HomeMy WebLinkAboutSS3 - Federal Law and Group HomesCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Study Session Agenda Item No. 3
February 10, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Robert Burnham, City Attorney
644 -3131, rburnham(a)city.newport -beach ca us
SUBJECT: Federal Law and Group Homes
ISSUE: To provide the City Council with an overview of the Federal law that impacts
the regulation of "Group Homes" and provide direction to staff regarding any desired
amendments to the Newport Beach Zoning Code (Zoning Code).
RECOMMENDATION: Receive report and provide direction regarding any
amendments to the Zoning Code the City Council may want to initiate.
DISCUSSION: I have attached a memo from Jeff Goldfarb discussing the relationship
between the Fair Housing Act Amendments of 1988 (FHAA) and provisions of the
Zoning Code regulating group homes. Mr. Goldfarb's memo includes an analysis of our
current group home regulations and suggests amendments the City Council may want
to consider to ensure compliance with the FHAA and relevant decisional law.
In summary, the FHAA prevents the City's from adopting or enforcing zoning ordinances
that impact group homes for handicapped individuals differently than non - handicapped
residential uses in the same zone unless the City: (a) can prove the ordinance is
necessary to further a legitimate governmental interest; and (b) reasonably accommodates
handicapped individuals by waiving enforcement unless we can prove that a waiver would
impose an undue burden on the City and undermine the basic purpose of the ordinance.
Mr. Goldfarb's analysis of our Zoning Code suggests that certain amendments may be
appropriate to enable us to enforce the Zoning Code in a manner consistent with Federal
and State statutory and decisional law.
Submitted by:
ILL
Robert Burnham
City Attorney
MEMORANDUM
TO: City Attorney Robert Burnham
Assistant City Attorney Robin Clauson
FROM: Jeffrey A. Goldfarb, Rutan & Tucker, LLP
DATE: February 6, 2004
RE: Regulating Group Homes
INTRODUCTION:
Your office has asked us to outline the regulatory framework governing local legislation and
enforcement of the City's zoning laws on Group Homes. As explained below, the City's ability to
regulate such uses is greatly circumscribed by the requirements of the Fair Housing Amendments
Act of 1988,42 USC § 3601 (the "FHAA ").
SUMMARY:
The FHAA restricts the City's ability to adopt and enforce zoning or other regulations which
affect group homes for handicapped individuals ( "Group Homes ") differently than similarly
situated non - handicapped residential uses in the same zone. The FHAA requires a municipality to
demonstrate that any regulation which impacts Group Homes differently than traditional residential
uses be necessary to further a legitimate governmental interest. Furthermore, the FHAA requires
municipalities to waive the enforcement of such regulations when they adversely impact
"handicapped" individuals unless the municipality can demonstrate that such a waiver would
impose an undue burden on the municipality and undermine the basic purpose which the regulation
seeks to achieve.
Regulations that typically have been found to violate the FHAA include, but are not limited
to, the following: prohibitions on Group Homes in residential zones which allow other group living
arrangements (boarding homes, fraternities and sororities, and apartments); conditional use permit
requirements for Group Homes in residential zones if other group living arrangements are not
similarly regulated; dispersal requirements mandating a certain distance between Group Homm
annual review of Group Homes' operating permits if not equally applied to other group living
environments; and maximum occupancy levels for group homes not similarly imposed on other
group living environments.
The City's zoning ordinance regulates group homes by subdividing group homes into
several categories and specifying whether each is permitted, conditionally permitted or prohibited in
each of the City's residential zones. While the regulatory scheme is relatively sound, we have
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attached a list of possible amendments to the zoning code (Exhibit "A ") the City Council may want
to consider.
DISCUSSION:
A. FHAA Limits on Zoning Code Enforcement
This portion of the memorandum addresses the manner in which the FHAA limits the City's
ability to regulate Group Homes through enforcement of the City's zoning ordinance. For the
purpose of this memo, the term "Group Home" is defined as a residential facility for persons
defined by the FHAA as being "handicapped." The FHAA broadly defines "handicapped person"
as either a person who is physically or mentally impaired in a way which limits one or more life
activities, or a person who is not so impaired but is viewed as impaired by society. (42 USC
§ 3602(h); US. v. Southern Management Corp. (4th Cir. 1991) 955 F.2d 914.) As a result, a Group
Home protected by the FHAA includes a home for the physically and/or mentally retarded,
a convalescent home, and a half -way house or recovery home for abstinent, recovering alcoholics
and drug addicts. (See, e.g. US. v. Southern Mgmt. Corp. (4h Cir. 1992) 955 F.2d 914, 917 -23.)
Conversely, if a facility does not provide a residence for "handicapped persons," the facility is not
protected by the FHAA.
The FHAA prohibits "disparate treatment" or "intentional discrimination" against
handicapped persons (including individuals with substance abuse histories) vis -a -vis non
handicapped persons that impacts the availability of housing for handicapped persons. The FHAA
also prohibits actions which simply have the effect of discriminating against handicapped persons
with regard to the availability of housing, regardless of whether such impact was intended (so- called
"disparate impact" discrimination). Congress clearly intended the FHAA's prohibitions to apply to
municipal zoning and land use regulations' Moreover, the FHAA also requires governmental
entities to make "reasonable accommodations necessary to afford persons with disability equal
housing opportunities." (42 USC § 4604(f)(3)(B).) Therefore, even though a regulation does not
directly discriminate against handicapped persons, the City might nonetheless be required to waive
such a regulation if the waiver is "(1) reasonable and (2) necessary (3) to afford handicapped
persons equal opportunity to use and enjoy housing. (See, e.g., Corp. of the Episcopal Church in
Utah v. West Valley City (D. Utah 2000) 119 F.Supp.2d 1215, 1221.). Each of these restrictions on
municipal regulation are discussed below.
1. Intentional Discrimination Under the FHAA.
The FHAA prohibits cities from intentionally discriminating against handicapped persons
by adopting zoning or other regulations which limit the housing opportunities for the handicapped.
A city will be held to have intentionally discriminated against handicapped persons when its actions
I In the [louse of Representatives' Committee Report on the FHAA, the Committee noted that it intends
that the prohibition against discrimination against those with handicaps apply to zoning decisions and
practices. "The act is intended to prohibit the application of special requirements through land use
regulations, restrictive covenants, and conditional or special -use permits that have the effect of limiting the
availability of such individuals to live in the residence of their choice." (H.R. Rep. No. 100 -711, 100th
Cong., 2d Sess. 24.)
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restrict housing opportunities for handicapped persons vis -a vis non - handicapped persons and the
regulations are based upon the handicapped status of the resident. "The `intent' of which the court
speaks is the legal concept of intent, to be distinguished from motive. To prevail on a claim of
discriminatory treatment, plaintiff is required to show only that the [handicapped status] of the
people who were to live in the [proposed facility] was a motivating factor in the [city's] decision.
(Stewart B. McKenny v. Town Plan and Zoning Commission (D. Conn. 1992) 790 F.Supp. 1197,
1211, citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252, 266.) The plaintiff is not required to prove that "the defendants were motivated by some
purposefully malicious desire to discriminate against [handicapped persons] or that the defendants
were motivated solely, primarily, or even predominantly by the [handicapped] status of the
[applicant's] future tenants."
A significant number of cases have found that municipalities' adoption and/or enforcement
of various code provisions regarding the use of residential property for Group Homes intentionally
discriminates against handicapped persons in violation of the FHAA. In Potomac Group Home v.
Montgomery County, Maryland (D. Md. 1993) 823 F.Supp. 1285, the Court noted that "to prove
discriminatory intent, a plaintiff need only show that the handicap of the potential residents of a
Group Home, a protected group under the FHAA, was in some part the basis for the policy being
challenged. [Citations.] Simply put, the inquiry under a disparate treatment analysis is whether
similarly situated persons or groups are subject to differential treatment." (Id. at 1295.) The
Potomac Court invalidated a County requirement that a Group Home owner notify neighboring
property owners of the type of Group Home planned, the nature of the anticipated handicapped
residents, and the contact person within the county health department to whom questions or
complaints about the proposed Group Home may be addressed. The Court ruled that the regulation
violated the FHAA as it constituted "intentional discrimination" because this was a requirement not
generally imposed against non - handicapped housing and because requirement was based upon the
handicapped status of the resident. The court therefore ruled the regulation invalid as it violated the
FHAA . (See also, Horizon House Development Services v. Township of Upper South Hampton
(1992) 804 F.Supp. 683 [zoning requirement mandating homes for the handicapped be separated
from each other by no less than one thousand (1,000) feet violated FHAA because the determination
of whether the separation requirement applied was dependent on the handicapped status of the
residents'' -].)
Courts have interpreted the "intentional' element of the discrimination claim very loosely.
Recognizing that cities might attempt to disguise their discriminatory intent, the Court has allowed
plaintiffs' cases to go forward once they simply establish an "inference" of intentional
discrimination. Once a plaintiff makes this relatively easy preliminary showing, the burden shifts to
the city to demonstrate that the regulation stemmed from a legitimate, non - discriminatory reason or
z The court also rejected the argument that the dispersal requirement did not discriminate against
handicapped persons, but rather was adopted in order to assist such persons' assimilation into the community
by ensuring there was not an overconcentration or "ghettoization" of handicapped people. The court
concluded that the dispersal requirement was based on unfounded or stereotypical fears regarding
handicapped persons and was not and could not have been supported by a rational basis or a legitimate goal.
As a result, the court found that the ordinance on its face violated the FHAA because. by placing a cap on the
number of handicapped persons that can live within the community, it constituted an intentional denial of
housing based on the handicap status of the Group Homes' future residents. (Id. at 696 -97.)
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objective. The Ninth Circuit applied this test in Gamble v. City of Escondido (9th Cir. 1996) 104
F.3d 300. The Court stated that to establish a prima facie case for disparate treatment or "intentional
discrimination" under the FHAA, the plaintiff need only show: (1) plaintiff is a member of a
protected class; (2) plaintiff applied for a permit and was qualified to receive it; (3) the permit was
denied despite plaintiff being qualified; and (4) defendant approved a permit for a similarly situated
party during a period relatively near the time plaintiff was denied its permit. (Id. at 305.) The Court
then noted that if the plaintiff makes the preliminary showing, the burden shifts to the city to
articulate a legitimate non - discriminatory reason for its action. If the city can make such a showing,
the burden again shifts back to the plaintiff to demonstrate that the articulated rationale for the
action was mere pretext.
In Gamble, the discriminatory treatment claim stemmed from the city's denial of a building
permit to construct a Group Home in the city's residential district. The city denied the building
permit because the Group Home was "too large for the lot and did not conform in size and bulk to
the neighboring structures." (Id. at 303.) In rejecting the plaintiff's discriminatory treatment claim,
the court first noted that the complaint did not allege that the city granted a permit to similarly
situated parties relatively near the time the city denied the plaintiff's permit. As a result, the court
found that the plaintiff had not established a prima facie case. The court nevertheless continued the
analysis by noting that the city satisfied its burden by demonstrating that the reasons for the denial
of the building permit (i.e., concern for the character of the neighborhood) was a legitimate non-
discriminatory reason for the denial of the building Permit. (Id. at 305.) As the plaintiff was unable
to demonstrate that such a rationale is pre - textual, the court found that the plaintiff had failed to
make a case for discriminatory treatment. (Id at 306.)
These cases demonstrate that, regardless of how the court articulates the test, the FHAA
requires the adoption or enforcement of regulations affecting Group Homes to be based on facts
completely unrelated to the handicapped status of the facility's residents. As a result, any attempt to
regulate Group Homes that is, or appears to be, based on a concern that handicapped persons
(including persons with substance abuse problems) will live in a particular area or zone, or a desire
to reduce the housing opportunities available to handicapped persons in an area or zone, will likely
run afoul of the FHAA.
2. Discriminatory Effect Under the FHAA.
A zoning regulation may also nm afoul of the FHAA if it simply has a discriminatory
impact or effect on handicapped persons. When challenging a zoning regulation on the theory that it
has a discriminatory impact, the plaintiff need only show that the regulation negatively impacts
housing opportunities for handicapped persons. If such an impact is shown, the burden is then
placed on the city to demonstrate that the regulation furthers "a legitimate, bona fide governmental
interest and that no alternative to the regulation or action would serve that interest with less
discriminatory effect." (See, e.g., O.cford House. Inc. v. Town of Babylon (E.D. NY 1993) 819
F.Supp. 1179, 1182.)
3 Notably absent from this case was the typical outpouring of neighbor opposition to the Group Home,
a fact that has regularly been used to argue the action being challenged is a mere pre -text for discrimination
against handicapped persons.
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(a) Finding; of Discriminatory Effect.
A plaintiff must establish "at least that the defendant's action had a discriminatory effect" to
establish "disparate impact" or discriminatory effect" under the FIIAA. (Gamble v. City of
Escondido, supra, 104 F.3d at 306.) In Gamble, the plaintiff claimed the city's denial of a
conditional use permit and building permit to construct a 10,360 square foot group home with a
10 car parking lot in a traditional single family neighborhood had a disparate impact on handicapped
housing opportunities in violation of the FIIAA. The Ninth Circuit noted that a disparate impact
case is made when the occurrence of certain outwardly neutral practices (i.e., denying permits for
structures physically inconsistent with the surrounding property) create a significantly adverse or
disproportionate impact on handicapped persons' housing opportunities. (1d) The Gamble plaintiff
failed to establish his disparate impact case because he presented no statistics or other proof
demonstrating that the city's permit practices have had or will have a significantly adverse or
disproportionate impact on handicapped persons' housing opportunities. (Id. at 306.) Rather, all the
plaintiff could show was that there remained in the community a significant need for handicapped
housing facilities and that such facilities needed to be larger than traditional single family structures.
As the court noted, "a plaintiff must prove actual discriminatory effect, and cannot rely on
inference." The court found that all the plaintiff had demonstrated is that the city's policy of
limiting the issuance of building permits in the single family zone to buildings whose size was
comparable to its neighboring properties merely limits opportunities for large group living. This
conclusion, however, does not affect handicapped living groups differently than other large living
groups. As a result, the court found the plaintiff failed to demonstrate that the city's policy had a
discriminating impact.
(b) Establishing the Challenged Regulations Are Necessary To
Promote A Legitimate Governmental Interest.
As previously noted, once a plaintiff demonstrates a rule or regulation which is neutral on its
face actually has a discriminatory effect on handicapped persons' housing opportunities, the burden
shifts to the city to demonstrate: 1) that the rule or condition serves a legitimate governmental
purpose; and 2) the rule represents the least discriminatory means to serve that governmental
purpose. Oxford House, Inc. v. Town of Babylon (E.D. NY 1993) 819 F.Supp. 1179, is illustrative.
In Oxford House, plaintiffs sought to enjoin the town from enforcing its single- family zoning
regulations against a proposed alcohol recovery home. Under the town code, a single - family
dwelling must be occupied by: (1) persons related by blood, marriage, or adoption; or (2) by no
more than four unrelated persons. Plaintiffs established a prime facie case by demonstrating that
recovery homes cannot function with only four unrelated persons living together because the
recovery process requires a critical mass of recovering persons in the same residential environment
to be effective. The court therefore concluded that because recovering alcoholics need to live with
more than four unrelated persons to effectuate recovery, the "rule of four' adversely impacted their
access to adequate housing. (Id. at 1183.) The burden then shifted to the town to prove that its
4 (See also, Oxford House, Inc. v. City of,41bany (N.D. NY 1993) 819 F.Supp. 1168, 1176 [ "plaintiffs
assert the handicap requires them to live in close proximity -- in groups of six or more -- to provide necessary
and moral support and counseling during their road to recovery"].)
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actions furthered a legitimate governmental interest and that there were no less discriminatory
alternatives to serve that governmental interest.
The town asserted that the "rule of four" was designed to maintain the residential character
of the areas zoned for single- family dwellings. If more than four unrelated persons are permitted to
live together, there will be a significant amount of transiency, which is inconsistent with the single
family zone. Thus, the town argued, any discriminatory effect the rule of four may have on the
recovery homes is due to the plaintiffs' transiency and failure to live as a family, not because of
their handicap. (1d) The court found that, although the town's interest in its zoning requirements
was substantial, that interest was not furthered by the rule of four. The court found that the history
of plaintiffs' recovery home demonstrated that their operation did not in any way do harm to the
residential character of the neighborhood. The court therefore concluded that because the town
failed to legitimize a policy that had a discriminating impact on housing for the handicapped, the
rule of four violated the FHAA.
Finally, even if the challenged regulations further the legitimate governmental interest, the
town has the added burden of demonstrating that there is no less restrictive means to further that
substantial governmental interest. In ,Stewart B. McKenny n. Town Plan and Zoning Commission,
supra, 790 F.Supp. 1197, the plaintiff challenged a requirement that Group Homes obtain a special
exemption permit in order to locate within a single- family residential zone. The town attempted to
justify the requirement by arguing that a special exemption permit forces the Group Home to
undergo an analysis which is necessary to ensure that the home would be consistent with the
objectives of the town's single - family zone. After reaching the same conclusion as did the Town of
Babylon court (i.e., that the plaintiff made a prima facie case by showing the policy had a
discriminatory effect against handicapped persons' housing opportunities), the court concluded that
the town's regulations violated the FHAA because there existed significantly less discriminatory
alternatives available for the town to address its legitimate concerns. "The town could use its
traditional police powers to ensure that the property is used in a manner conforming to a residential
zone, to address any health or law enforcement problems that may arise, and to protect the welfare
of the prospective tenants and the neighborhood. If a plaintiff operates the house in a manner in
violation of the regulations, the town can investigate and issue a cease and desist order as it could
with any other residential property." (Id at 1220.)
3. Affirmative Duty to Provide "Reasonable Accommodation ".
In addition to prohibiting the adoption of regulations which are found to adversely impact
housing opportunities for handicapped persons as a group, the Fair Housing Act has also been
interpreted to require cities to waive valid regulations or make other "reasonable accommodations"
to ensure housing is available for handicapped persons on the same basis as it is available to others.
Specifically, the FHAA states that it is a discriminatory practice to refuse to make "reasonable
accommodations in rules, policies, practices, or services when such accommodation may be
necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling."
(42 USC C 3604(f)(3)(B).) As a result, even if a Group Home regulation was validly adopted, the
City could be required, under certain circumstances, to waive the regulation if it restricted access to
housing by handicapped persons.
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"'Reasonable accommodation' means changing some rule that is generally applicable to
everyone so as to make its burden less onerous on the handicapped individual." (Oxford House V.
City of Albany (N.D. N.Y. 1993) 819 F.Supp. 1168.) A reasonable accommodation is required
unless it would result in a fundamental alteration in the nature of a program or would impose undue
financial or administrative burdens on the city. (See, U.S. v. Village of Marshall, Wisconsin (W.D.
WI 1991) 787 F.Supp. 872, 878.) In Oxford House, Inc. v. Cherry Hill (D. N.J. 1992) 799 F.Supp.
450, the court gave the following example to crystallize the concept of a reasonable
accommodation: "Thus, where everyone is provided with `equal access' to a building in the form of
a staircase, reasonable accommodation to those in a wheelchair may require building a ramp."
(Id. at 642, fii. 25.)
The affirmative duty to provide a reasonable accommodation was discussed in great detail in
Hovsons, Inc. v. Town of Brick (3rd Cir. 1996) 89 F.3d 1096. There, the Town of Brick prohibited
nursing homes in the R -R -2 zone but provided a variance procedure to allow such uses at the
discretion of the town. An applicant for a nursing home for the handicapped sought a variance to
locate the nursing home in the R -R -2 zone. The town denied the variance and the applicant sued
under the FHAA claiming that the town violated its affirmative duty to provide a reasonable
accommodation by granting the variance.
The court of appeal agreed with the nursing home applicant. First, the court noted that the
town, and not the applicant, has the burden of demonstrating that it has reasonably accommodated
handicapped persons. (Id. at 1103.) The question remained, however: When is an accommodation
"reasonable "? Finding the precise obligations encompassed by the FHAA's affirmative duty to
reasonably accommodate are ambiguous, the court looked to the legislative history of the Act for
guidance. The court noted that the House Report on the FHAA demonstrated that "the FHAA is
intended to prohibit the application of special requirements through land use regulations ... that
have the effect of limiting the availability of such individuals to live in the residence of their choice
in the community." (Id at 1105, citing H.R. Rep. No. 711, 100th Congress, Second Session 24.)
The court thus reasoned that the town must waive its zoning requirements and therefore grant the
requested variance, unless the town could satisfy its burden of proving the accommodation
proffered by the nursing home (i.e., grant the variance) was not "reasonable." The court ruled that a
town can satisfy its burden by demonstrating that it could not have granted the variance without (1)
incurring undue financial and administrative burdens on the town; (2) incurring undue hardship
upon the town; or (3) requiring a fundamental alteration in the nature of the town's zoning program.
(Id)
Applying the above analysis, the court found that the town could not make the required
showing. The court concluded that the town failed to satisfy either of the first two methods of
proving the requested accommodation was not reasonable because granting the variance would not
"saddle the Township of Brick with undue financial and administrative burdens or otherwise result
in the imposition of an undue hardship." (Id. at 1105.) The court reasoned that the nursing home
would not require substantially more municipal services than other living groups. "The mere fact
that the employees and residents of [the nursing home] will at times require the assistance of local
police and other emergency services does not raise to the level of imposing a cognizable admini-
strative and financial burden upon the community.- (Id) The court also concluded the town could
not demonstrate that granting the variance would undermine the town's zoning. In reaching this
conclusion, the court essentially determined that the nursing home was not a land use that was so
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substantially different from other land uses in the R -R -2 zone as to "fundamentally undermine the
town's zoning scheme." (Id)
B. Analysis of City's Existing Group Home Regulations.
1. Group Home Categories In The City Code
The City's zoning ordinance creates several categories of Group Home -type uses:
"Group residential" which is defined as "shared living quarters without separate kitchen or
bathroom facilities for each room or unit. This classification includes boarding houses,
dormitories, fraternities, sororities, and private residential clubs, but excludes residential hotels"
(Newport Beach Municipal Code ( "NBMC ") § 28.05.030(B)); "Residential care. limited" which
is defined as "twenty -four hour non - medical for six or fewer persons in need of personal
services, supervision, protection, or assistance essential to sustaining the activities of daily
living" (NBMC § 28.05.030(D)); and "Residential care. general" which is defined as "twenty -
four hour non - medical care for seven or more persons, including wards of the juvenile court, in
need of personal services, supervision, protection, or assistance essential to sustaining the
activities of daily living. This classification includes only those services and facilities licensed
by the State of California." (NBMC § 28.050.040(R).) The City's Residential Zoning Matrix
(NBMC § 20.10.020, the "Matrix ") purports to specify whether these uses are permitted in the
City's residential zones and any conditions such as a use permit.
2. Residential Zoning Categories
The City's residential zones are divided into five categories: residential agricultural
(RA), single family residential (R -1), restricted two family residential (R -1.5), two family
residential (R -2), and multi - family residential (MFR). The Matrix contains the list of prohibited,
permitted and conditionally permitted uses in these residential zones. According to the Matrix,
"Group Residential" uses are only permitted in the R -A zone, while "Residential Care, Limited'
is permitted in all residential zones. "Residential Care, General" is permitted in any residential
zone but only if the applicant first obtains a conditional use permit.
Although it is not entirely clear, it appears the City intends that all of its residential zones
be defined by reference to the number of "family units" that can live in the dwelling unit or units
located on the property 5. This formulation limits the "single family zone" to one family in one
dwelling unit per lot, while the "two - family residential zone" allows two dwelling units on the
property but continues to limit that use to one family per dwelling unit. Similarly, the "multi
family zone" permits multiple dwelling units, but again limits the occupancy to one family per
dwelling unit (i.e., apartments, etc.) (NBMC § 20.05.030). "Family," in turn, is defined as "two
or more persons living as a single housekeeping unit within a dwelling." The California
Supreme Court has characterized a "single housekeeping unit" as living groups that "bear the
generic character of a family unit as a relatively permanent household." (Santa Barbara v.
Adamson (1980) 27 Cal.3d 123, 134.) As such, with one exception which we will discuss below.
' We reach this conclusion based upon the fact that the zoning designations include the word "family'
(i.e., single family zone, two - family zone, etc.), and the code then defines the word "family." Presumably
the use of the word "family" in the zoning name was intended to call out the nature of the occupancies
within the zone.
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the code only allows people to live together in a dwelling unit in any residential zone if they live
as a "single housekeeping unit" This is true regardless of the particular residential zone. This
issue is vitally important for purposes of analyzing whether the City's zoning regulations on
group home uses violate the FHAA. If we are correct in our understanding that the City intends
all dwelling units in its residential zones to be occupied by groups living together as "single
housekeeping units," the City's Zoning Ordinance does not discriminate against handicapped
persons in the provision of housing, except for the Residential Care. General category, which is
discussed below. If we are wrong, however, the City's zoning ordinance likely violates the
FHAA in several respects.
Based upon the forgoing, reference to the Matrix alone will not provide an accurate
account of the residential uses permitted in the specific zones. This is because the definition of
"family" includes the following caveat: "The term `family' shall not apply to residential care
facilities for six or fewer developmentally disabled, mentally disordered, or otherwise
handicapped persons." (NBMC § 20.03.030.) Although the language can be clearer, it would
appear the intent was to eliminate the "family" requirement for living groups of six or fewer
handicapped persons. Because abstinent drug or alcohol addicted persons are "handicapped"
persons under the FHAA, six or fewer of them are permitted to live together in a dwelling even
though they are not living as a single housekeeping unit. Accordingly, even thought the Matrix
would appear to exclude Group Residential uses from all residential zones except the R -A zone,
to the extent the Group Residential is composed of not more than six persons who are
"developmentally disabled, mentally disordered, or otherwise handicapped persons," they would
be permitted in the same way as a traditional "family."
Given the importance of this issue, we recommend that various provisions of the City's
Zoning Ordinance be revised both to clarify this important distinction and to reflect the way the
City has been interpreting its code.6 These recommendations are contained in Appendix "A" to
this Memorandum.
(a) The Regulation of Group Residential (No Onsite Service) Uses.
We believe that with a few minor changes, the City's regulation of "Group Residential"
uses complies with the requirements of the FHAA as interpreted by the Ninth Circuit. Recall
that "Group Residential" is defined as "shared living quarters without separate kitchen or
bathroom facilities for each room or unit. This classification includes boarding houses,
dormitories, fraternities, sororities, and private residential clubs, but excludes residential
hotels.' "7 ( "NBMC " § 28.05.030(B).) Except as provided below, this category applies to all
residential groups who: (1) do not live together as a "single housekeeping unit" and (2) offer no
onsite services. The most prevalent type of recovery home will fit within this category —a sober
b For instance, we believe the City probably has not enforced the requirement that the occupants of
each dwelling unit in the multi- family zone live together as a single housekeeping unit. Rather, it is more
likely that this zone is simply a multiple dwelling emit zone where groups of roommates (such as young
adults, college students, etc.) live together as somewhat fungible roommates rather than single
housekeeping units. For this reason, we will recommend changing the name of this zone from "multi -
fondly residential" to "multi -unit residential."
7 These uses are distinguished from "Residential Care. Limited" and Residential Core, Genera P"
because they do not involve the provision of any services
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living environment where no services are provided but the residents assist each other in their
12 -step programs through meetings and mutual support. Because the code exempts a living
group of six or fewer handicapped persons from the requirement that they live together as a
single housekeeping unit, a group home of six or fewer persons are currently permitted in a
dwelling unit in any residential zone of the City. As such, a group home with six or fewer
persons per dwelling unit is permitted as a matter of right and would therefore not have an
FHAA claim.
Group homes (Group Residential uses) for seven or more persons are not exempt from
the single housekeeping unit requirement. Under the Matrix, such uses are prohibited from all
but the R -A zone. Would such a prohibition in the City's code violate the FHAA? We think not.
There are typically two types of FHAA discrimination claims raised: (1) intentional
discrimination; and (2) disparate impact discrimination. The first would not likely be successful.
It would be very difficult to establish a prima facie case to support an intentional discrimination
claim. To do so, the plaintiff would have to prove that he or she were entitled to a permit to
operate the sober living environment in one of the City's residential zones and that the permit
was denied or withheld from them even though similarly situated parties were given a permit to
operate their group living environments in the same zone. (See, Gamble v. Escondido, supra,
104 F.3d at 305; Sanghiv v. City of Claremont (9`h Cir. 2002) 328 F.3d 532, 536.) But, with the
exception of Group Homes for six or fewer, the Newport Beach Municipal Code excludes from
its residential zones all groups not living as a "single housekeeping unit." The plaintiff would
not be able to show that similarly situated groups (i.e., other non - single housekeeping units) were
given permission to operate non - handicapped group housing in a residential zone. Moreover, if
the code discriminates in the area of group living, it does so to favor handicapped groups. The
only group of more than six persons not living together as a "single housekeeping unit"
permitted to live together in a residential zone are groups providing 24 -hour non - medical care,
the so- called "Residential Care, General" category defined in NBMC § 20.05.040. But because
the "Residential Care, General" category allows handicapped housing for seven or more, the
discrimination would be based on the existence or non - existence of on -site service providers, not
on whether the living group is or is not handicapped.
It is less clear whether a Group Residential use will able to prevail on an FHAA
"disparate impact" discrimination theory. "To prevail on a disparate impact case a plaintiff must
establish `at least that the defendant's action has a discriminatory effect. "' (Gamble V. City of
Escondido, supra, 104 F.3d at 306.) "The relevant comparison group to determine a discriminatory
effect on the [handicapped] is other groups of similar size living together." (Id. at 306 -07.) For
Group Residential uses involving six or fewer persons, we think no discriminatory impact claim
can successfully be made. This is because the only permitted non single housekeeping groups of
six or fewer permitted in the City's residential zone are handicapped living groups. Therefore, there
is no discriminatory effect.
The analysis is less clear for Group Residential uses involving seven or more persons.
Under NBMC § 20.10.20, Residential Care, General uses (24 hour non - medical care residential
facility for seven or more) are permitted in all residential zones with a conditional use permit
( "CUP "). Conversely, the code only permits Group Residential uses to occur in residential zones
if they have 6 or fewer persons. As previously noted, the distinction between Group Residential
261/0667q -002:
,17225 01 A';0604 -10-
uses and Residential Care, General uses are that the Group Residential uses do not provide any
onsite care. In our experience, "sober living environments" or "recovery homes" typically do not
provide any onsite care. Rather, they are a tenant -run operation where the tenants themselves
simply provide encouragement to each other to foster their own recovery by way of a 12 -step
program. We are concerned that a sober living environment or recovery home type use may be
able to claim that although the code does not discriminate against handicapped people generally,
the disparate impact between Group Residential (i.e., sober living environment or recovery
home) for seven or more persons and Residential Care, General discriminates against a category
of handicapped persons: the recovering alcoholic or drug dependent person. For this reason, we
recommend that this portion of the code be changed to treat Group Residential and Residential
Care, General alike.
(b) The Regulation of Residential Care, Limited Uses (24 -Hour
Onsite Service Provided, Six or Fewer Residents).
Under NBMC § 20.10.020, Residential Care, Limited uses are permitted in all residential
zones. As such no discrimination claim can be made.
(c) The Regulation of Residential Care, General Uses (24 -Hour
Onsite Service Provided, Seven or More Residents).
Provided the City amends the code in the manner proscribed below, we believe there are
only minimal chances for a successful FHAA challenge by a Residential Care, General
applicant.
Residential Care, General is defined as "24 -hour non - medical care for seven or more
persons, including wards of the juvenile court, in need of personal services, supervision,
protection, or assistance essential to sustaining the activities of daily living. This classification
includes only those services and facilities licensed by the State of California." (NBMC
§ 28.050.040(R).) Residential Care, General uses are permitted in each of the City's residential
zones, but only if one first obtains a CUP. Because the Residential Care, General definition so
closely tracks the definition of "handicapped, "s it would appear that this provision is aimed
specifically at housing facilities for the handicapped.
In Association for Advancement of the Mentally Handicapped v. City of Elizabeth (D. NJ
1994), the court found that a CUP requirement for a residence housing more than six disabled
persons violated the FHAA. "An ordinance that uses discriminatory classifications is unlawful
in all but rare circumstances." (Id., citing Horizon House v. Township of Upper South Hampton
(E.D. PA 1992) 804 F.Supp. 683, 693.) The court found the CUP requirement discriminatory on
its face because it "imposed conditions on the establishment of community residences for the
developmentally disabled housing more than six persons that are not imposed on residences
housing more than six persons who are not developmentally disabled." (Id. at 621.) As a result,
the court concluded that the ordinance is "facially discriminatory and will only be upheld if it
serves a legitimate governmental purpose." (Id.) The city claimed that the ordinance did serve a
8 The FHAA defines "handicapped" as a person with "a physical or mental impairment which
substantially limits one or more of such person's major life activities." (42 USC § 3602 (h).)
261/Oh6751 -0013
471154 01 a0M6,04
legitimate governmental purpose by preserving the residential character of neighborhoods.
While the court recognized that the City "has a legitimate interest in protecting the residential
character of the surrounding neighborhood" (id. at 623), the court found the record to be "devoid
of any evidence upon which a fact finder could reasonably conclude that community residences
housing more than six developmentally disabled persons would detract from a neighborhood's
residential character." (Id.) As such, the court found the city failed to demonstrate the ordinance
served a legitimate governmental purpose.
On its face, the City's conditional use permit requirement for Residential Care, General
uses appears to suffer the same problem as the City of Elizabeth ordinance. The CUP require-
ment appears directed toward "handicapped" persons. Because the Zoning Ordinance imposes
conditions on the establishment of handicapped housing for more than seven persons which are
not imposed on residences housing more than seven persons who are not handicapped, the
ordinance discriminates on its face against handicapped persons. This shifts the burden to the
City, forcing it to demonstrate the CUP requirement serves a legitimate governmental interest.
We presume the legitimate governmental interest the CUP requirement serves would be the
preservation of the residential character of the City's residential neighborhoods. The CUP
requirement serves this interest in the following way: City Code generally prohibits from its
residential zones groups of seven or more persons not living together as a single housekeeping
unit. The Residential Care, General uses would not only constitute an exception to the rule, but
it would constitute a high intensity exception to the rule given that it would allow seven or more
transient persons per dwelling unit. Prestnnably, the large numbers of constant changing of
residents would be the antithesis of the stability typically prevalent in residential zones.
We believe that, as currently drafted, the City Code would not support this argument.
The City's restrictions on Residential Care, General uses apply across all residential categories.
While the rationale would likely prevail for purposes of the R -I zone (and perhaps even for the
R -1.5 and R -2 zones), it would almost certainly fail when applied to the "multi- family"
residential zone. This is because there is not only a significant turnover of residential units in the
typical multi - family residential zone, but a significant and relatively constant turnover of the
residents which comprise the living groups within a dwelling unit in that zone. For instance, we
would imagine that significant numbers of young adults live in the multi - family residential zone.
Young adults frequently change roommates and, therefore, can hardly be considered to embody
the stability typically associated with persons living together as a "single housekeeping unit."
A court would therefore be unlikely to accept the argument that a CUP requirement for
Residential Care, General uses in the multi- family residential zone furthers the City's interest in
preserving the zone's "residential character" as a long term, stable residential neighborhood.
Therefore, to make the City's regulations more defensible, we recommend amending the code as
provided in Appendix "A ".
CONCLUSION & RECOMMENDATION:
Based on the foregoing, we recommend the City amend the definitions in the Zoning
Ordinance in the manner provided in Appendix "A" attached. In general terms, these
amendments will: (1) redefine the Multi- Family Residential Zone to the Multi -Unit Residential
Zone; (2) clarify the application of the "single housekeeping unit" requirement; (3) eliminate the
distinction between service providing and non - service providing handicapped group housing; (4)
261 /066751 -602 v -12-
472254 01 .0106 04
clarify that handicapped group housing permitted for groups of six or fewer are permitted as a
matter of right in all residential zones, that handicapped group housing for groups of seven or
more is at least permitted in the Multi -Unit Residential Zone and prohibited in the others and that
non - handicapped group housing is prohibited in all but the Multi -Unit zone, in which it is at best
conditionally permitted. As many of these changes are merely clarifications of the existing code,
we recommend the ordinance indicate that the changes are declarative of existing law where
appropriate. We believe the attached changes will increase the likelihood of prevailing in an
FHAA challenge to the City's residential regulatory design. The above notwithstanding, we
caution that any case involving a question of whether and to what extent a group of people are
living together as a "single housekeeping unit" will be factually intensive, and the facts may be
difficult to obtain. In addition, this area of the law is constantly changing due to the significant
quantity of judicial decision issued on the topic. The City should make sure it remains abreast of
those decisions to ensure its laws remain consistent with those decisions.
We hope you have found this memorandum helpful. Should you have any questions,
please do not hesitate to contact us.
_'611006751 -0023
472254,01 a02106:04 -13-
APPENDIX "A"
PROPOSED CHANGES
Amend Section 20.03.030 in the following manner:
(a) Existing: "Dwelling, Multifamily" means a building containing three or more
dwelling units.
Proposed Amendment: "Dwelling, Multi -unit' means a building containing
three or more dwelling units.
(b) Existing: "Dwelling, Single - family" means a building containing one dwelling
unit.
Proposed Amendment: "Dwelling, Single- family" means a building containing
one dwelling unit for occupancy by one family.
(c) Existing: "Dwelling, Two - Family" means a building containing two dwelling
units.
Proposed Amendment: "Dwelling, Two - Family" means a building containing
two dwelling units, each of which is for occupancy by a single family.
(d) Existing: "Family" means two or more persons living as a single housekeeping
unit within a dwelling unit. The term "family" shall not apply to residential care
facilities for 6 or fewer developmentally disabled, mentally disordered or
otherwise handicapped persons.
Proposed Amendment: "Family" means one or more persons living as a single
housekeeping unit within a dwelling such that they bear the generic character of a
family unit as a relatively preeminent household . The term "family" shall
include Residential Care, Limited facilities for 6 or fewer developmentally
disabled, mentally disordered or otherwise handicapped persons, but no other
living group not living as a single housekeeping unit. It is the intent of the City
that considering Residential Care Limited facilities to fall within the definition of
"family" to the exclusion of all other living group which is do not live together as
a single housekeeping constitutes a "reasonable accommodation" as that term is
used in the Fair Housing Act Amendments (42 USC § 3604 et. seq.)
Amend Section 20.05.030 in the following manner:
(a) Existing: "Day -Care, Limited" means non - medical care and supervision of 12 or
fewer persons on a less than 24 hour basis. This classification includes nursery
schools, preschools, and day care centers for children (large and small family day
care homes) and adults.
2611066751.0021
472254 01 02 ,'06104 -14-
Proposed Amendment: "Day -Care, Limited" means non - residential, non-
medical care and supervision of 12 or fewer persons on a less than 24 hour basis.
This classification includes, but is not limited to, nursery schools, preschools, and
day care centers for children (large and small family day care homes) and adults.
(b) Existing: "Multi- family Residential" means three or more dwelling units on a
site. This classification includes mobilehome and factory built housing.
Proposed Amendment: "Multi -unit Residential" means three or more dwelling
units on a site. This classification includes mobilehome and factory built housing.
(c) Existing: "Group Residential" means shared living quarters without separate
kitchen or bathroom facilities for each room or unit. This classification includes
boarding houses, dormitories, fraternities, sororities, and private residential clubs,
but excludes residential hotels (see single room occupancy (SRO) residential
hotels, sec. 20.05.050(EE)(4)).
Proposed Amendment: "Group Residential" means shared living quarters
without separate kitchen or bathroom facilities for each room or unit. This
classification includes boarding houses, dormitories, fraternities, sororities, and
private residential clubs, but excludes Residential Care, Limited, Residential
Care, General, and residential hotels (see single room occupancy (SRO)
residential hotels, sec. 20.05.050(EE)(4)).
(d) Existing:
Proposed Amendment: "Residential Care, Limited " means shared living
quarters without separate kitchen or bathroom facilities for each room or unit for
6 or fewer persons with physical or mental impairments which substantially limit
one or more of such persons' major life activities. This classification includes but
is not limited to group homes, sober living environments, recovery facilities, and
establishments providing non - medical care for persons in need of personal
services, supervision, protection, or assistance essential for sustaining the
activities of daily living.
(e) Existing: "Single - family Residential" means buildings containing one dwelling
unit located on a single lot. This classification includes mobilehome and factory
built housing.
Proposed Amendment: "Single- family Residential " means buildings containing
one dwelling unit located on a single lot for occupancy by one family. This
classification includes mobilehome and factory built housing.
(f) Existing: "Two- Family Residential" means buildings containing two dwelling
units located on a single lot. This classification includes mobilehome and factory
built housing.
261;066951 -0023
472254.01 a02J06: 04 -15
Proposed Amendment: "Two- Family Residential' means buildings containing
two dwelling units located on a single lot, each unit limited to occupancy by a
single family. This classification includes mobilehome and factory built housing.
(g) Add: "Residential Care, General " means shared living quarters without separate
kitchen or bathroom facilities for each room or trait for 7 or more persons with
physical or mental impairments which substantially limit one or more of such
persons' major life activities. This classification includes but is not limited to
group homes, sober living environments, recovery facilities, and establishments
providing non - medical care for persons in need of personal services, supervision,
protection, or assistance essential for sustaining the activities of daily living.
3. Amendments to Section 20.05.040
(a) Delete definition of "Residential Care, General'.
4. Amend Section 20.10.020 in the following manner:
Existing:
R -A R -1 R -1.5 R -2 MFR Additional
RESIDENTIAL (A),(B),(C)
Dav -Care. Limited P P P P P
Residential P
Residential Care, Limited P P P P P
Single - family Residential P P P P P
Multifamily Residential P (D)
Two - Familv Residential
2 611066751 -0023
472254.01 z(O.W i4 -16-
P P P
Proposed Amendment:
R -A R -1 R -1.5 R -2 MFR Additional
RESIDENTIAL (A),(B),(C)
Day -Care, Limited P P P P P
Group Residential
or
CUP
Residential Care, Limited P P P P P
Residential Care, General CUP
Single - family Residential P P P P P (D),(E),(M)
Multi -Unit Residential P (D)
Residential P P P
4. Amend Section 20.10.010(H) in the following manner:
(a) Existine: H. Provide public services and facilities to accommodate planned
population densities.
Specific residential districts are as follows:
Residential - Agricultural (R -A) District. Provides areas for single - family
residential and light fanning land uses.
Single- Family Residential (R -1) District. Provides areas for single- family
residential land uses.
Restricted Two Family Residential (R -1.5) District. Provides areas for single -
family and two family residential land uses with the total gross floor area of all
buildings limited to a maximum floor area ratio of 1.5 times the buildable area.
Two Family Residential (R -2) District. Provide areas for single - family and two -
family residential land uses.
Multifamily Residential (MFR) District. Provides areas for single - family, two -
family, and multiple family residential land uses.
26 V066711 -0023
472254 01 a0'- ;06;04 -17-
Proposed Amendment: H. Provide public services and facilities to
accommodate planned population and densities. The specific residential districts
and their purposes are as follows:
Residential - Agricultural (R -A) District. Provides areas for single - family
residential and light farming uses.
Single - Family Residential (R -1) District. This is the City's most restrictive
residential zoning district, established to provide for a stable, social neighborhood
for single - family residential land uses by limited occupancy to single - family
groups.
Restricted Two - Family Residential (R -1.5) District. Like the single - family
district, this district is intended to provide for a stable residential neighborhood by
providing areas for single - family and two - family residential land uses with a total
gross floor area of all buildings limited to a maximum floor area ratio of 1.5 times
the buildable area. Occupancy in this area is limited to dwelling units occupied
by one family.
Two - Family Residential (R -2) District. Like the R -I and R -1.5, this district is
intended to provide for a relatively stable residential neighborhood. This district
provides for a single family and two - family residential land uses within dwelling
units limited to occupancy by a single family.
Multi -unit Residential (MUR) District. This District is high residential intensity
district which provides housing for single - family, two - family and non - family,
multi -unit residential uses.
261:066751 -00.1
472254 01 .02106 /04
mm—
JAMES C. PERSON, JR.
Attomey at Law Telephone 19491673 -9201
507 29th Street - Suite A Facsimile J949)673-0774
Newport Beach. Califomia 92663 6 Mail meiep i paebell.nei
February 5, 2004. ,D19gCEIVED AFTER AGENDA
PR1tl3ED:" S.S 3 9- - l - 0'l
The Honorable Tod Ridgeway, Mayor
and Members of the City Council
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Re: Study Session Item "Group Living Facilities" - Sober
Living By The Sea
Dear Mayor Ridgeway and members of the City Council:
This office represents Mr. and Mrs. Carl Mosen and their
wholly owned corporation, Sober Living by the Sea, Inc., which
operates a number of group living and other facilities within
and outside of Newport Beach. As I will be out of town on
business most of the day on Tuesday, February 10, 2004, and
may not make it back before the Study Session, I wanted to
take a moment to explain the operation of my clients as well
as their desire to be good citizens of Newport Beach.
I think a brief history of their operation would be useful. In
1985, Mr. Mosen, then a Newport Beach resident and local
realtor, founded Sober Living by the Sea, when he rented a
house on 34 "' Street in Newport Beach as a place where persons
who had experienced drug and alcohol problems could come and
live after getting "sober" during a transitional time of their
lives. It was envisioned by Mr. Mosen, at that time, not as a
possible business venture but more of a humanitarian thing and
as a way to help these individuals get their feet back on the
ground.
The need for such facilities soon became more apparent with
the successful operation of the first house and by 1990, they
had established five such houses operating on the Balboa
Peninsula. Since that time the operation has grown signifi-
cantly and now is, in fact, the largest in the State of Cali-
fornia. I have attached a full list of operations by Sober
Living to this letter to fully explain the types of facilities
and number of persons benefitted.
The Honorable Tod Ridgeway, Mayor
and Members of the City Council
February 5, 2004
Page 2
In addition to housing, Sober Living by the Sea offers a large
number of other services, including counseling and therapy.
The residential units, however, remain primarily residential
in nature, while all of the services are offered at another
location or locations.
Sober Living by the Sea is supervised and licensed by the
State of California by the Department of Consumer Affairs as
a Drug and Alcohol Treatment Facility and under this license
is permitted to have the residences, which are inspected by
the State of California.
A few years ago, as a result of our many activities concerning
personal behavior, we decided that there was a need for a
similar program for women who are suffering from the debili-
tating effects of eating disorders, primarily anorexia and
bulimia.
In 2001, we entered into a five year lease of a residence in
Cannery Village for the purpose of establishing "The Victorian
House" and a program that assists women with eating disorders.
It is advertised as a house that can be occupied by as many as
eight women, although there are currently five (5) residents.
It is estimated that probably the average over the past two
years of occupancy has been around 6 persons occupying the
premises.
Mr. Mosen has indicated to me that it is his belief that he
and his staff have always had an excellent relationship with
the City of Newport Beach, including the Police and Fire
Department. He indicates that he has an ongoing desire to be
a good neighbor a corporate citizen in this City. It is his
continuing desire to maintain such a relationship with the
City of Newport Beach.
In addition to providing you information for your consider-
ation, it is in the spirit of cooperation that this letter is
being transmitted to you.
The Honorable Tod Ridgeway, Mayor
and Members of the City Council
February 5, 2004
Page 3
It is my understanding that Mr. Mosen and an associate or two
will be in attendance on Tuesday in my absence, in case there
are any questions concerning this operation.
Thank you for your consideration of this matter.
Ve I truly you
ES C. PERSO /�JR.
JCP /cl
cc: Mr. Carl Mosen w /attachment
Robert H. Burnham, Esq. w /attachment
RESIDENTIAL FOR ALCOHOL AND DRUG RELATED DISORDERS IN NEWPORT BEACH
Currently nine (9) group homes on the peninsula...
Seven (7) of these are year round
Two (2) are winter rentals only.
Three (3) of these have six (6) residents, the rest have five (5) or fewer.
One residence in Newport Crest for alcohol and drug related disorders.
Approximately eighty (80) persons live in the Newport Beach facilities
OTHER FACILITIES WITHIN AND OUTSIDE NEWPORT BEACH
A residential home in Costa Mesa for alcohol and drug related disorders.
A men's thirty (30) day ranch facility in Riverside. California for alcohol and drug
related disorders.
Owned facility for group education, activities and meetings in Cannery Village at 281
Villa Way, Newport Beach, California (non - residential).
The "Victorian House;' a residence for up to eight (8) women who have eating disorders
(anorexia and bulimia) in Cannery Village (residential).
Leased office space for corporate activities in Cannery Village.
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January 10. 2004
To Those Concerned
I am a retired Christian minister. My wife and I live in Sunshine Smmnit a community where Narconon
has recently established a new facility. Sunshine Surnmit is a smaII, somewhat isolated community in rural
San Diego County. The community is quite sensitive and concerned about new facilities and activities that
come to our area because our environment is quiet, peaceful and rustic and most wish it to remain so.
Hence when Narconon proposed a facility in the area, most, my wife and I included, were concerned about
its impact on the community.
The home we purchased some twelve years ago and lure in here is located virtually nest door to the
Narconon facility that is now open in Sunshine Summit. In the months prior to the opening of the Narconon
facility, in its planning and fact finding period my wife and I together with many others in the community
inquired quite carefully into the aspects of having such a facility in our area. My wife and I personalty
became acquainted with the personnel and officials working on the project and visited the work and
preparations being made. We were warmly welcomed and were briefed on the improvements to be made to
the property being surveyed for purchase and the efforts being made to conform to all codes and
community restrictions.
The property involved had "run down' in recent years since its previous occupancy and was in need of
repairs and upgrades. We, along with others in the community. were gratified in that improvements and
upgrades were proposed that would, and have, greatly improved its appearance and place in the
community. Also, my wife and I became acquainted with the programs and rehabilitation procedures to be
employed by Narconom the number of participants who would attend the facility together with the staff that
would conduct the activities. Once we understood and became familiar with the procedures and oversight
that would be implemented we felt very satisfied that the activities and functions of the Narconon facility
would be beneficial not only for the community but provide a service so desperately needed in our world
today.
Being long term residence in Sunshine Summit we are acquainted with many others who live here and in
the nearby Mobil Home community that is also in the area Except for a very few that we have heard of the
general consensus among all our friends and acquaintances who have taken the time to understand the
scope of the Narconon program and its facilities in our area is, and continues to be, very warm acceptance.
Living virtually next door the Narcomom we have never experienced any rowdy, disruptive, noisy or
objectionable conduct on the part of staff or participants.
The staff and senior participants in the program have, and continue, to participate in community affairs and
have been most cooperative and helpful in many community projects. Many local residents and businesses
have been extended help in soling problems and needs in the community. My wife and I have attended
activities and meetings at Narconon in the many months they have now been in operation. We have listened
to the testimonies of attendees reporting the progress they have made in the program and seen the progress
they have made toward complete rehabilitation. As far as we are concerned the fruits of the operation of the
Narconon facility in our area have been demonstrated even beyond or studied expectations.
In our opinion it is no longer possible in our world today to ignore or discount the need for such facilities as
Narconon, which has proven to be perhaps the most effective program available today. We heartily endorse
their presence in our community and sincerely believe all truly concerned citizens should feel the same.
Al and Dee Portune
35075 Hwy. 79
Warner Springs,
Sunshine Summit- CA
_ Page 1 of 1
G�
Main Identity
From: 'win fuller' <wfullerl @pacbell.net>
To: < tridgeway @city.newportbeach.ca.us >; <paradigm @aol.com >; <don2webb @earthlink.net >;
<garold_adams @hotmail.com >; <dandee @earthlink.net>; <nbcouncil @ranichols.info >;
<jhff @aol.com>
Sent: Tuesday, February 10, 2004 4:18 PM
Subject: Alchohol & Drug Re -hab Businesses in Newport Beach Residential Communities. AKA Special
Hospitals or Group Hiomes
It is regrettable that the City of Newport Beach has not developed and
required a comprehensive Use Permit process in regards to the operating of
Alchohol & Drug Re -Hab. businesses within the City. Estimates approach
twenty of these businesses presently in Newport Beach residential
communities. Our beach community is a real haven for this type of business,
because our city governance is so carte blanche. Thank you City Council in
advance for reviewing this matter in study session this afternoon. I have
reviewed the Staff Report from Bob Burnham including JeffGoldfarb's
analysis relative to the FHAA and suggested amendments to our zoning
laws.The suggested amendments appear to do nothing more than accomodate the
welcoming of these ReHab businesses into our residential neighborhoods.
Because the Drug and Alcohol Centers are disruptive to the otherwise high
quality of life of our affected residents( Crime, Noise, Profanity, Litter,
Traffic, Parking, Chemical Inhalation and more), I recommend that Newport
Beach require the payment of a large deposit fee( $15000) to process the Use
Permit Application which must include a detailed review of parking,traffiic,
noise, crime influence ( 90% purportedly have served jail time) , proximity
to school (s) , substance abuse,delivery truck impact etc., in effect an
Environmental Impact Report. A Public Hearing should also be conducted.
There are examples of other nearby cities in Orange County enforcing the
above stated process and regulations. Thank you for your consideration
towards a more peaceful neighborhood environment.
Respectfully Submitted, Win Fuller 949- 6731568
2/10/2004
MEMORANDUM
Date:February 9,2004
To: City of Newport Beach
Attention:T. Ridgeway.G.Adams,H. Bludau,P.Temple
i
DELIVERED BY HAND R
CERTIFIED MAIL on
From: City of Newport Beach — Residents and Business Owners on Balboa Penninsula
Subject: DRUG /ALCHOHOL REHAB FACILITIES
This memorandum serves to formally advise you of our objection and distress in
connection with the proliferation of drug/alchohol rehab facilities in our residential
neighborhood /s on the Balboa Penninsula.
Despite repeated communication requests and stated objections of its citizenry,the City of
Newport Beach to date has failed to exercise its established ordinances,as well as civic
and fiduciary duty to its citizens and taxpayers by allowing these facilities to
multiply,without the proper review and permitting. We are currently aware of facilities
being operated at the following locations in residential areas of the Penninsula:
1810 West Oceanfront
1216 West Balboa Blvd.
1601 West Balboa Blvd.
4500 Seashore Dr.
4504 Seashore Dr.
4800 Seashore Dr. J r
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The following additional facilities are also known:
1811 West BalboaBlvd.(already occupied,operating without proper permits or clearances)
1234 West Balboa Blvd. (application pending)
1510 West Balboa Blvd. (application pending)
1219 West Balboa(rent paid,occupancy in process,no operating permits or clearances)
THIS REPRESENTS FAR MORE THAN OUR FAIR SHARE ,AND CAUSES
MATERIAL ADVERSE IMPACT TO OUR RESIDENTS,SCHOOLS AND NEARBY
BUSINESS ESTABLISHMENT S.The City has been to date deliberately remiss in
fulfilling its responsibilities as defined per codes 20.10.020 and 20. 10.01 0,and as
associated with civic and fiduciary responsibility to its citizens. Adverse impact is
already known and experienced by us,including noise,debri,increased crime,emotional
distress, increased parking problems,and emerging concern on the part of property
owners for degradation of the community and real estate values.PLEASE CONSIDER
THIS OUR FINAL REQUEST FOR ENFORCEMENT OF EXISTING CODES,AND
ACTION TO CURTAIL THIS ACTIVITY IN RESIDENTIAL AREAS OF OUR
COMMUNITY. We appreciate your attention,and expect that you will keep us informed.
pc 1 —
WE, THE UNDERSIGNED, ARE RESIDENTS,BUSfNESS OWNERS AND OTHERS
IN SUPPORT OF CURTAILMENT OF DRUG/ALCHOHOL REHAB FACILITIES ON
THE BALBOA PENNTNSULA.
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WE, THE UNDERSIGNED, ARE RESIDENTS,BUSINESS OWNERS AND OTHERS
IN SUPPORT OF CURTAILMENT OF DRUGfALCHOHOL REHAB FACILITIES ON
THE BALBOA PENNINSULA-
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SUMMARY: COMMENTS AND POSITION OF RESIDENTS OF BALBOA
PENNINSULA RE. DRUG DETOX /REHAB CENTERS -
Presented by Denys Oberman on behalf of Balboa Residents,Business Owners, Schools
At Study Session and City Council: February 10,2004
The City,per its own charter,zoning ordinance and planning policy, has
established requirements for impact evaluation and conditional use permits which
are applicable to Residential Care facilities including Drug/Alchohol Rehab
facilities. We have received opinions that the zoning ordinances as currently
written are legal and enforceable.
The City has to date demonstrated unwillingness to exercise and apply /enforce its
ordinances. Individual officials have admitted that the City has been remiss in this
regard.
As a result of the ty's action/inaction to date, there is now a proliferation of
Drug/Alchohol ehab and Detox Centers on the Balboa Pennlnsula,ALL in
residential areas: -hese facilities do not have the required City use permits,even
though some of them have certificates of occupancy. WE HAVE MORE THAN
OUR FAIR SHARE in this residential area.WE HAVE AND CONTINUE TO BE
ADVERSELY IMPACTED BY THE PROLIFERATION OF THESE NON-
CONFORMING USES.
In addition to the current proliferation, the current and prospective new operators
continue to extend current operations to additional physical locations and
facilities,and plan to open new ones. The City is developing a reputation for being
one which does not exercise its rights and one in which the facilities can operate
without being subject to accountability or controls of any kind.
4. The residents of the City and Balboa Penninsula have been adversely and
materially impacted by the City's failure to fulfill its responsibilities in this
regard.We are at a loss to understand WHY the City continues to ignore its
responsibilities. We have undertaken extensive research ,which universally
concludes that the City of Newport Beach has both the mechanisms and the
responsibility to control its land uses(as does any other local government).We
sincerely hope and expect that individual City managers and officials are free
from Conflict with respect to this matter.
5. We understand that the City is now considering the possibility of making zoning
modifications which would INCREASE ADVERSE IMPACT,and facilitate
approval of permitting to these and other entities The City's assessment of
demographics in the subject areas is factually incorrect,and we resent the
proposition that West and Central Newport Beach areas are "dominated by
transients ".
We officially reject the City of Newport Beach's refusal to manage and control these
uses,and demand that it immediately:
F 1l I
LSubject existing facilities to the proper review,public notice and permit requirements
per local zoning codes,and consistent with sound public policy. Implement enforcement
consistent with sound policy and stated law.
2.Control /curtail permitting of such uses as would create adverse environmental
impact,and which in proliferation would promote degradation of the community and
property values.
3.Retain current zoning ordinaries which preserve and protect the community and its
citizens, schools from excessive density,noise ,threat to safety and security and other
adverse environmental impact.
4.Properly provide Notice and Opportunity for Hearing to potentially impacted parties so
that there may be reasonable opportunity to be informed of,and consider laws,policy and
individual actions which impact the character, safety, and integrity of the community.
As confirmation of position in favor of CURTAILING the proliferation of Drug/Rehab
facilities we have to date obtained the signatures of residents in the impacted areas.
We will continue to obtain additional signatures,and take the action necessary to preserve
and protect our rights,including all remedies.
THANK YOU FOR YOUR CONSIDERATION AND RESPONSE.
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"RECEIVED AFTER AGENDA
Fh"NTE3:" S -S �a - I G- 0 y
Catherine Martin Wolcott
Attorney at Law
245 Cajon Street
Laguna Beach, CA 92651
(949)497 -1182
catherinewolcottCihotm ai l.com
February 9, 2004
The Honorable Todd Ridgeway
Mayor, City of Newport Beach
tidgeway acity.newport- beach.ca.us
Dear Mr. Ridgeway,
I am writing as one of the individuals with an ownership interest in 1824 West Ocean
Front (hereinafter 1824). I am also writing as attorney for the other family members with
an ownership interest in that property, including my parents. Carol and Bill Martin, who
have resided at 1824 for over 40 years. We wish to express our objections to the density
of population achieved at 1810 West Ocean Front (hereinafter 1810), as well as to the
proposed changes to the zoning ordinances removing all barriers to such density which
have been recommended to the City Attorney's office by Jeff Goldfarb of Rutan &
Tucker.
No member of our family has any prejudice against recovering addicts or alcoholics. My
sister and I have worked for chemical dependency treatment facilities in the past. The
family recognizes the importance of treatment for the chemically dependent, and the
necessity of community support for persons recovering from chemical dependencies.
Furthermore, we have no objections to having residential care facilities for the
handicapped in the neighborhood.
When 1810 began to be used as a sober living facility ten years ago, neighborhood
concerns centered solely on adequate intemal supervision of the program, not on its
character as a residential care facility. As the number of residents at 1810 grew and
began to have a major impact on the neighborhood, complaints increased. Supervision of
the program was inadequate to mitigate this impact, requests that the City and the
property owner deal with nuisance issues did not reduce the impact, and the neighbor's
frustration grew.
Narconon representatives informed me on February 5, 2004, that they are licensed by the
State of California to house 27 patients at 1810. That would be nine residents per three -
bedroom apartment, plus staff and visiting treatment personnel. The Narconon
representatives conceded that 27 residents may be too high a number for the property.
We concur. Twenty -seven residents in one three -story apartment building set back three
feet from its neighbor's property line on a thirty -foot lot is far too many. In a
conventional family or roommate living situation, occupancy of a three - bedroom
apartment rarely exceeds six individuals. Few reputable landlords or realtors in this area
would knowingly rent a three - bedroom apartment to nine adults.
With respect to 1810, the City of Newport Beach has not enforced its own code requiring
that a residential care facility with over six occupants per unit must obtain a Conditional
Use Permit. Narconon has neither applied for nor obtained a CUP, but the City has taken
no action to date, with the exception of obtaining a memo from Mr. Goldfarb that
suggests that the CUP requirement is discriminatory.
It is the recommendations from Mr. Goldfarb that cause us the greatest concern. The
ordinance amendments he proposes undermine the City's legitimate government interest
in having some control over density in the multi - family zones of Newport Beach. They
place an undue burden on the existing residents of these zones, as well as on handicapped
residential care facilities, by recommending that residential care facilities with over six
residents per unit can be housed only in the multi- family zones.
We are particularly dismayed by the tone adopted by Mr. Goldfarb in his memo to the
City Attorney's office. His memorandum should have been an analysis of how the city
can legally accommodate the needs of all its residents, including the handicapped, while
remaining in compliance with FHAA. Instead, it reads like a brief arguing one side of the
case — Narconon's side. Distinguishing facts are omitted from the case law cited, and
questionable conclusions are presented as solutions.
1. The current Citv ordinance does not intentionally
discriminate against handicapped residents.
Mr. Goldfarb correctly states that the FHAA prohibits disparate treatment and intentional
discrimination against group homes for handicapped persons. It also prohibits any
actions that unintentionally have a disparate impact on a handicapped person's ability to
obtain equal housing opportunities.
Gamble v. City of Escondido (9`h Cir. 1996) 104 F.3d 300 is a case cited at length by Mr.
Goldfarb. It is a highly relevant case, in which the Ninth Circuit held that a city's denial
of a conditional use permit for a proposed residential care facility was not discriminatory.
Careful analysis of that case leads me to believe that Mr. Goldfarb applied Gamble
incorrectly in formulating his recommendations.
In his memo to staff, Mr. Goldfarb erroneously states that the discriminatory treatment
claim in Gamble stemmed from the city's denial of a building permit for a group home
(Goldfarb memo, page 4, paragraph 2). He refers to "the building permit" four times in
summarizing this case. The permit denied in Gamble was a conditional use permit, not a
building permit. In Westlaw's published version of the case, a denied building permit is
mentioned once in a summary paragraph. (104 F.3d @ 303.) I believe this to have been
a publishing error, because every other time the denied permit is mentioned (and it is
mentioned by name at least twenty -three times over the course of the opinion), it is
referred to as a conditional use permit. (Id. at 300, 301, 302, 303, 304, 305, 306 and 308
While this may appear to be a minor error on Mr. Goldfarb's part, it is damaging to the
validity of his recommendations, because later in his memorandum he appears to urge the
City to remove the conditional use permit requirement for residential care facilities that
house seven or more residents. (Goldfarb memo, pages I1 -13.) (The wording of his
memorandum is somewhat unclear in this regard; it can be interpreted as urging the City
to drop the CUP requirement in the multi - family zone, see pages 6 -7 of this letter, below.
Therefore, I have included information in this letter pertinent to retaining the CUP
requirement.)
In making his recommendations, Mr. Goldfarb relies on a New Jersey District court
opinion which held that a CUP requirement for a residence housing more than six
disabled persons violated the FHAA. Association for Advancement of the Mentally
Handicapped v. City of Elizabeth (D. NJ 1994) In Association for Advancement of the
Mentally Handicapped, the court stated that a CUP requirement was facially
discriminatory if it imposed conditions on handicapped housing for more than six people
that it did not also impose on non - handicapped living groups of six or more. The court
also stated that, despite its facially discriminatory nature, the CUP requirement would be
upheld if it satisfied a sufficiently legitimate government purpose. The court affirmed
that protecting the residential character of a surrounding neighborhood was a legitimate
government interest.
The Association for Advancement of the Mentally Handicapped court found no factual
indication that the disabled housing would detract from the character of that particular
New Jersey neighborhood, and therefore the city did not meet its burden of showing that
the legitimate government purpose exceeded the discriminatory affect of the CUP
requirement.
By contrast, the Ninth Circuit court in Gamble did not appear to regard the existence of a
conditional use permit requirement as a barrier to handicapped housing equality. It never
even mentioned that possibility; rather, it included the act of applying for a conditional
use permit as an essential part of its test for establishing whether the plaintiff had any
claim at all. (104 F.3d at 305.) If there is a conflict between the decisions in Gamble and
Association for Advancement of the Mentally Handicapped, Gamble should control since
it is a case from our own circuit, was determined by a higher court, and is a more recent
ruling.
Applying the reasoning of Gamble, the City's current ordinances do not run afoul of the
FHAA. In Gamble, the court analyzed the plaintiff s FHAA discrimination claim with a
three -stage test. The court said that "[tjo bring a disparate treatment claim, the plaintiff
must first establish a prima facie case. Adapted to this situation, the prima facie case
elements are: (1) plaintiff is a member of a protected class; (2) plaintiff applied for a
conditional use permit and was qualified to receive it; (italics added) (3) the conditional
use permit was denied despite plaintiff being qualified; and (4) defendant approved a
conditional use permit for a similarly situated party during a period relatively near the
time plaintiff was denied its conditional use permit." (104 F.3d at 305.)
Under Gamble, Narconon would fail to make even the prima facie case it needs to
proceed to the next stages of analysis, because it did not apply for the required
conditional use permit. However, for purposes of argument, if Narcanon had applied for
the CUP, and been denied it, and if the City had approved a conditional use permit for a
similarly situated party, the City would then have the burden to "articulate a legitimate,
nondiscriminatory reason for its action." (Id.) The Gamble court stated that the city's
"concern for the character of the neighborhood, is legitimate and nondiscriminatory."
(Id.)
While the character of the neighborhood in the 1800 block or other multi - family areas
may be somewhat different from that in Gamble (the proposed residential care facility
was to be located in a single family zone), the City of Newport Beach's concern with the
character and density of population of the neighborhood in the multifamily residential
zones of Newport Beach is similarly legitimate. Newport Beach Peninsula residences are
already very closely spaced. Most residences, whether they are situated in R -1, R -2 or
Multifamily, are built out to their allowed narrow setbacks. As a result, neighbors reside
in houses that are within six feet of each other, and must be especially considerate of one
another to avoid conflict and annoyance.
Increasing the population living in these homes beyond what they were originally
intended to accommodate creates an unpleasant living situation, with additional traffic
and parking problems. The density the properties were meant to accommodate is
illustrated by the number of people they actually do accommodate at this time. With the
exception of 1810, there are far less than nine residents per unit in every home on the
1800 block.
Once this legitimate, nondiscriminatory city concern is established, the third stage of the
Gamble analysis would require Narconon to show that the legitimate concern asserted by
the City "is a mere pretext." (Id.) In Gamble, the court held that the plaintiff failed to
show that the city's concern was a pretext for discrimination against the handicapped. (Id.
at 306.) Similarly, the City of Newport Beach can show that the concerns addressed by
its current zoning laws are not mere pretext. Density is a real issue.
Mr. Goldfarb mistakenly asserts in his memorandum that, "Notably absent in [the
Gamble] case was the typical outpouring of neighbor opposition to the Group Home, a
fact that has regularly been used to argue the action being challenged is a mere pre -text
(sic) for discrimination against handicapped persons." (Goldfarb memo, page 4, footnote
3.) In fact, the Gamble opinion states otherwise. On the second page of the text of the
opinion, the court states that, "in response to the concerns voiced bh the neighbors," the
City Council agreed to reconsider the matter at a subsequent hearing, at which they
denied the CUP. (Id. at 304.) (italics added) Thus, the Ninth Circuit does not regard the
expression of neighbor concerns as automatic proof of discriminatory intent.
The neighboring residents do not object to the Narconon facilities existing on the 1800
block, as long as the population density at 1810 remains at an appropriate, reasonable
level and the program supervises its residents' behavior. To the best of my family's
knowledge, resident complaints have focused on appropriate supervision of Narconon's
residents, and they accelerated after the density increased at the Narconon facility.
(Presumably, a review of the City record of complaints and the residential care facility's
admission and discharge records would show whether or not our perception is accurate.)
Statements made by neighbors and property owners, including myself, to Narconon
representatives were well- meaning attempts to alert Narconon administration to problems
with program supervision, resident behavior, and neighbor perceptions in hope that
Narconon would increase supervision of the residents at 1810.
There can be no secret discriminatory intent imputed to the City of Newport Beach
against Narconon, either. The City has a record of being very accommodating of the
Narconon facility, especially in declining thus far to enforce its own CUP requirement.
Mr. Goldfarb cites cases from other circuits which did hold that comments from
neighbors of residential care facilities was evidence of discriminatory intent. In Oxford
House, Inc. v. Town of Babylon, 819 F.Supp. 1179 (E.D. NY 1993), neighbor complaints
were highly inflammatory. Neighbors of the sober living facility in Oxford House made
statements in public hearings such as, "I don't want [my son] subjected to irrational,
unpredictable ... people," and "[w]hat [can you] do to help us remove this threat from
our community?" (819 F.Supp. at 1184.) Council member replies included, "If it is
coming under the laws of the State of New York, we're going to have a real hard time
because we fought before, and it's a fight we've unfortunately lost before," and "So I
wish I could say absolutely, we'll keep them out. But we're not an army. I mean if they
move in, we can't go in there and yank them out of their beds either. I'd like to say that .
" (Id.) In the face of this evidence, there is no doubt that intent of the city action in
Oxford House was discriminatory.
Such evidence is not present in Newport Beach. In addition, the court in Oxford House
noted that "[f]ive Town officials testified that the Town has received no complaints from
plaintiff's neighbors within the past year. Furthermore the house is well maintained and
does not in any way burden the Town or alter the residential character of the
neighborhood." (Id.) The City of Newport Beach has received numerous complaints
from 1810's neighbors, and to describe 1810 as "well maintained" would be stretching
the boundaries of truth to an unreasonable degree, particularly in comparison with
surrounding properties.
2. Current City ordinances do not cause a
discriminatory affect under FHAA.
Under Gamble, the plaintiff failed to establish "that the City's permit practices have a
significantly adverse or disproportionate impact on the physically disabled or elderly."
(104 F.2d at 306.) The plaintiff argued that there was great need for such a facility, and
thus the permit denial caused a significantly adverse effect on the disabled. The court
disagreed, holding that "[a] great community void may exist for lack of a [facility], but
that absence alone is not actionable. It is only for discriminatory housing practices that
the FHA provides a remedy." (Id.)
Similarly, requiring or denying a conditional use permit for the Narconon facility at 1810
does not cause a significantly adverse impact on the recovering chemically dependent
community's ability to obtain housing in the neighborhood of their choice. There is
nothing in the City's current code that would prevent Narconon or any other residential
service provider from leasing or purchasing any number of residences in any
neighborhood to house their clients, so long as they do not exceed six persons per unit.
Given the fees most residents of such programs must pay, this should not present a
significant financial burden to Narconon.
If a residential care facility provider obtains a residence that is appropriate in size and
situation to house more than six residents per unit, they have the option to apply for a
conditional use permit, and they have a good chance of it being granted. Seven residents
per unit in an expansive duplex might not be an excessive burden on a property or its
neighbors. Nine residents per unit in a cramped triplex probably is. Whether or not such
occupancy levels are appropriate for a particular property must be determined on a case -
by -case basis. If the City denies itself the flexibility to make these determinations by
removing its CUP requirement and /or banning such facilities from most residential
neighborhoods, it removes any power it has to encourage appropriate accommodations
for all its residents. Handicapped residents who get crammed into a miniscule living
space in order to keep operating costs down for the organization administering the facility
deserve the City's protection as well.
3 Amending the e City's ordinances as recommended
goes against the City's policy of providing
reasonable accommodation to the handicapped.
The recommended amendments to the Code also have an adverse impact on the
handicapped community to the extent that they bar any facility with over six residents per
unit from locating am-ivhere in the City of Newport Beach unless it is in one of the small
and highly limited multi- family zones. (Goldfarb memo, pages 13 and 17.) Under
current zoning ordinances, they can be located in any residential zone in the City. The
recommended amendments exclude such residential care facilities from locations that
may be well suited to their needs. "A municipality commits discrimination under section
3604(f)(3)(B) of the FHA if it refuses `to make reasonable accommodations in rules,
policies, practices or services, when such accommodations may be necessary to afford
`[the physically disabled] person equal opportunity to use and enjoy a dwelling. "' (Id. at
307, citing 42 U.S.C. Section 3602(b))
4. Most other aspects of recommended code amendmentsare either unnecessary or
could invite charges of discriminationfrom both handicapped and non -
handicapped community.
The recommendations on pages 12 and 13 and the matrices presented on pages 16 and 17
of Mr. Goldfarb's memo are somewhat confusing. Although he states that the current
code allows Residential Care, General in all residential zones, subject to a CUP, there
was no matrix entry for Residential Care, General on what Mr. Goldfarb presents as the
existing code on page 16. On page 17, where he presents a proposed amended matrix,
Residential Care, General, does appear, and appears to be either banned from all but
MFR zones, where the matrix indicates a CUP is required, or alternately banned entirely.
Earlier statements from Mr. Goldfarb appeared to indicate that no CUP should be
required for Residential Care, General. ( "[T]hese amendments will ...clarify that...
handicapped group housing for groups of seven or more is at least permitted in the Multi -
Unit Residential Zone and prohibited in others ..." (Goldfarb memo, pages 12 -13.) He
indicates the CUP requirement could probably be upheld in R -1 and R -2 neighborhoods,
but that the City could not meet its burden of justifying the CUP in multi - family areas.
(Goldfarb memo, page 12, paragraph 3.) If we have misinterpreted his memo and Mr.
Goldfarb actually recommends keeping the CUP requirement, perhaps a clearer drafting
of his memorandum was in order.
The question of whether or not the City wants to retain requirements for families or
"single housekeeping units" in residential zoning ordinances is a policy decision. I am
unfamiliar with the policy underlying its current inclusion in the code, but assume that it
was included to control density, prevent multiple families from overcrowding single
apartments, etc.
If the City intends to drop the "single housekeeping unit per residential unit" requirement,
it would be unadvisable and inaccurate to drop it solely in the multi - family zone.
Mr. Goldfarb makes a number of unsubstantiated assumptions about the character of
Newport Beach's multi - family residential zones. He states that "... there is not only a
significant turnover of residential units in the typical multi- family residential zone, but a
significant and relatively constant turnover of residents which comprise the living groups
within a dwelling unit in that zone. For instance we would imagine that significant
numbers of young adults live in the multi - family residential zone. Young adults
frequently change roommates and, therefore, can hardly be considered to embody the
stability typically associated with persons living together as a `single housekeeping
unit. "' (Goldfarb memo, page 12, paragraph 3.)
With this statement, Mr. Goldfarb demonstrates his complete lack of familiarity with the
character of the neighborhoods zoned multi - family in Newport Beach. Carol and Bill
Martin will submit a more thorough analysis of this issue, so I will limit myself to saying
that perhaps Mr. Goldfarb is confusing his zoning areas. His statement gives a
reasonably accurate description of the residents of certain neighborhoods in Newport
Beach which are zoned R -2, most notably parts of West Newport. The vast majority of
the residents of the oceanfront homes in the 1800 block do not meet this description.
Taking this into account, his recommended amendments to the code which would change
the designation from "multi - family" to "multi- unit" and impose a description of a "high
residential intensity district" on the zone do the residents and property owners in the
multi - family zones a grave disservice. (Goldfarb memo, page 18.) Other than 1810,
there is not a "high intensity" of population living in the properties on the 1800 block.
Mr. and Mrs. Martin's review of properties in other multi - family zones indicates that
there is not a high intensity of population in those areas, either.
If the City does plan to do away with the "multi - family" description, it would be well
advised to do away with the "family" description across the board to prevent a
disproportionate stigma from attaching to the multi -unit zone. "Single- Family" should be
changed to "Single- Unit ", "Two- Family" to "Two- Unit ", etc. If the city wants to
continue to control density through the "family" or "single housekeeping unit" definition,
it should not deprive the residents of the multi - family zone of this protection.
In summary, I believe that the current City ordinances do not violate the FHAA, and offer
adequate protection to all parties when they are appropriately enforced. I hope the City
will leave them intact and enforce them.
Sincerely,
Catherine Martin Wolcott
Cc: Robert Burnham, City Attorney
Bill and Carol Martin
•
N ^rZV NON°
Southern California Inc.
City of Newport Beach
Mayor Tod Ridgeway
P.O. Box 1768
Newport Beach, CA 93658 -8915
Dear Mr. Ridgeway,
February 9, 2004
I am sending you another support letter (Please see attached letter). This one is from a neighbor
that lives next door to our 1811 W. Balboa property.
I believe the Newport Beach City Council is honest and wants to base its decisions on the truth.
The truth is evidenced by proof that contains specifics, not by generalities, rumor or hearsay.
Complete evidence includes the time and date of the incident, where the incident took place, who
witnessed it, what exactly happened, and who or what was affected. I trust this council will get
that information, clearing up any misconceptions that have been presented or that might be
presented at the upcoming study session.
I look forward to seeing you at the study session and enlightening you on our program.
Sincerely,
Gerry Ma all, President
Office: ( ) 782 -0471
Cell: (760) 668 -4617
CC: Newport Beach City Council
CC: Newport Beach City Attorney
1810 W. Ocean Front, Newport Beach, CA Phone: Phone (800) 876 -6378 Fax (949) 675 -4479
www.usnodrugs.com
Brett Frazier
1809 Balboa Blvd., #C
Newport Beach, CA
92663
To Whom It May Concern:
I very much support my next -door neighbor, Narconon Newport Beach with
their house at 1811 Balboa Blvd. These neighbors have been friendly and
courteous. I received a newsletter from them recently and I think they are
providing a good service to the community by preventing our youth from using
drugs. I called them after receiving this information to let them know I supported
what they are doing and I told them about a porch light on their property that was
shining into my bedroom. They fixed it that day by putting it on a motion detector
so it would automatically turn off.
Please take the time to meet these residents and you will find out that they
are the same types of people that make up our community. They are sons,
daughters, fathers, mothers, students, workers, and professionals. They are
choosing to be responsible and do the right thing now. They should be
acknowledged for that.
Thank you,
Brett Frazi
NEWPORT BEACH CITY COUNCIL FEBRUARY 5 , 2004
3300 NEWPORT BLVD.
NEWPORT BEACH, CA 92660
DEAR CITY COUNCIL;
IN THE NEW ISSUE OF " PIER TO PIER ", THE NEWSLETTER OF THE CENTRAL NEWPORT BEACH
COMMUNITY ASSOCIATION, MRS MILLER AND I WERE SURPRISED TO LEARN THAT
RESIDENTIAL " RE- HAB " FACILITIES WERE MOVING INTO OUR LOCAL NEIGHBORHOOD. WE
BOTH TAKE THIS AS A VERY SERIOUS MATTER. AS EVERYONE KNOWS, PEOPLE THAT HAVE TO
TAKE ADVANTAGE OF THIS TYPE TREATMENT ARE NECESSARILY IN BAD MENTAL CONDITION.
OF THE RE -HAB FACILITIES MOVING INTO OUR CITY, SEVERAL ARE LOCATED QUITE NEAR
THE NEWPORT BEACH ELEMENTRY SCHOOL, AND TWO CHURCH DAY CARE CENTERS. THIS IS
TO MANY CONCERNED LOCAL RESIDENTS, NOT ACCEPTABLE AT ALL. WHY BRING THESE
MENTALY DISTURBED PATIENTS INTO SUCH CLOSE PROXIMINITY TO OUR LITTLE PRIZE AND
JOYS ? ? ? ? ? ??
MRS MILLER(ANDJHAVE GREAT EMPATHY WITH THESE PATIENTS, AS THEY WERE HANDED A
LIFE OF HABITUAL MISERY, BUT PLEASE KEEP THEM AWAY FROM OUR KIDS, AS THEY ARE THE
MOST PRECIOUS THING THAT WE HAVE. OUR CITY COUNSEL MUST KNOW OF SOME WAY TO
EASE THE RE -HAB FACILITIES OUT OF OUR AREA. THANK YOU VERY MUCH.
SINCERELY YOURS,
JOHN W. MILLER
JOAN E. MILLER
1232 WEST OCEAN FROMT
NEWPORT BEACH, CA 92661
PHONE ( 949 ) 673 - 5842