuals with a disability and equal
4 opportunity to live in a resident setting," and the
5 answer is there is a ton of other choices. So no, you
6 don't have to give them reasonable accommodation at 3206
7 either.
8 And to go back, to the extent you have the law
9 to enforce, it would be nice to see it enforced.
10 Thank you.
11 MR. ALLEN: Thank you.
12 MS. HYATT: Hello. My name is Mary Hyatt,
13 H-y-a-t-t. I have lived on 30th Street since 1977.
14 And I don't have a specific complaint to 124
15 30th Street. I would say that if you want to put the
16 lion in the lion's den, that's it. Because there's a lot
17 of alcohol and drug abuse going on on that street on a
18 daily basis. So if you want to test them and see if they
19 are strong against that, that's a good place to put them.
20 But my concern would be also the amount of
21 people in there, because that's kind of a summer
22 concentration to have have that many people in one
23 duplex at a time. It happens during the summer for a
24 week here and there, but not on a, you know, yearly
25 basis.
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1 And also, I might have missed it, but the
2 questions I would have would be, why wasn't a for all
3 these locations, a Use Permit applied for? Because it
4 was, I mean, everybody knew that that was the standard
5 put in place. And is there a reason that that wasn't
6 applied for?
7 And when we make an accommodation, it's
8 not --is it one exception, or is it going to be 10
9 exceptions? I mean, I guess I don't understand the
10 rationale in making exceptions when you've already been
11 really clear on the rules, and -that you have to apply,
12 and that's my question.
13 Thank you.
14 MR. ALLEN: Next?
15 MS. MARTIN: I think I'll take another minute,
16 if you don't mind? Brenda Martin, M-a r-t-i-n.
17 On reflection a little bit, I think some of the
18 concerns that I noted was that there were no complaints
19 from the nearby neighbors, and I know that that's not
20 really true. Because some of the female neighbors around
21 there have been in fear of retaliation if they made their
22 complaints obvious or had some of the people know who
23 they were. And I know several of the neighbors directly
24 around that 30th Street property, as a matter of fact.
25 The other concerns has neighbors we have had is
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1 the property value situation, and that's pretty
2 substantial, I think, with the rate of concentration that
3 we have around there.
4 The other thing I'm wondering, because this
5 building -the 30th Street building is owned by a
6 recovery company?
7 No, it isn't? Did I misunderstand? It's not
8 owned by the one that's occupying it, but it's owned by
9 another Ocean or something?
10 MR. ALLEN: They will explain that.
11 MS. MARTIN: Oh, all right. I just was
12 wondering if we were going to be put back in the same
13 position.
14 All right. Thank you.
15 MR. ALLEN: All right. Anyone else want to
16 talk about either one of these applications?
17 All right. Let's close the public hearing
18 then. And first of all, we can give Mr. Kiff an
19 opportunity to respond to those questions that were
20 raised.
21 MR. KIFF: Thank you, Mr. Allen.
22 I didn't note a lot of questions, but
23 Ms. Martin raised a few. We've talked about it in the
24 past, but I'll say it again. The authority to enforce
25 the conditions is with our Code Enforcement Unit.
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1 And if folks have a concern, the number is
2 644-3215. You can also call or log on to Web site and
3 file a complaint electronically using our it's called
4 the Quest System. And that allows you to put in the
5 address and your specific concern. We do follow up. We
6 have three to five Code Enforcement Officers at anyone
7 time who work on this issue and others.
8 I'm going to ask Mr. Cullen in a bit to address
9 the ownership of the building.
10 I'm going to jump, then, to --Mr. Mathena
11 stated some thoughts and hopes for this rather than
12 asking questions, so I won't address those. I will
13 address one issue that I think is worthy of at least
14 going in the record when you talk about maybe the City
15 has a huge supply of uses such as this.
16 And over time, the more I've worked on this
17 issue, we need to realize, I think as I have and
18 hopefully correctly, that the majority of our recovery
19 facilities in Newport Beach are affiliated with a
20 treatment program directly. And in order to be in a
21 so-called sober living house, for instance with Sober
22 Living By The Sea or Morningside, you have to be in their
23 program.
24 So arguably, a facility like Balboa Recovery,
25 which doesn't require affiliation with Ocean Recovery and
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1 is intended to be after that type of service, that we
2 don't have a lot of these in the community, rightly or
3 wrongly.
4 But I think it's difficult for the City to make
5 a finding beyond what we made in the staff report, that
6 there is --there are a number of opportunities for
7 people in recovery to reside in a longer-term or
8 medium-term sober environment where they are not
9 affiliated with a treatment program, and those
10 opportunities are listed.
11 Now, Mr. Mathena's point is well taken when he
12 says, "Well, anybody could," as we note in the staff
13 report, "get together and form a single family" I'm
14 sorry --"a single housekeeping unit and choose to live
15 in recovery unaffiliated with anyone. They just enter
16 onto one lease, they operate as a single housekeeping
17 unit," et cetera.
18 And then finally, to try to address some of
19 Ms. Hyatt's concerns. There are a variety of reasons why
20 folks didn't apply for a Use Permit. I'll allow
21 Mr. Cullen to answer that directly. A number of folks
22 either didn't apply because they believed our Ordinance
23 is illegal, and, indeed, they have sued on that basis,
24 and we have extensive litigation going on involving the
25 legality of the Ordinance.
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1 And some applied even while stating that they
2 believe that their application -that the City's
3 Ordinance was illegal, but they chose to apply at the
4 same time. So we had a variety of reactions from our
5 known facilities in the adoption of this Ordinance back
6 in February of 2008.
7 And then Ms. Hyatt also asked about
8 accommodations. Do you issue one? Do you issue 10? The
9 bottom line is, is the City's interpreting this is any
10 person who is disabled or who is representing a disabled
11 person can apply for a reasonable accommodation at any
12 time from any aspect of the City's codes, not just our
13 group residential codes but any codes.
14 And that is what this hearing is about, to see
15 whether or not that reasonable accommodation application
16 is appropriate, whether they represent people who are
17 disabled, and whether or not it does not make a
18 fundamental alteration in our Zoning Code, and that's the
19 analysis that Ms. Wolcott went through.
20 So the answer to that question is yes, you
21 could have literally thousands of requests for reasonable
22 application --or reasonable accommodation, and each one
23 we'd have to analyze separately based on those prongs
24 that Ms. Wolcott mentioned.
25 And with that, I think that's my list of
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1 questions. And maybe Mr. Cullen could answer two
2 questions, ownership, and why didn't Balboa Recovery
3 apply for a Use Permit? And, of course, Mr. Cullen is
4 welcomed, as you know, Mr. Allen, to comment on any other
5 aspects of testimony you heard.
6 MR. CULLEN: Again, Kevin Cullen, C-u l-l-e-n.
7 I'll start with the ownership of the building.
8 Balboa Recovery leases the property at 30th Street. The
9 company that owns the building is called Ocean --I don't
10 know what they call it. I happen to work for a company
11 called Ocean Recovery. But it's a total coincidence.
12 There is no affiliation between them. It's just that
13 that particular company's name is Ocean.
14 It's not owned by the same owners. No
15 affiliation whatsoever. Whoever owns the building, they
16 are a corporation. It just happens to be called Ocean.
17 We lease the building. We'v leased it since two and a
18 half, three years, whatever it is. So that's who owns
19 the building. We have got letter from them, too, by the
20 way, that I submitted into the record.
21 As far as why we didn't originally apply for
22 the permits, quite honestly, I'm not sure it even applied
23 to us. First, we were pretty sure it was, like Mr. Kiff
24 said, that it was kind of the standard --industry
25 standard of what was kind of going on. However, it is
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1 what it is, and it's in place, so we decide to play along
2 and to do what we need to do make our facilities legal
3 and do the right thing.
4 Quite honestly, we were pretty sure it didn't
5 apply us, because we're not a treatment center. There's
6 no treatment center offered there. And it was kind
7 of --we talked with the owner of the building, too, and
8 they were pretty adamant about they were surprised
9 that someone could tell them who they could and couldn't
10 lease to.
11 You could lease to college guys who are, you
12 know, summer rentals, or whatever, but I can't lease to
13 people that are in recovery, that don't use drugs and
14 alcohol? And it kind of seemed a little ridiculous,
15 quite honestly.
16 And basically, since we're not a treatment
17 center, we're not state licensed, I didn't think it
18 really applied to us originally. And when it came down
19 to it, we would make other arrangements.
20 Upon further investigation, you know, the
21 people that live in these places, it's really important
22 that they live there. It's real important to them. They
23 love where they live. They love this community. They
24 love being in --they love the convenience of being at
25 Newport Harbor Club, being at the grocery store, being at
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1 the beach. This is where they got sober. This is where
2 their lives begun. They are passionate about this place,
3 you know. And to make them leave doesn't seem right.
4 So I'm kind of willing to do -and it's been a
5 lot of work, man, trying to go through this whole process
6 so these people have the opportunity stay here and enjoy
7 it. I have the same opportunity, and I wouldn't want
8 anyone else to miss out on that.
9 I see people's lives change daily, and it's
10 pretty awesome. And I hope you guys get to check out
11 some of these same experiences, maybe. But anyway,
12 that's why we didn't originally apply. And we ended up
13 doing --my understanding is we've been up front and
14 legal about it, and do everything we're supposed to do,
15 and we plan on continuing to do it.
16 Hoping that answers those questions. Anything
17 else?
18 MR. KIFF: To me, yes.
19 MR. CULLEN: Okay. I'll go down the list.
20 I heard a lot about overconcentration and,
21 yeah, man, you're right. I don't argue that. I think
22 there's been a ton of places. But the citizens don't
23 give themselves enough credit or the City doesn't take
24 enough credit either. It's not as bad or as much as it
25 was a couple years ago or even last year or in the
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1 future.
2 I mean, there's a lot less where there were.
3 And quite honestly, there were a lot of places that were
4 called sober living homes that are not sober living
5 homes. They have no rules. They have no regulations.
6 They have nothing, you know. They were fraternity
7 houses. At worse, crack houses, you know. It was a bad
8 scene and gave the industry a real bad name.
9 Quite honestly, there are still a few, and I
10 think, you know, sober living is going to get closed down
11 in the future. And as far as an overabundance now, if
12 you like a took at, you know, unlicensed sober living
13 homes that have even applied for this, you know, I don't
14 know of any, quite honestly.
15 And you mentioned about the bed availability.
16 With all due respect, there's 21st Street, and there's
17 900 Street, and that's it. Sober Living By The Sea, I
18 think they had 65 beds, actually --and I talked to their
19 head of business development, and I talked to the
20 admissions director. They do no sober living. There is
21 no sober living. They are a treatment facility
22 exclusively.
23 So it's kind of like as I mentioned, sober
24 living beds, there are not a whole lot of them. I defy
25 you to name one all female facility on the Peninsula.
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1 I've owned or administered, you know, for nine years, and
2 I don't know of any. I get calls all the time for
3 referrals, and I can't make them, because I don't know
4 where else to send people. There's a couple off the
5 Peninsula, and in Costa Mesa, but that's it. But I do
6 hear the residents. I think there has about a
7 lot --there's been a lot of bad providers. I agree.
8 However, I'm not one of them.
9 A lot of the other complaints I got from Joe
10 Reiss and Bill Garrett and Brenda Martin. They weren't
11 specific to my places. There was something about
12 property value, you know. Property values are down, I
13 believe, because of a lot of reasons. Yet, I haven't
14 heard any specific evidence because of being located near
15 sober living homes, but --that's for sure.
16 And as far as Larry Mathena, I read his thing.
17 I didn't completely understand it, but my understanding
18 was if I enter into this agreement with the City, I am
19 entering an agreement with the City. I can't change my
20 mind. That was my understanding.
21 If I missed something, I apologize. But I'm
22 happy to, you know --unless there's something that I
23 didn't understand in there. But the way that the City
24 was been presented to me, I'm in agreement with it, and I
25 have no intention to change my mind, and I'm happy to
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1 sign whatever it is I'm supposed to sign to make that
2 happen.
3 Quite honestly, I think that's it. I have
4 addressed everything.
5 MR. ALLEN: Okay. Thank you.
6 Just the record, I happen to look at the
7 application. The property owner is Ocean One, LLC, on
8 Covina De Gloria in Walnut?
9 MR. CULLEN: Yes.
10 MR. ALLEN: You don't have any relationship
11 with them other than
12 MR. CULLEN: No.
13 MR. ALLEN: --other than landlord/tenant; is
14 that correct.
15 MR. CULLEN: Correct.
16 MR. ALLEN: All right. Anything else that we
17 should cover here?
18 MR. KIFF: Not that I know of, sir.
19 MR. ALLEN: All right. Let's proceed here
20 then. Just a question of the City attorney, if she
21 would.
22 On the 30th Street condition, it says "This use
23 shall abate in 12 months." Mr. Cullen has indicated a
24 willingness to sign something, if that's asked of him.
25 And it seems appropriate for him to acknowledge in
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1 writing his understanding, that he's to terminate the use
2 in 12 months, with the hope that something doesn't occur
3 that necessitates him trying to engage in a battle with
4 the City to remain there.
5 And I don't think there's any --it's probably
6 not appropriate to ask anyone to waive rights to
7 reasonable accommodation, and I wouldn't be suggesting
8 that at all. But an acknowledgement that, as a condition
9 of operating this place for 12 months, that he --so
10 unless you have a concern, I'd like to put that in just
11 in general terms as a condition.
12 MS. WOLCOTT: I want to make sure that I
13 understand the wording that you're requesting for. You
14 would like conditions in the abatement agreement
15 stating
16 MR. ALLEN: There's not an abatement agreement
17 now as I understand it.
18 MS. WOLCOTT: No. The reasonable accommodation
19 would involve entering into an abatement agreement with
20 the City. It's a separate contractual arrangement.
21 MR. ALLEN: Oh, I didn't see that as a
22 condition. Oh, I didn't know that that was the
23 intention, to actually create an abatement agreement.
24 MS. WOLCOTT: That is generally how we handle
25 the abatement situations. Mr. Kiff -
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1 MR. ALLEN: Oh, all right. Then that's fine.
2 MS. WOLCOTT: --can correct me, if he'd like
3 it handled differently, though.
4 MR. ALLEN: I did not realize that you did
5 abatement agreements as such. So if you have a formal
6 abatement agreement that there's an expectation he'll
7 sign, then I think we should --should we add this in
8 this condition? That would be my thinking.
9 MS. WOLCOTT: Yes.
10 MR. ALLEN: Otherwise, I don't see there's an
11 obligation for him to do that.
12 MS. WOLCOTT: If you'd like to add it into the
13 conditions of approval, which would be --
14 MR. ALLEN: Number one in the abatement
15 period.
16 MS. WOLCOTT: Okay.
17 MR. ALLEN: Thanks.
18 MS. WOLCOTT: And the remedy for breaching one
19 of the conditions in the abatement agreement would be
20 breach of contract.
21 MR. ALLEN: Uh-huh.
22 MS. WOLCOTT: I don't think there's any intent
23 to ask anyone to waive Federal rights to reasonable --
24
25
MR. ALLEN: Certainly not.
MS. WOLCOTT: accommodation.
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1 MR. ALLEN: Certainly not. That's not a part
2 of it here. But it is --in other words, there is
3 reasonable accommodation being granted here by allowing
4 the use to continue for a year. And so this is simply a
5 condition of that grant. Whatever happens in the future
6 happens.
7 MS. WOLCOTT: Thank you.
8 MR. ALLEN: All right. So then with respect to
9 30th Street, I agree with the staff report with respect
10 to recommendation for the action that's being proposed.
11 The alternative of allowing the operation to
12 continue for one year with the condition that it
13 terminate at that time, grants the accommodation that's
14 being sought. The conditions that are set forth in
15 Exhibit A will be incorporated into an appropriate
16 Resolution to limit the operation, and the Applicant has
17 already indicated his willingness to abide by those.
18 And so with that, I would approve this use with
19 those conditions, and observe that the findings that are
20 required by the Zoning Code have been met by the
21 limitations that are imposed. So that's the decision
22 with respect to 30th Street.
23 With respect to 3206 and 3206 1/2, staff
24 recommendation is to approve this one as well and to
25 bring back a Resolution of Approval. I agree with that,
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1 and do grant the approval.
2 Excuse me just a moment.
3 MS. WOLCOTT: I don't know that we've addressed
4 the issue at 3206 the Applicant or the Hearing Officer is
5 looking at six in the entire building, plus a resident
6 manager, or six in one unit with the single housekeeping
7 unit.
8 MR. ALLEN: You're right, we didn't. And
9 that's a very significant issue, it seems to me. Let's
10 reopen for purposes of Mr. Cullen's position on that and
11 staff's position.
12 MR. CULLEN: Kevin Cullen.
13 I'm looking at the whole place, so four and
14 two, you know, would the better. One side is bigger than
15 the other. I'd like to have control of the whole
16 building for obvious reasons. It's just safer for the
17 residents if I can impose whatever rules I want on the
18 whole facility.
19 So also, we won't get blamed for someone else's
20 noise or anything like that, someone staying up all night
21 next door. It kind of defeats the purpose of having them
22 in by 10 o'clock or 11 o'clock or whatever. I want to
23 keep the whole place four and two. It would be great.
24 That's fine. We have two parking spots and well, one
25 car garage really, so whatever we've got to do to make
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1 that work out.
2 MR. ALLEN: Can we articulate Mr. Kiff,
3 you're probably better at that. Can we articulate a
4 provision whereby the entire facility, both units, will
5 be occupied by Mr. Cullen's operation, but that it sounds
6 as if it will be appropriate to grant him flexibility
7 with respect to how many recoverees are in each unit?
8 MR. KIFF: Yes.
9 THE COURT: Okay. Then let's draft language
10 for the Resolution that accomplishes that result, so that
11 there will be a maximum of six people in the entire 3206
12 and 3206 1/2, or units A and B as is sometimes referred
13 to, and that there will be flexibility with respect to
14 how many you wish to put in each side, and managers, and
15 so forth, okay?
16 MR. CULLEN: Is that all?
17 MR. ALLEN: Yeah. And so the findings that are
18 required by 20.98.025 of the Code are made in this
19 instance with the set of conditions that are imposed and
20 particularly in light of the reduction to six occupants
21 for the entire building.
22 I think that's especially significant, because
23 it constitutes a significant reduction in an otherwise
24 dense situation in that location, which, in itself, is in
25 a very dense and heavily populated area, just like all
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1 the rest of the ones that we've talked about on the
2 Peninsula with 3 feet side yard set backs, and so forth.
3 The conditions are set forth in Exhibit A, and
4 they will be incorporated into a Resolution that I'll
5 sign. I don't believe I have any changes to those. So
6 they are acceptable as is, and that concludes that. The
7 findings have been made. The Resolution also will be
8 prepared with the conditions set forth in Exhibit A, so
9 that concludes that matter.
10 Is there -let's see. Is there something else
11 we need to do with the prior resolutions?
12 MR. KIFF: Mr. Allen, I know Ms. Curran is here
13 and wanted to speak about, I believe, the Resolution on
14 1115 West Balboa. This is really up to you. We
15 don't --we're not required to have a public comment time
16 on non-agenda items on administrative hearings, because
17 you don't have any direct authority over non-agenda
18 items.
19 You shouldn't reopen the public hearing on 1115
20 West Balboa, but, arguably, you could hear what
21 Ms. Curran wants to say, but the public hearing was
22 opened and closed. And I guess maybe looked to legal
23 Counsel as to what the proper procedure is, because we
24 did not set up agenda item one specifically, the signing
25 of that document, as a public hearing item, because it
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1 was opened and closed, and it wasn't noticed as such.
2 In the past times wherein you've executed the
3 Resolutions, you've done so in front of the public so the
4 public can see it rather than at your home or in my
5 office. So that's why we do this the way we've done it.
6 So I don't really have a good answer for you,
7 unless Mr. Bobko or Ms. Wolcott has an answer.
8 MR. BOBKO: We're conferring.
9 Mr. Allen, we will --normally in City Council
10 meetings and sessions, of course, you have a period at
11 the beginning for things not on the agenda. This is on
12 the agenda. We have not, in our short confer, come up
13 with a solid answer. So we will defer to the Hearing
14 Officer's discretion on this. Of course, we think
15 there's probably no harm in letting a member of the
16 public speak.
17 MR. ALLEN: Good, because that's what I think,
18 too. And so with that, please come forward if you wish
19 to discuss or make comments with respect to the
20 Resolution, and let's give it three minutes, if you wish.
21 MS. CURRAN: My name is Laura Curran. I live
22 at 437 Dalia, Corona del Mar. I appreciate the
23 opportunity to speak.
24 I would like to comment on the
25 hearing --comments during the hearing separate from the
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1 parking, the smoking item, or 1115 --
2 MR. ALLEN: You are addressing 1115; correct?
3 MS. CURRAN: Yes, I am.
4 And during that, you also commented at the
5 beginning about the testimony that had been given, and
6 the need to weigh the credibility of individuals who had
7 spoken. And not having their credentials, it was hard to
8 weigh their credibility to make an assessment based on
9 what you saw. And I think we need to be very careful
10 about using visual representations as an assessment of
11 credibility.
12 First of all, many of the people who speak feel
13 that they are speaking under great personal threat, as
14 another person alluded to. And secondly, people appear
15 in many shapes and colors, and they all have something to
16 say. So I'm kind of --it made me pause, just as a note.
17 Perhaps it wasn't intended that way, but it's the way it
18 could corne across.
19 Okay. I would like to address the parking
20 garage concession for 1115 west Balboa, which was
21 presented at the May 7th hearing. I want to express my
22 concerns, which I've also copied to Counsel and will
23 forward to the Planning Commission and to Council.
24 First of all, the concession was not in the
25 staff report, so only a person who carne to the hearing
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1 would have been aware of this proposed change.
2 When the homeowner's request to use the garage
3 for another use and not provided the required number of
4 spaces! generally! as a homeowner! you have to get a
5 variance. So providing for this change without prior
6 notice and without review by the Planning Commission is
7 contrary to the Code requirements and the spirit of the
8 Parking Code which apply to other residents.
9 I'm very concerned that the approval
10 recommendations for the facility to have 18 people is
11 based --and is based! in part, on the fact that they
12 will have six spaces for employees, but one of these
13 spaces would be part of the garage unit being used for
14 smoking.
15 Use of the garage as a smoking area reduces the
16 primary parking spaces to five. This isn't noted in the
17 staff report, nor is the potential impact of the amount
18 of staff parking. Of course, the residents often use
19 their garages for other uses on an intermittent basis.
20 However, residents are not allowed to use the
21 garage in such a way that it's not accessible on a
22 regular basis for parking. And it's unrealistic that the
23 garage will not become a quasi-permanent smoking and
24 assembly room, as has happened at other facilities.
25 And I'll provide you a photo. This is the
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1 garage at Miramar Recovery at 435 Dalia. And the
2 garage is permanently blocked by 10 trash cans and used
3 for smoking. I don't think this use is any different.
4 Secondly, in this case, it's --one of the
5 conditions for approval of the garage is used for smoking
6 sets a precedents for its ongoing use and becomes a right
7 vested with the property owner.
8 If I'm a resident after this happens -I mean,
9 not only will group home operators be calling each other
10 and Facebooking each other the day after this is passed
11 and say, "Hey, your garage is now part of your smoking
12 facility," residents will take note and say, "You know
13 what? That grandfathered" --or, you know,
14 whatever --"back unit, or that apartment in my garage
15 that I want to rent out to my neighbors, or in the
16 summer, you know what? They are letting people use their
17 garage for smoking. Now I have a grandfathered unit in
18 my garage that I can rent out." I think you're opening
19 the can of worms across the board.
20 We need to enforce the regulations that we
21 have, and let the garages be used for garages and require
22 the smoking to be inside the facility. That's what it
23 says. It doesn't say inside the garage, it says inside
24 the facility.
25 Okay. Staff report does not provide for any
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1 conditions to be met if the garage is used for parking,
2 such as smoke alarms, fire extinguishers, avoidance of
3 secondhand smoke, removal of hazardous or combustible
4 materials.
5 MR. KIFF: I'm going to say that that's three
6 minutes.
7 MS. CURRAN: Okay. I would ask for an
8 additional minute.
9 The secondhand smoke, the entering and exit is
10 called out. How do you prevent that when the doors open
11 and close?
12 Finally, this is very contrary to Council's
13 indication that they want garages to be used for parking.
14 I think we need to honor Council's direction on that in
15 the past, and that they put restriction on homeowners
16 about the use of their garages.
17 The last item is the staff report does not
18 clearly layout that this is a concession that's being
19 required. In 2 E, 5-BE, 6-C, we allude to conditions for
20 smoking, but we do not note -it is not noted that the
21 garage being used for smoking is a condition of a permit.
22 So I don't think it's clear, and it really needs to be
23 addressed.
24 Thank you.
25 MR. ALLEN: Just one point, and I can't debate
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1 this, and I don't intend to.
2 The off street parking and loading and
3 unloading provisions of the Resolution require that six
4 off-street parking spaces for the use of the facility be
5 available at all times. So I don't know how this is
6 going to work out.
7 And with respect to the smoking provisions of
8 five, there is not a designation that the smoking occur
9 at any certain point in the facility. So it would appear
10 to me that there's quite a bit to be worked out on this
11 issue before a garage space becomes no longer available
12 for parking and a large smoking facility. My
13 observations.
14
15 hearing.
16
17 to add?
18
19
20 you all.
21
22
23
24
25
MS. CULLAN: But that's what was said in the
MR. ALLEN: All right. Is there anything else
MR. KIFF: No, sir.
MR. ALLEN: That's it for today, then. Thank
(Ending time: 5:47 p.m.)
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importantly
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progress
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v
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values 69: 12
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WI: 9
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works 44: 10
worms 80: 19
worse 68: 7
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wrong 37: 10
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PUBLIC HEARING -5/20/2009
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yearly 59: 24
years 53: 25
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yesterday
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zone 12: 13
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zoned 12: 22
zones 21: 23
zoning 29: 5
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18: 25
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2110: 1
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PUBLIC HEARING -5/20/2009
PRECISE REPORTING SERVICE
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Page 24
Attachment No.4
Resolution No. HO-2009-015
Adopted July 2,2009
RESOLUTION NO. HO-2009-015
A RESOLUTION OF A HEARING OFFICER OF THE CITY OF
NEWPORT BEACH DENYING A REQUEST FOR REASONABLE
ACCOMMODATION FOR A RESIDENTIAL CARE FACILITY
LOCATED AT 124 30TH STREET AND OPERATED BY BALBOA
RECOVERY, INC (PA 2009-012)
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 accommodation 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 Kevin Cullen, on behalf of Balboa Recovery Inc.,
with respect to property located at 124 30th Street, and legally described as Newport Beach City
BlK 29 Lot 18 TR 512; and
WHEREAS, a public hearing was held on May 20, 2009, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and
purpose of the meeting was given in accordance with the Municipal Code and other
applicable laws. 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, the required findings of Section 20.98.025(B) of the NBMC and facts in
support of such findings are as follows:
1. Finding: 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: Balboa Recovery Inc., submitted a statement signed under
penalty of perjury that every resident of the facility is in recovery from alcohol and/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: The requested accommodation is necessary to provide one or more
individuals with a disability an equal opportunity to use and enjoy a dwelling.
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 2 of 14
Facts in support of finding as to current residents: As this facility is a nonconforming
use in a residential district and the applicant did not apply for or receive a use permit
within the time period designated by Ordinance No. 2008-05, it is currently subject to
abatement if a reasonable accommodation is not granted. If the facility is abated
current residents will lose the opportunity to live in their current dwelling for the
intended duration of their stay. Granting the accommodation allowing all current
residents to complete their intended stay is necessary to allow these residents an
equal opportunity to use and enjoy their current dwelling.
Facts do not support finding as to prospective residents, at the population level
requested by the applicant. Balboa Recovery Inc. has requested accommodation for
10 residents at this location and argued that it was necessary to continue to operate in
both units due to concerns about mixing recovery and certain non-recovery uses in the
same building. Staff recognizes that control of the entire building may be in the best
interest of the resident clients, but notes a similar tenant scenario may occur in
adjacent or surrounding properties that would not be in the control of the applicant.
This particular area has residential units in close proximity to one another with minimal
setbacks of three feet.
Balboa Recovery has not submitted any information that would demonstrate that
prospective residents of the facility will receive any greater therapeutic benefit from a
facility with more than six residents.
Balboa Recovery states that because of the costs associated with this particular
facility, operating the facility with fewer than the requested 10 residents is not
financially feasible. Instead of requesting that the Hearing Officer review evidence of
financial necessity and grant the requested accommodation with a resident population
in excess of the six residents recommended by staff, the applicant has requested an
extended abatement period. The Hearing Officer finds that a 12-month abatement
period is a reasonable period of time to .allow current clients to ccmplete their stays
and for Balboa Recovery to identify altemate facility locations. The Hearing Officer
finds that the City should enter an abatement agreement with the applicant, and that
during the abatement period the applicant must operate the facility in accordance with
the conditions attached hereto as Exhibit A.
NBMC Section 20.98.025(C) also 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.
If accommodation is granted, current and potential clients of Balboa Recovery Inc.
clients will be able to live in a dwelling in an R-2 District with other individuals in
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 3 of 14
recovery from addiction. Disabled residents would have an opportunity to live in a safe
and sober, supportive, residential setting offering a self-paced recovery which allows
residents to reintegrate into the world and workforce. 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. This facility appears to be the only residential
care facility of any description on this block, or any of the adjacent blocks.
Even though current residents are probably benefited by staying in their current sober
living environment for the duration of their intended stay, the applicant has not
submitted any information that would demonstrate that prospective residents of the
facility will receive any greater therapeutic benefit from a facility with more than six
residents.
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 to current residents: Balboa Recovery Inc. is requesting an exemption from the
requirements of NBMC Section 20.10.020, to allow the continued operation of an
existing unlicensed residential care facility located in an R-2 District, where the NBMC
permits such uses only in an MFR District with approval of a use permit. As a
prohibited use, the facility is subject to abatement. Balboa Recovery seeks to continue
to house up to 10 disabled individuals in two units of a duplex building. The facility
currently houses residents who could be denied housing if abatement proceeds while
they are still in residence at the facility.
As to prospective residents: Staff recommended a condition of approval limiting the
maximum occupancy of the facility to six resident clients in the building based on a
staff finding that while there was a significant supply of alternate available residential
recovery housing options serving seven to 12 residents in two units of a duplex. As
discussed above, the applicant preferred to abate this facility rather than operate it at
the population level recommended by staff.
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.
Balboa Recovery Inc. has not provided adequate evidence or information clearly
demonstrating that the size or type of facility requested is necessary for the facility's
financial viability. The information that has been provided by the applicant does not
clearly state why exemption from the Residential District Land Use Regulations
requirements is necessary to make its facilities viable in light of the current market for
the type of services it provides. Balboa Recovery Inc. contends that closing or
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 4 of 14
relocation of the facility would be a significant financial burden. Balboa Recovery Inc.
has provided financial information regarding expenses and revenues, however, the
information has not been verified by evidence of expenses, such as lease agreements
and utility bills.
For this reason, the Hearing Officer is unable to conclude that granting the exemption
to allow the continued use in the R-2 District at the population level of ten (10)
residents by Balboa Recovery Inc. is necessary to make the facility financially viable,
and is unable to analyze whether a particular number of residents in excess of six (6)
is required to make the facility financially viable. However, as discussed above,
Balboa Recovery has proposed an abatement solution which the Hearing Officer
determined was an acceptable solution to Balboa Recovery's financial viability
concerns.
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 Municipal Code authorizes the City to consider the existence of other facilities that
are of a "similar nature and operation" within the City. Based on an inventory
conducted in April 2009, persons wishing to live in Newport Beach in an unlicensed
sober living environment unaffiliated with a formal treatment program have the
following housing opportunities that they can choose from:
• 4 beds at 900 West Balboa (operated by LMS Recovery, with reasonable
accommodation issued to LMS Properties for as long as LMS Recovery operates
the beds in accordance with the terms of the reasonable accommodation); and
• An undetermined number of beds at 494 and 492 Orange Street and 3309 Clay
Street (operated by Pacific Shores Recovery, reasonable accommodation denied,
subject to appeal and abatement); and
• 6 beds at 204 21 st Street (operated by Balboa Recovery, with reasonable
accommodation issued to Balboa Recovery for as long as Balboa Recovery
operates the beds in accordance with the terms of the reasonable
accommodation); and
• An unlimited number of beds via the use of any home in Newport Beach provided
that the occupants reside there as a single housekeeping unit in compliance with·
the City's definition of a single housekeeping unit.
There are also sober livings beds affiliated with a formal treatment program, Sober
Living by the Sea (SLBTS), which are approved and not subject to abatement. For
individuals who wish to reside in a duplex occupied entirely by sober living residents,
60 beds (located in both units of five duplexes) will remain in their current location.
Twenty-four additional beds (located in both units of two duplexes) are currently in
operation but plan to close within 30 months, under the terms of the Zoning Agreement
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 5 of 14
between the City and SLBTS. SLBTS also operates six beds in one unit of a duplex,
als.o due to close within 30 months.
A denial of the reasonable accommodation would not deprive prospective residents of
the opportunity of live in a residential setting with seven to 12 individuals in recovery in
two units of a duplex building. The altemate residential settings also provide self-
paced recovery options that allow residents sufficient time for personal psychological
growth while avoiding the use of alcohol and other substances.
3. Finding: That the requested accommodation will not impose an undue financial
or administrative burden on the City asundue financial or administrative burden"
is defined in Fair Housing Laws and interpretive case law.
Facts in support of finding: Allowing the facility to remain at its current location so long
as 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. To date, there have been no complaints made to the City regarding the
operations of this facility.
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 findings, as to current residents: Allowing current residents to
remain at the facility for the duration of their intended stay does not result in a
fundamental alteration of the City's zoning program. The applicant reports an average
client stay of 300 days. As current residents complete their intended stays and leave
the facility, the facility will reach the population limit approved by the Hearing Officer
through attrition. A limited stay of more than six resident clients during this period will
not fundamentally undermine the purposes of any portion of the Zoning Code.
Facts do not support the finding, as to prospective residents at the population level
requested by the applicant.
Zoning District Consideration: NBMC Section 20.10.010 sets forth the basic purposes
for establishing zoning districts which 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 Section 20.10.010 of the NBMC for the R-2 District
is that the district provide "areas for single-family and two-family residential land uses."
The specific purpose of the Multifamily Residential (MFR) District is to provide for
"medium-to-high density residential development up to approximately 36 dwelling units
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 6 of 14
per gross acre, including single-family (attached and detached), two-family and multi-
family: Residential districts zoned R-2 in the Central Newport area provide medium
density residential development. Therefore, if the facility population is reduced to
achieve a medium level of density, the basic purpose of residential districts zoned R-2
is not undermined from a density perspective.
Section 20.10.020 of the NBMC establishes those uses that are permitted,
conditionally permitted, and prohibited within the R-2 District. In accordance with
Section 20.10.020 of the NBMC, unlicensed residential care facilities are not permitted
in the R-2 District, and are only permitted in the MFR District subject to approval of a
use permit.
The Hearing Officer accordingly finds that by limiting the maximum occupancy to six
residents with one full-time staff member housed among three bedrooms (Unit A)
within a duplex unit, or within one unit of the duplex building with the other unit
occupied by a single housekeeping unit, the intensity of the use would be consistent
with typical residential development intensity in the R-2 District, and would be
compatible with the surrounding two family residential properties. However, staff was
unable to make similar findings of compatibility with surrounding two-family residential
properties at the population level which Balboa Recovery stated it required for financial
viability of the facility.
Balboa Recovery Inc. has indicated that limiting the occupancy to six residents with
one full-time staff member is finanCially infeasible, and has agreed to abate the use
within twelve months of the adoption of this resolution.
Building Code and Life Safetv Consideration: The State Fire Marshal has made the
determination that residential care occupancies with more than six residents have
characteristics that require a certain degree of extra protection for the safety of the
residents. Residential care and housing for more than six residents in a building are
classified as an R-4 occupancy. This occupancy group includes buildings arranged for
social rehabilitation, including alcoholism or drug abuse recovery or treatment for
seven or more clients. A building housing an R-4 occupancy would have to further
comply with building code requirements found in either the 2001 or 2007 California
Building Code. These may include, but are not limited to, vertical and horizontal fire
separation walls, fire suppression systems, alarm and detection systems, and
unprotected window openings. R-4 requirements would present a greater challenge
for the Balboa Recovery Inc. The Hearing Officer determines that allowing the
applicant to continue to operate with more than six resident clients during the
abatement period will not fundamentally alter the nature of a Building Code program.
Use Permit Consideration: Ordinance No. 2008-05 places regulations on all groups
not living as either a single housekeeping unit or a designated "Residential Care
Facilities, Small Licensed" in residential districts. The basic purpose of these
regulations is to ensure (1) that the fundamental purposes of the Zoning Code can be
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 7 of 14
achieved, (2) that adverse secondary impacts produced by group residential uses not
living as a single housekeeping unit can be eliminated, and (3) that the adverse
secondary impacts that Residential Care Facilities, General" and "Residential Care
Facilities, Small Unlicensed" may have on the surrounding neighborhood can be
mitigated. To accommodate the needs of the disabled for housing opportunities,
Ordinance No. 2008-05 provides that non-conforming residential care facilities located
in residential districts may be allowed to continue operating subject to approval of
either a use permit or a request for reasonable accommodation.
Use permits are required for use classifications typically having operating
characteristics requiring 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
stated 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, 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 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 not 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 Balboa Recovery Inc. ceased to provide disabled housing at this
location, the accommodation would no longer be necessary and would also cease.
Balboa Recovery Inc. requested an exemption from the requirement of NBMC Section
20.10.020 that Residential Care, Small Unlicensed uses be established only in a
residential district zoned MFR, with a use permit. Therefore, the City must grant the
requested accommodation only if allowing the applicant's facility to continue operation
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 8 of 14
in its current location without a use permit does not result in a fundamental alteration
of the City zoning program. "Fundamental alteration" has been described in cases
interpreting the FHAA's reasonable accommodation requirement as "undermining the
basic purpose which the requirement seeks to achieve." Therefore, the request must
be granted only if the granting the accommodation does not undermine the basic
purpose of requiring Residential Care, Small Unlicensed facilities to establish only in
districts zoned MFR, and does not undermine the basic purpose of requiring a use
permit for such uses.
NBMC Section 20.98.015 states that the Hearing Officer shall approve, conditionally
approve or deny applications for reasonable accommodation. Therefore, the Hearing
Officer can impose the same conditions through an accommodation that he or she
could impose under a use permit. A reasonable accommodation with appropriate
conditions can mitigate adverse secondary impacts such as noise, overcrowding,
excessive second-hand smoke, and unruly behavior by residents of applicant's facility
to the detriment of neIghbors.
The Hearing Officer determines that if appropriate conditions are placed on the
operations of the facility during its 12-month abatement period, permitting it to operate
at the requested population level will not undermine the basic purpose of the use
permit requirement. Conditions should be applied to the use that require operation
consistent with the basic purposes of NBMC Sections 20.10.010, 20.10.020, and
Chapter 20.91A. The conditions of approval are described below.
1. That the facility agree to a bed cap of no more than 10 resident clients plus two
on-site resident managers, who shall be a qualified recovery specialist;
2. If the applicant obtains a license from ADP to operate a facility for six or less
clients in one of the duplex units, the other unit may only be used to provide
housing for a single housekeeping unit; and
3. Maintaining quiet hours from 10:00 p.m. to 8:00 a.m.;
4. Establishing quiet hours for television use from 10:00 p.m. to 8:00 a.m.;
5. 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.
Essentially, these conditions would require that the facility comply with the
development and operational standards required of similar facilities receiving a use
permit under NBMC Chapter 20.91A for the remainder of its operation at the current
location.
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:
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 9 of 14
A. Whether the requested accommodation would fundamentally alter the
character of the neighborhood.
Balboa Recovery, Inc. requests to continue to house up to 10 disabled individuals in a
facility in both units of a duplex. The requested accommodation would permit a
maximum of 10 disabled individuals in recovery with one resident manager in each
unit of a duplex, all of which are not living as a single housekeeping unit, to live on a
block of single housekeeping units.
With the reduction in resident population recommended by staff, the intensity of the
use would be consistent with the intensity of use that would be produced by single
housekeeping units in two-family residential districts, and would be compatible with the
surrounding two-family residential properties. However, the Hearing Officer is unable
to make the same finding at the population level requested by the applicant.
B. Whether the accommodation would result in a substantial increase in traffic
or insufficient parking.
Parking: The dwelling units occupied by the facility provide two enclosed garage
parking spaces. Of the two onsite spaces available, one is reserved for the resident
manager. Use of the remaining space is assigned by the resident manager.
The Zoning Code requires one on-site parking space per three residential care facility
beds. With 10 beds, the required parking for the facility would be four spaces.
Therefore, the facility currently does not meet the required parking.
Traffic and Generated Trips: The Institute of Transportation Engineers (lTE)
establishes and publishes standards for trip generation rates based on the use
classification of a site. In the case of 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. Based on these standards, a
duplex would generate approximately 13.44 average daily trips, whereas an eight-bed
residential care facility with two additional resident manager beds would generate
approximately 27.4 average daily trips.
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 to minimize
impacts on residential neighborhoods. The City adopted Ordinance No. 2008-005 in
order to implement General Plan Policy LU 6.2.7.
City of Newport Beach
Hearing Officer Resolution
(12430th Street)
Page 10 of 14
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 this block or any of the immediately adjacent blocks. Staff
recommended and the Hearing Officer agrees that granting the reasonable
accommodation with a condition of approval limiting the maximum occupancy of the
facility to six residents and one full-time staff member would not create an
institutionalized environment. .
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 requestfor 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 15301
of the Califomia Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). This
class of projects has been determined not to have a significant effect on the environment and is
exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA
applies only to projects that have the potential for causing a significant effect on the environment
(Section15061(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 it is not subject to
CEQA; and
NOW THEREFORE, BE IT RESOLVED:
Section 1. The Hearing Officer of the City of Newport Beach hereby denies Reasonable
Accommodation No. 2009-012, subject to the Conditions set forth in Exhibit "A" attached hereto
and made part hereof.
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.
EXHIBIT "A"
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 12 of 14
ABATEMENT CONDITIONS ASSOCIATED WITH DENIAL OF
REASONABLE ACCOMMODATION NO. 2009-012
BALBOA RECOVERY INC. at 124 30th Street
1. Abatement Agreement Required. Balboa Recovery Inc., shall enter into an
abatement agreement with the City that will stipulate that the facility at 124 30th Street
shall abate no later than 12 months following the adoption of the resolution denying
the reasonable accommodation request ("Abatement Period"). As a Reasonable
Accommodation, during the Abatement Period, Balboa Recovery Inc. may continue to
operate the facility at 124 30th Street at its current population level of 10 resident
clients and one resident manager in each unit. During the Abatement period, Balboa
Recovery Inc shall comply with the following Conditions:
2. Occupancy Level. The operator Balboa Recovery Inc. hereinafter referred to as
"Operator," shall limit occupancy of the facility to 10 client beds and two on-site
resident manager (one in each unit), both of whom shall be qualified recovery
speCialists. No more than 10 persons in recovery may reside at the facility.
3. Staffi!1g. Operator shall have one qualified manager on-site at all time (24 hours a
day, seven days a week) to appropriately and responsibly manage the facility.
4. Governmental Referrals. Operator shall not provide any services to any client or
house any client who has been referred or caused to be referred to this facility by any
governmental agency, including but not limited to probationers or parolees.
5. Assembly Uses. Assembly uses are prohibited, except those that are limited solely
to client residents of the facility and facility staff.
6. Medical Waste. Any and all medical waste generated through the operation of the
facility shall be disposed of in accordance with the City of Newport Beach's Municipal
Code, all other laws and best industry standards and practices.
7. Trash. Operator shall abide by the City's regulations regarding trash dsposal
including providing the proper amount of trash cans for the property's use (so that
cans do not overflow), placing the cans out no earlier than 7:00 pm the evening prior
to collection, and placing the cans back in the side yard (or other contained area) no
later than 6:00 pm the day of collection.
8. Smoking & Cigarette Litter. Per NBMC Section 2091A.050(A), no clients, guests,
or any other users of the subject property may smoke in an area from which the
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 13 of 14
secondhand smoke may be detected on any parcel other than the parcel upon which
the use is located. Balboa Recovery Inc. will enforce house rules against litter,
including allowing clients, staff, or residents from littering cigarette butts on the
ground, sidewalk, gutter or street.
9. Parking & Garages. Operator shall keep the two (2) designated garage parking
spaces at the facility open and available for parking for staff, and resident clients at all
times. One space shall be designated for use by the on-site resident manager. The
second space shall be designated for use by one client resident.
10. Transportation. No transportation services are provided by the facility operator
11. Quiet Hours. The on-site facility manager shall maintain "Quiet Hours" between
10:00 pm to 8:00 am, daily, where persons on the street or on adjacent properties
cannot hear any noise (including music, TV's, voices) from the facility except in an
emergency.
12. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City upon
the property owner and operator.
13. Deliveries. Any deliveries of business products and other packages and goods to
the facility during weekdays shall be made between the hours of 9:00 am to 5:00 pm.
14. Contact Information. Operator shall provide area residents and the City with a 2417
contact name, phone number and e-mail address to assist residents and the City with
problems or concerns arising from the facility. E-mails or messages left for the
Operator's designated contact shall be returned in prompt manner within the next 24-
hour period.
15. Building and Zoning. Operator recognizes that the subject property has specific
setbacks from the side yards, front yard, and/or back yard per the City's Building and
Zoning Codes. Operator will keep these setbacks clear of obstruction, including
building obstruction. The orderly storage of trashcans is acceptable in setbacks.
16. Facility Nuisances. The subject property shall not be unsafe, unsightly or poorly
maintained. If Operator receives a nuisance violation from the City in regards to any
of these issues, Operator shall correct the violation with seven days or contact the
City directly to negotiate a mutually agreeable timeline.
17. Beaches and Other Common Gathering Areas. Operator's use of the beaches for
meetings, prayer, conversation, or other gatherings shall show due respect to non-
resident visitors, residents, and other beachgoers, thus allowing them to take full
City of Newport Beach
Hearing Officer Resolution
(124 30th Street)
Page 14 of 14
enjoyment of the beach. Operator shall not conduct business on the beach (per
NBMC 10.08.030)
18. Services to Facility's Clients or Residents. Operator will use industry's best
practices to ensure that the facility's clients or residents stay in recovery (including
scheduled substance testing, random sUbstance testing, and encouragement of 12-
Step meetings or counseling). Operator has represented that the facility operates
with an average client stay of 300-days. Operator shall use bet efforts to maintain, at
a minimum, average client stay of 300-days. Operator shall ensure that any client or
resident removed from Operator's program or facility has the resources necessary to
return home.
19. Federal, State and Local Laws. Operator shall comply with all federal, state, and
local laws. The issuance of this reasonable accommodation shall not constitute a
waiver of the requirements of any federal, state or local law, including the
requirements of the California Building Code and Fire Code.
# # #
Attachment No.5
Applicant's Written Request
Dated February 2,2010
February 1,2010
To: Janet Brown
8R
BALBOA RECOVERY
3419 Via Lido Ste. 309
Newport Beach, CA 92663
www.balboarecovery.com
From: Kevin Cullen
BALBOA RECOVERY
Re: 124 30th Street
Newport Beach, CA 92663
Balboa Recovery would like to request to amend our original reasonable
accommodation application based on a change of circumstance that would allow
us to remain in operation at the 124 30th Street location. Balboa Recovery has had
no complaints made against us at any of our locations. During the permitting
process the City of Newport Beach recommended that we receive our permit to
remain in operation at that location with a reduced bed count. We feel it is
important for us to remain in business at that location because there is still an
obvious need. In our original application we stated all the reasons why that
location is ideal and nothing has changed.
We ask to reduce the beds to 3 upstairs with a house manager and 3 downstairs
with a house manager. Since the safety of our clients is of the upmost concern we
feel it necessary to have person in charge of each house. It is important for the
house manager to be able to monitor the comings and goings of our residents.
Sincerely,
Kevin Cullen
Balboa Recovery
949-400-7120
Attachment No.6
Correspondence between City and
Applicant, dated May 28,2010
Brown. Janet
From:
Sent:
kcullen [kcullen@oceanrecovery.com]
Friday, May 28, 2010 3:15 PM
To: Brown, Janet
Subject: re: 124 39th Street -Balboa Recovery Reasonable Accommodation Hearing
Looks good Janet.
Have a great weekend!
Kevin Cullen
Director of Admissions
OCEAN RECOVERY
\v-ww.oceanrecoveJ;y.com.
800.641.2388
949.723,2388 Office
949.723.1288 Fax
This email and any files transmitted with it are confidential and are intended solely for the use of the individual or entity
to Which they are addressed. This communication may contain material protected by HIPAA legislation (45 CFR, Parts 160
& 164). If you are not the intended recipient or the person responsible for delivering this email to the intended recipient,
be advised that you have received this email in error and that any use, dissemination, forwarding, printing or copying of
this email is strictly prohibited. If you have received this email in error, please notify the sender by replying to this email
and then delete the email from your computer.
From: "Brown, Janet" <JBrown@newportbeachca.gov>
Sent: Friday, May 28, 2010 2:31 PM
To: kcullen@oceanrecovery.com
Subject: 124 39th Street -Balboa Recovery Reasonable Accommodation Hearing
Good afternoon, Kevin.
Attached please find a copy of a letter which is being mailed to you today. The purpose of the letter is
to confirm that the City has scheduled a hearing before a hearing officer on June 11, 2010, at 3:00
p.m., and to confirm there have been no changes in the information submitted in your original
reasonable accommodation application for this facility (located at 124 39th Street) other than the
reduction in the number of resident clients.
If you have any questions or comments after you read the letter, please don't hesitate to contact me.
Thank you, and have a wonderful holiday weekend.
Janet Johnson Brown
Associate Planner
City of Newport Beach
(949) 644-3236
jbrown@newportbeachca.qov
1
Attachment No. 7
Correspondence received from public
regarding this application
Brown, Janet
From:
Sent:
To:
Subject:
Dear Ms. Brown:
Douglas M. Wood [balboawood@yahoo.comj
Thursday, June 03, 2010 10:30 AM
Brown, Janet
BalboA Recovery Hearing
I will be out of town and unable to attend this hearing. However, I would like to express my
view for the record. The appellant has had sufficient consideraton and the key point is
overconcentration of rehab facilities on the Peninsula.
Douglas M. Wood
Property owner at 1119 W. Bay and 1214 E. Balboa Blvd.
1
Brown. Janet
From: Brown, Janet
Sent:
To:
Thursday, June 03, 2010 11:37 AM
'Denys Oberman'
Subject: RE: Group Residential Uses Update -Balboa Recovery
Good morning, Ms. Oberman.
This is essentially a new application for reasonable accommodation, and the NBMC does not limit
how many times a disabled individual or disabled housing provider may apply for reasonable
accommodation. Therefore, staff has complied with all requirements for a new application, including
public notice requirements. However, because the new application was based on facts identical to
those the Hearing Officer reviewed in 2009, with the exception of the lower number of resident clients
requested, the most efficient way to process the application is as an amended reasonable
accommodation request. This is to preserve City resources, and to address concerns raised in the
federal litigation that the application process presents an excessively burdensome barrier to disabled
housing. However, the distinction in this case between a new and an amended request is non-
substantive, because all the noticing and processing formalities for a new application have been
observed.
Hearing Officer Judy Sherman will conduct the hearing.
If you have any other questions or comments, please let me know.
Janet Johnson Brown
Associate Planner
City of Newport Beach
(949) 644-3236
jbrown@newportbeachca.gov
From: Denys Oberman [mailto:d.oberman@obermanassociates.com]
Sent: Wednesday, June 02, 2010 11:00 AM
To: Brown, Janet
Subject: RE: Group Residential Uses Update -Balboa Recovery
Importance: High
Thank you for this Notice. Do not understand---this operator already exhausted the Administrative process provided by the
City ordinance.
Did already receive approval to continue operations of related other facilities close by.
Who will be conducting the hearing?
Thank you for your response and clarification concerning these items.
Regards,
Denys H. Oberman, CEO
OBERMAN
Strategic Consulting 8. Trans.action.
OBERMAN Strategic Consulting & Transactions
2600 Michelson Drive, Suite 1700
Irvine, CA 92612
Tel (949) 476-0790
1
Cell (949) 230-5868
Fax (949) 752-8935
Email: d.oberman@obermanassociates.com
CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is
legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are
hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied information is strictly
prohibited. If you have received this transmission in error, please notify us immediately at 949/476·0790 or the electronic address above, to arrange
for the return of the document(s) to us.
From: Brown, Janet [mailto:JBrown@newportbeachca.gov]
Sent: Tuesday, June 01, 2010 5:48 PM
Subject: Group Residential Uses Update -Balboa Recovery
To all interested parties-
Good afternoon. Please be adVised that a public hearing will be conducted on Friday, June 11, 2010 at 3:00 p.m. in the
City Council Chambers. The purpose of the hearing is to consider an amended request submitted by Balboa Recovery
due to changed circumstances for property located at 124 30'h Street.
You may recall that in July 2009, the applicant's request for relief from the requirements of the Newport Beach
Municipal Code to allow the continued operation of an existing sober living facility for up 10 female adult resident
clients and two resident managers was denied without prejudice. The Hearing Officer found that the required findings
to grant the reasonable accommodation could not be made with 10 resident clients, and gave the applicant a one year
period in which to abate the use. Due to changed circumstances, the applicant amends the request for reasonable
accommodation to allow the continued operation of the existing facility with no more than six female adult resident
clients and two resident managers in two units of a duplex building.
The staff report and related documents will available for review at the Planning Department, and posted on the City's
website on the Monday prior to the hearing.
If you have any questions or comments, please do not hesitate to contact me. Thank you.
Janet Johnson Brown
Associate Planner
City of Newport Beach
(949) 644-3236
jbrown@newportbeachca.qov
2
Brown. Janet
From:
Sent:
To:
Subject:
Brown, Janet
Tuesday, June 01,20105:52 PM
'joe reiss'
RE: Balboa Recovery
Good afternoon, Mr. Reiss.
Please see the description below from an email that I just sent out to the "interested parties" list
regarding the Balboa Recovery facility located at 124 30th Street.
If you have any questions, please don't hesitate to contact me.
Janet Johnson Brown
Associate Planner
City of Newport Beach
(949) 644-3236
jbrown@newportbeachca.gov
To all interested parties -
Good afternoon. Please be advised that a public hearing will be conducted on Friday, June 11, 2010
at 3:00 p.m. in the City Council Chambers. The purpose of the hearing is to consider an amended
request submitted by Balboa Recovery due to changed circumstances for property located at 124 3dh
Street.
You may recall that in July 2009, the applicant's request for relief from the requirements of the
Newport Beach Municipal Code to allow the continued operation of an existing sober living facility for
up 10 female adult resident clients and two resident managers was denied without prejudice. The
Hearing Officer found that the required findings to grant the reasonable accommodation could not be
made with 10 resident clients, and gave the applicant a one year period in which to abate the use.
Due to changed circumstances, the applicant amends the request for reasonable accommodation to
allow the continued operation of the existing facility with no more than six female adult resident clients
and two resident managers in two units of a duplex building.
The staff report and related documents will available for review at the Planning Department, and
posted on the City's website on the Monday prior to the hearing.
If you have any questions or comments, please do not hesitate to contact me. Thank you.
From: joe reiss [mailto:jreissO@gmail.com]
Sent: Tuesday, June 01, 2010 11:37 AM
To: Brown, Janet
Subject: Balboa Recovery
Hi Janet... .. my name is Joe Reiss and I live on 30th Street ...... I am curious what is occurring with Balboa
Recovery at 124 30th St. The last we heard they were going to close down in July of this year. One of my
1
neighbors said he saw a public hearing notice that was up for a short time, but is now gone. Are they trying to
extend their operation? Is there a public hearing coming up on this location? Thanks for your help ....... Joe
2