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Home My WebLink AboutSS2 - Federal Law and Group HomesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Study Session Agenda Item No. 2 February 24, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney 644 -3131, rburnhamCcDcity newoort-beach ca us SUBJECT: Discussion of Group Homes ISSUE: The City Council has asked for information helpful to the preparation and consideration of amendments to the Newport Beach Zoning Code that preserve the character of residential neighborhoods in a manner fully consistent with State and Federal statutory and decisional law related to the regulation of "group homes." DISCUSSION: On February 10, 2004, the City Council received testimony from residents, clergy and representatives of the recovery community on the need for, and desirability of, the regulation of group homes. For purposes of this memo, the term "group homes" means structures that house persons who are "abstinent in recovery" or who suffer from a disorder or other condition that would constitute a "handicap" under Federal or State law. The testimony centered on two areas — the role that group homes play in rehabilitation process and the impact that group homes can have on the character of residential neighborhoods. At the conclusion of the testimony the City Council: (a) continued the discussion of group homes to the February 24th study session to allow for additional testimony; and (b) asked staff and special counsel to continue the analysis of the State and Federal statutory and decisional law relative to the regulation of group homes. The statutory and decisional law relevant to the regulation of group homes, and the factual context within which that analysis must occur, is somewhat complex and confusing. The following is a summary of the statutory and decisional law that is most pertinent to the regulation of group homes: 1. State law requires the City to treat state - licensed drug or alcohol treatment facilities serving six or fewer occupants as single family residential uses. State law also preempts local ordinances imposing special building, fire safety, fee or permit requirements on state - licensed drug or alcohol treatment facilities serving six or fewer occupants. In this regard, the number of occupants does not include the state licensee, members of the licensee's family, or persons employed at the facility. 2. The Fair Housing Act Amendments of 1988 (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 /uses 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. 3. FHAA prohibits the City from, among other things, establishing a "one person per bedroom room" requirement for group homes, imposing distance requirements between group homes, and or preventing "for- profit" entities from establishing or operating group homes. RECOMMENDATION: Staff recommends that the City Council consider the additional testimony received on February 24th and direct staff to commence preparation of amendments to the Zoning Code concerning group homes consistent with Mr. Goldfarb's recommendations (see Exhibit A). Staff and special counsel will, as the City Council has already directed, continue to analyze the facts and law so that the amendments presented for consideration preserve the character of residential neighborhoods in a manner fully consistent with State and Federal statutory and decisional law related to the regulation of group homes. by: Robert Burnham City Attorney EXHIBIT A PROPOSED CHANGES Amend Section 20.03.030 in the following manner: (a) Existing: "Dwelling, Multifamily" means a building containing three or more dwelling tmits. 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.) 2. 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. 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) Existins: 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, without limitation group homes, sober living environments, recovery facilities, and establishments providing non- medical care for persons in need of services, supervision, protection, or assistance essential for sustaining the activities of daily living. (e) ExistinE: "Single- family Residential" means buildings containing one dwelling unit located on a single Iot. 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) Existine: "Two- Family Residential" means buildings containing two dwelling units located on a single lot. This classification includes mobilehome and factory built housing. 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 unit 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 ". Amend Section 20.10.020 in the following manner: Existing: R -A R -1 R -1.5 R -2 MFR Additional RESIDENTIAL Limited P P P P Group Residential P Residential Care, Limited P P P P P Sin e- family Residential P P P P P (D),(E),(M) Residential Two - Family Residential P P P (D) Proposed Amendment: R -A R -1 R -1.5 R -2 MFR Additional RESIDE' TUL (A).(B).(C) Day -Care, Limited P P P P P Residential Residential Care. Limited P P P P P Care. General CUP Single-fam ly Residential P P P P P (D) (E) (I\1) Residential Two - Family Residential P P P (D) 4. Amend Section 20.10.010(H) in the following manner: (a) Existing: H.. Provide public seniees 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 farming 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. COU"P NDA NO February 19, 2004 To: Hon. Tod Ridgeway Mayor City of Newport Beach From: Clifford and Carol Ranney 1540 E. Ocean Front Balboa, CA 92661 Subject: 1549 E. Ocean Blvd. - Cynthia Hampton Counseling The developments at this property only point out the obstacles facing the city in an attempt to maintain the residential character ofR -I neighborhoods. • Influx of people with many living in. • High turnover of counselors and/or patients. • Lessee is not in evidence for several days at a time. It appears this unit is a "mini rehab center" or an overflow unit connected with some other facility. While there does not appear to be more than six people living in at a time, to consider them an "organic family when one sees different people every week or so seems a stretch of the imagination. This type of situation has a negative influence on a family neighborhood: • Quality of life • Enjoyment of property • Fear of bodily harm • Fear of theft • Diminished property values It is difficult to understand the economics of locating recovery units on high value property unless the federal and state governments are making excessive payments and the city is not receiving adequate compensation for their operation. From the study session of February 10 it is evident that the council and city are under certain legal constraints concerning the location of these facilities but also that other cities have found solutions notwithstanding. It would seem that commercial operations should face serious scrutiny and an in depth approval process. We hope that the Council is able to develop a plan that can address our concerns. Mrs. Carol Martin 1824 West Ocean Front Newport Beach, Ca. 92663 February 19, 2004 Newport Beach City Council COU�C�L AGENDA 3300 Newport Blvd. OR Newport Beach, Ca 92658 NO.—� Re: February 24 Agenda item: Regulating Group Homes/MFR Zoning C) Gentlemen: Since time prevented the completion of my remarks to you at your study session on February 10, I would appreciate your consideration of these issues regarding the location of Group Rehabilitation Homes and the MFR zoning. Mr. Goldfarb recommended to you that Residential Care General be permitted in the Multi -Unit Residential zone (now known as the Multi Family Zone) and prohibited in the other zones. I previously discussed with you the misinterpretation of the demographics of the 1800 block of West Ocean Front that led to his recommendation. This recommendation has implications for the whole city of Newport Beach, not just the neighborhood surrounding one troublesome beach property. Permitting Residential Care, General, only in the MFR zone, especially without a Use Permit requirement, impacts all Newport Beach Multi - Family zones. This includes: Granville Condominiums in Newport Center Westcliff area- between Irvine and Dover, Cornwall/Rutland Rd. area Bayside Drive — East and West of the Balboa Island bridge Anchorage Apartments at the entry to Bayshores Irvine Ave. area across the street from Ensign Middle School Marguerite Ave. in Corona del Mar Also in CDM: Ocean Blvd. At Carnation; Also Avocado at Kewamee Balboa: the Caribe; former Plummer's Court Balboa Peninsula Point - Miramar between H and I Lido — several blocks of Lido Nord, several blocks of Lido Soud, Via Antibes West Newport — Las Brisas Apartments It is my belief that the City of Newport Beach is delinquent in its failure to 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 as they arise, and to protect the welfare of the tenants and the neighborhood. Existing codes need to be enforced. The city has the power, as described on page 6 of Mr. Goldfarb's memorandum, to issue an order to cease and desist until such time as the tenant and property owners have complied with existing law. There is no rational justification for ch5pgmg zoning descriptions to accommodate one difficult property owner. k, 4e I Ap 7il i� �x sm�& YAW 44" IN ". 04 j- Moll r. iil 5 t. �' i� <. �., °; '_yx ;�� j �� r.L 1" t #��, ' ^�.. m.. � � .421e'um�. � X .:t #� �!I'II _� ;, �� .v, c e i . I � Y I ��' <, �� i /y �� V P.� , �, � �' ��.. y► 'i i �� i M` ..�... __ M "V�. ��.� r--kr .�. � � . . ��« � � K �> ��`� . �� \ �� \� \ < . \, � <� \` . � ©� \ : < �_. �� t �\ \ \ � � » . � � * � � ® « �\ � '� � � �� > � � �� Ar Ab IMI'll- m ,:,h 56wr Pi tlw:i '090.0 "Id 0' 1 lay Am F- .� Pr b v v I �0. . i I I �. I r � u oo{. 1 i ✓ f ` • 'Rlii ty. _� 00 � J 1 qg �5 u or A• f 1, 4t -11, Its m a. I LIV 04- Barbara Roy 1806 W. Ocean Front Newport Beach, CA 92663 (949) 673 -6607 February 19, 2004 Honorable Mayor and City Council 3300 Newport Blvd Newport Beach, CA 92663 Subject: Recovery / Specialty Hospital Dear Sirs: COUNCIL AGENDA N0. -SISO, 0-01-01 Thirty feet from my home exists a structure that has been designated a specialty hospital, a detoxification center, a drug treatment center, a halfway house, and a recovery house. I am not sure of the correct terminology, but I am definitely aware of the negative impact this facility has had on the 1800 block. To support the ever - changing patients and staff, we are subjected to frequent traffic from garbage trucks, repair trucks, supply trucks, Unilab trucks, transportation vans, and visitor vehicles. Large numbers of people congregate on stairs, walls, walkways, decks, roof, and parking area to smoke and converse. Foot traffic across the alley to meetings, sauna, meals, garbage, bikes, vacuum and laundry creates congestion in an alley, which 1 understand is a fire lane. A commercial dryer drones constantly from 7am to 10pm daily. These activities at 1810 W. Ocean Front, a 30'W x 100'D lot with a 3' side yard setback, constitute a continuing public and private nuisance to its residential neighbors in the 1800 block of Ocean Front. Sincerely, & ! ai ,1 Barbara Roy Property Owner — 1806 W. Ocean Front ADULT NONMEDICAL ALCOHOLISM OR DRUG ABUSE RECOVERY OR TREATMENT FACILITY INITIAL LICENSING APPLICATION BOOKLET Revised 01/01 y Q� C? � w x r ADP 5085 -L SAL OF T L I FFdFtN STATE OF CALIFORNIA .A \ �rn 0 71 CALIFORNIA HEALTH AND HUMAN SERVICES AGENCY DEPARTMENT OF ALCOHOL AND DRUG PROGRAMS QUALITY ASSURANCE DIVISION LICENSING AND CERTIFICATION BRANCH 1700 K STREET SACRAMENTO, CA 958144037 (916) 322 -2911 FAX (916) 323 -0659 TTY (916) 445 -1942 INITIAL LICENSING APPLICATION Requirements for License Chapter 7.5, Part 2, Division 10.5 of the California Health and Safety Code states that "no person, firm, partnership, association, corporation, or local government entity shall operate, establish, manage, conduct, or maintain an alcoholism or drug abuse recovery or treatment facility in this state without obtaining a current, valid license pursuant to this chapter ". The code defines an alcoholism or drug abuse recovery, treatment, or detoxification facility as any facility, place or building which provides 24 -hour residential nonmedical services in a group setting to adults. For the purpose of further defining whether licensure is required, alcoholism or drug abuse recovery or treatment services mean services which are designed to promote treatment and maintain recovery from alcohol or drug problems which include one or more of the following: detoxification, group sessions, individual sessions, educational sessions, and recovery or treatment planning. If you have questions regarding the need for your facility to be licensed or regarding the requirements for licensure, please call the Department of Alcohol and Drug Programs at (916) 322 -2911 and request to speak with a licensing analyst. Procedure for Obtaining a License Applicants for licensure are required to submit a complete written application, demonstrate a capability to meet the goals and objectives of an alcoholism or drug abuse recovery or treatment facility, obtain a valid and appropriate fire clearance, and pass an inspection by a Department of Alcohol and Drug Programs licensing analyst. This booklet details the requirements in three sections: Section A — Contains the application forms which must be completed and submitted to the Department. Section B — Identifies documents the applicant must develop or secure and submit to the Department as a part of the license application. Section C — Identifies those areas that will be reviewed at the time the Department conducts its on- site review of the applicant's facility. Documents identified are not to he submitted to the Department prior to the review of the facility but must he readily available for review at all times. To assist applicants in supping ing the detailed information needed for the licensing process, a copy of the Licensing Regulations, Title 9, Chapter 4, Subchapter 5 of the California Code of Regulations (CCR) is enclosed with this booklet. Please do not bind or place the application in a protective covering. It is recommended that the applicant(s) retain a copy of completed materials for their records. Please mail the completed application forms contained in Section A and the documents required in Section B to: Department of Alcohol and Drug Programs Licensing and Certification Branch 1700 K Street Sacramento, CA 95814 -4037 2 Public Information Information provided by the applicant(s) for licensure can be made available for public review unless otherwise exempted by law (inspection of Public Records, Chapter 3.5, Division 7, Government Code). "For Profit" Applicant Fees Organizations applying for licensure, other than nonprofit organizations and local governmental entities, must submit the first two years' licensing fee with their applications. Pursuant to Chapter 7.5 of the Health and Safety Code, the Department of Alcohol and Drug Programs shall fix a fee for licensure and for license extension every two years in the amount sufficient to cover its cost in administering the licensure under this chapter for other than nonprofit organizations and local governmental entities. A fee of $2,150 has been established for a two -year license. Applicants shall send a check or money order, along with the initial application, made payable to: Department of Alcohol and Drug Programs. Because the fees are nonrefundable, applicants should be certain through discussions with a licensing analyst that they intend to go forward with the licensing process before they submit their application and fees. The Department will terminate the initial application process for failure to submit the licensure fee. License Application Processing Incomplete application(s) will delay the licensing process. The licensing process normally is completed within 120 days. The 120 days begins when an application is determined to he complete. 3 Existing Licensees ONLY IS THIS AN APPLICATION TO: ❑ MOVE AN EXISTING FACILITY FROM ONE LOCATION TO ANOTHER? If so, it is important to note that licenses are not transferable from one address to another. The licensee shall take the following steps: Call the assigned analyst at least 60 days prior to the move, and 2_ At least 45 days prior to the move, complete the initial application booklet. Failure to do so may result in a lapse in licensure. The required documentation for the license application may be limited to information specific to the facility if the "licensee's" file application Department is current. K. ❑ MODIFY AN EXISTING LICENSE (add /delete a building, add /delete an address on the license, or to increase or decrease total occupancy of the facility)? If so: Call your assigned analyst with information specific to the change. ADDITIONALLY, if the change is to add a building, address, or an increase in capacity: 2. Complete Section A -1 of this application, obtain a new approved fire clearance, update the sketch of the groundstfloor plans and mail to the address stated earlier. Please note that prior to the issuance of a revised license, the licensee cannot expand the capacity or provide services at another building or address. • ❑ REQUEST AN INITIAL LICENSE AT A NEW ADDRESS (not adding to an existing license nor relocating an existing facility)? If so: Call your assigned analyst and discuss the licensing package. The required documentation may be limited to the information specific to the new facility (i.e., fire clearance, designation of authorized representative, sketch of grounds, etc.). 4 SECTION A Application Forms For Internal Use Onl Applicant ✓ off and initial when submitting YES NO INC N/A ❑ 1. Application for License (A -1) ❑ 2. Administrator /Director Information (A -2) ❑ 3. Administrative organization, Corporations (A -3A) Public Agency, Partnership, Sole Proprietor, or Other Association (A -313) ❑ 4. Designation of Administrative Responsibility (A-4) ❑ 5. Facility Staffing Data (A -5) ❑ 6. Weekly Activities Schedule (A-6) Explanation of Section A - Forms to be submitted to the Department of Alcohol and Drug Programs to initiate the request for licensing. Facilities that have more than one property address may require completion of additional Section A portions of the application. If you have any questions regarding this issue call the Department of Alcohol and Drug Programs at (916) 322 -2911 and ask to speak with a licensing analyst. Application for License (A -1) - identifies the applicant(s), facility, and other required information for licensure. [Regulations Section 105161 2. Administrator and /or Director Information (A -2) - identifies the Administrator and /or Director of the facility applying for licensure and verifies qualifications to operate a facility. [Regulations Section 10564] 3. Administrative Organization - identifies the entity applying for licensure, Corporation (A -3A) or Public Agency, Partnership, Sole Proprietor, or Other Association (A -313). [Regulations Section 10516(a)(2)] 4. Designation of Administrative Responsibility (A-4) - identifies the person(s) authorized by the applicant to accept responsibility of facility in his /her absence. [Regulations Section 10564(a)(2)] 5. Facility Staffing Data (A -5) - identifies all facility personnel, including back -up persons and volunteers providing services. [Regulations Section 10564(f)] 6. Weekly Activity Schedule (A-6) - indicates the weekly schedule for specific activities and recovery or treatment services such as detoxification, group sessions, education, problem solving, counseling sessions, recreation, individual and family sessions, recovery or treatment planning, or other activities the facility is providing for the residents. [Regulations Sections 10501(a)(6) and 10574] N7 SECTION B - SUPPORTIVE DOCUMENTS REQUIRED TO BE SUBMITTED AS PART OF LICENSE APPLICATION Fnr IntPmal I kP. r)nly Applicant ✓ off and initial when submitting YES NO INC N/A ❑ 1. Approved Fire Safety Inspection Request (Standard Form 850) ❑ 2. Licensing Fees (Applicants other than nonprofit) ❑ 3. Plan of Operation ❑ a. Statement of program goals and objectives ❑ b. Outline of activities and services ❑ c. Admission policies and procedures ❑ d. Assurance of nondiscri mination in employment practices and provisions of benefits and services ❑ e. A copy of the facility's residential admission agreement ❑ f. Table of administrative organization of the facili ❑ g. Staffing plan, job descriptions, and minimum staff qualifications ❑ h. A sketch of the grounds, showing buildings, driveways, fences, storage areas, pools, gardens, recreation areas, and other space used by residents ❑ i. Floor plans which describe the dwelling capacity, intended use, and dimensions of the rooms ❑ j. Sample menus and schedule for one calendar week, indicating the times of day that meals are to be served ❑ k. Consultant and community resources to be utilized by the facility as part of its program ❑ 4. Provisions for Safeguarding Residents Property ❑ 5. Bacteriological Analysis of Private Water Supply EXPLANATION OF SECTION B - SUPPORTIVE DOCUMENTS TO BE SUBMITTED TO THE DEPARTMENT OF ALCOHOL AND DRUG PROGRAMS Fire Safety Inspection Request (Standard Form 850) — A valid and appropriate fire clearance issued from the fire authority having jurisdiction for the area in which the facility is located. The fire clearance shall include a determination of the number of beds for ambulatory residents and for nonambulatory residents in the facility and any restrictions regarding nonambulatory clearances. [Regulations Section 10517(a)(1)] 2. Licensing Fees — Except for facilities which are operated under the auspices of a nonprofit organization or a governmental entity, all applicants for licensure and all licensees are required to a pay a licensing fee. [Regulations Section 10533(a) 3. Plan of Operation — Shall include, but not be limited to the following items [NOTE: Items a, b, and c should clearly demonstrate a relevance to the type of submitted application — alcohol , drug or combined alcohol and drug facility(ies)]: a. Statement of program goals and objectives — written statement to include program goals (intent or the purpose of its existence) and objectives of the facility. [Regulations Section 10517(a)(2)(A)] b. Outline of activities and services — written statement listing the activities and services being provided by the facility. [Regulations Section 10517(a)(2)(B)] C. Admission policies and procedures — written statement of admission policies and procedures regarding acceptance of residents. [Regulations Section 10517 (a)(2)(C)] d. Assurance of nondiscrimination in employment practices and provision of benefits and services — written assurance of nondiscrimination in employment practices, provision of benefits and services. [Regulations Section 10517(a)(2)(D)] e. A copy of the facility's residential admission agreement — a copy of the most current admission agreement used by the facility. [Regulations Section 10517(a)(2)(E)]. Pursuant to Title 9, California Code of Regulations, Section 10566, the admission agreement shall specify all of the following: • Services to be provided, • Payment provisions including (amount assessed and payment schedule), • Refund policy, • Those actions, circumstances or conditions which may result in resident eviction from the facility, • The consequences when a resident relapses and consumes alcohol and /or nonhealth sustaining drugs, and • Conditions under which the agreement may be terminated. SECTION B - REQUIRED TO BE SUBMITTED AS PART OF LICENSE APPLICATION (CONT.) Table of administrative organization of the facility — a chart that shows the governing board, advisory groups, including resident council when applicable, and both lines of authority (straight lines) and communications lines (broken lines) to all staff positions. [Regulations Section 10517(a)(2)(F)] Staffing plan, mob descriptions, and minimum staff qualifications — narrative description of staff needs (i.e., briefly describe staff composition, job description) for each position at facility (both paid and volunteer) which includes minimum staff qualifications for each position. [Regulations Section 10517(a)(2)(G)] h. Sketch of Buildings and Grounds — sketch on an 8'/2 " x 11" sheet of paper all building(s) to be occupied, including a floor plan of all rooms intended for resident's use. A sketch of the grounds showing buildings, driveways, fences, storage areas, pools, gardens, recreational area and other space to be used by residents. All sketches shall show dimensions but need not be to scale. The number of residents per bedroom, and the location and the number of beds for all residents, including the location of beds for infants and other nonambulatory persons, must be identified. [Regulations Section 10517(a)(2)(H) &(I)] Sample menus and schedule for one calendar week — menu(s) shall include times of food service, food provided for breakfast, lunch, and dinner for one week, and type and availability of snacks. [Regulations Section 10517(a)(2)(J)] Consultant and community resources to be utilized by the facility as part of its program. Provide a copy of this inventory which shall be used as a resource for assisting participants in securing additional services to meet and maintain their personal well -being while continuing to enhance personal development. [Regulations Section 10517(a)(2)(K)] 4. Provisions for Safequarding Resident's Property — describe the process for safeguarding of resident's personal property accepted by the licensee for safekeeping, if it is the licensee's policy to accept such valuables. [Regulations Section 10516(a)(8)] 5. Bacteriological Analysis of Private Water Supply — a bacteriological water analysis is required for alcoholism or drug abuse recovery or treatment facilities that receive water from a nonmunicipal source. This shall be conducted by the local health department, the State Department of Health Services, or a licensed commercial laboratory. This analysis shall be done on an annual basis. [Regulations Section 10517(b)] (-1 SECTION C - SUPPORTIVE DOCUMENTS Explanation of Section C — At the time of the on -site review the following items need to be ready and available for the licensing analyst. Plan of Operation A written plan of operation must be maintained which includes, at minimum, all requirement s listed in Regulation Section 10517(a)(2). 2. Personnel Records of all Paid and/or Volunteer Staff Personnel records must, at minimum, contain all of the requirements listed in Regulations Sections 10564, 10565 and 10572. The attached form Health Screening Report — Facility Personnel (C -3) may be use for Sections 10564(c) and 10565(b). 3. Resident Records Resident records must, at minimum, contain all requirements listed in regulations Sections 10566, 10567, 10568 10569 and 10572. 4. Telephones and Transportation Telephones must be provided for emergency use to comply with Regulations Section 10570. Vehicles used to transport residents must comply with Regulation Section 10571. 5. Health Related Documents and Policies Health related documents and policies must contain all requirements listed in regulations Section 10572. The attached forms Centrally Stored Medication and Destruction Record (C-6A) may be used by the facility and Unusual Incident/Injury/Death Report (C-613) shall be used by the facility. In addition, there shall be written rules and policies to prevent persons (except in detoxification programs) who have consumed alcohol or other drugs from being on the premises [Section 10572(e)]. 6. Food Service — Documents and Storage Food Service department, food preparation areas, and storage areas will be reviewed to ensure compliance with Regulations Section 10573. Physical Service — Documents and Storage The building will be inspected to ensure compliance with Regulations Section 40580 through 10584. Federal Requirements A copy of the Code of Federal Regulations regarding confidentiality, (42 CFR) and the Code of Federal Regulations regarding nondiscrimination, (45 CFR), must be maintained at the facility and available for review in accordance with Regulations Sections 10517(a)(2)(D), 10564, 10568, and 10569. The attached form Personal Rights (C -9) may be used by the facility for convenience. 2 State of California Department of Alcohol and Drug Programs Health and Human Services Agency APPLICATION FOR INITIAL LICENSE A -1 DIRECTIONS TO FACILITY (applicant may include map) COUNTY: DATE: REVIEWED BY: ID NUMBER: INITIAL APPLICATION 1. APPLICANT INFORMATION: Name of Applicant (if Corporation, legal name of Corporation) (Mailing Address of Applicant) (City /State) (Zip) (Contact Person) TYPE OF ORGANIZATION: ❑ For Profit (Title) ❑ Nonprofit ❑ Other, please explain: (Telephone) (Fax number, if applicable) Partnerships, corporations, sole proprietors and other associations must complete form ADP 5085 A -3A or A -3B. APPLICANT: Has the applicant ever been a licensee or co- licensee of another alcoholism or drug abuse recovery or treatment facility or a facility licensed by Department of Social Services - Community Care Licensing? ❑ Yes ❑ No If yes, name of facility: 10 2. License Number: Licensing Agency: Has the applicant ever voluntarily surrendered, had a denial, suspension, or revocation of a residential license for an alcoholism or drug abuse recovery or treatment facility or a facility licensed by the Department of Social Services - Community Care Licensing? ❑ Yes ❑ No If yes, the date license was surrendered, denied, suspended, or revoked: FACILITY /PROGRAM INFORMATION: (Name of Facility /Program) (Street Address of Facility/Program) (City /State) (Zip) (County) (Facility /program Phone) (Facility /program FAX Number Proposed facility /program located within: ❑ Incorporated city limits OR ❑ Unincorporated portion of the county Mailing Address - (if different from above) (Name of Facility Administrator) (Title) (Telephone) A. TYPE OF ALCOHOL ANWOR OTHER DRUG RECOVERY OR TREATMENT SERVICES PROVIDED: (Check all that apply) ❑ Detoxification* ❑ Group Sessions ❑ Individual Sessions ❑ Educational Sessions ❑ Recovery or Treatment Planning ❑ Other: *Additional regulatory requirements must be met to provide detoxification services. Refer to Title 9, CCR, Section 10572(b)(1). B. TOTAL OCCUPANCY OF FACILITY (FOR FIRE CLEARANCE PURPOSES) AS DETERMINED BY THE FIRE INSPECTOR. (This is the maximum number of individuals who live at the facility and are approved by the fire safety inspector.) These individuals include the residents receiving recovery, treatment or detoxification services, children of the residents, and staff. It is important to note that staff includes individuals who work for the applicant in exchange for either monetary or in -kind compensation (e.g., room and board). Total occupancy cannot be exceeded for any reason. C. MAXIMUM REQUESTED ADULT RESIDENT CAPACITY OF THE FACILITY (The number of adult residents that receive recovery, treatment or detoxification services at any one time, which cannot be greater than the total occupancy shown in B above): 11 D. MAXIMUM NUMBER AND AGE RANGE OF DEPENDENT CHILDREN WHO ARE SUPERVISED BY THEIR PARENT(S) IN THE FACILITY. This includes temporary residing (i.e., overnight, weekend visits) of dependent children. (Since there must always be at least one adult being served, the maximum number of dependent children housed must be at least one less than the total occupancy, determined by the fire inspector, as shown in 9 above): E. DURATION OF USUAL RECOVERY OR TREATMENT PROGRAM IN FACILITY TO BE LICENSED (in days): IS THE FACILITYIPROGRAM ACCESSIBLE TO INDIVIDUALS IN WHEELCHAIRS OR OTHER NONAMBULATORY CONDITIONS? ❑ Yes ❑ No NOTE: The Americans with Disabilities Act of 1990 (ADA) - Public Law 101 -336, C42 U.S.C., Chapter 126 is a comprehensive federal anti - discrimination law for people with disabilities. The Department of Alcohol and Drug Programs reminds all providers of alcoholism or drug abuse recovery or treatment services that discrimination against persons with disabilities is prohibited. Further, the Department of Alcohol and Drug Programs encourages you to become familiar and comply with the ADA guidelines. Local governmental entities should be contacted for specific ADA requirements for your area. G. IS FACILITYIPROGRAM APPLYING FOR A WAIVER TO SERVE ADOLESCENTS? ❑ Yes ❑ No If yes, a proposal to serve adolescents must be submitted with the application (in accordance with Title 9, CCR, Article 8, commencing with Section 10590. 12 H. POPULATION DEMOGRAPHICS Describe and check the demographics of the resident population to be served (age, race /ethnicity, and sex). [Title 9, CCR, Section 10516 (a)(5)] ❑ 1.1 General Population (co -ed)' ❑ 1.4 Dependent Children of Residents" ❑ 1.2 Men Only ❑ 1.5 Adolescents (14 -17)' ❑ 1.3 Women Only ❑ 1.8 Dual Diagnosis ' The applicant prior to serving this population must meet additional regulatory requirements. (Co-ed refer to Title 9, CCR, Section 10581(f)(1 -3)) (Adolescents refer to Title 9, CCR Sections 10598- 19631) The approved fire clearance must address any dependent children of residents residing at the facility. This includes temporary residency (i.e., overnight weekend visits of dependent children). Serving this population may require the applicant to obtain a license from another state agency. For example, the Department of Alcohol and Drug Programs does not have licensing authority over facilities in which staff provides assistance to residents with activities of daily living. This includes, but is not limited to, assistance in dressing, grooming, bathing, and other personal hygiene. CONTACT THE DEPARTMENT OF SOCIAL SERVICES - COMMUNITY CARE LICENSING at (916) 324 -4031 or a regional office (identified in the government pages of a local phone book) if you have questions regarding the proper licensing department. FACILITY DESCRIPTION: Was the building currently under consideration previously licensed as a residential facility by the Department of Alcohol and Drug Programs, Department of Social Services or Department of Health Services? ❑ Yes ❑ No ❑ Unknown If yes, give former facility name, name of licensing agency, and license number: (Name) (Licensing Agency) 13 If renting or leasing, name, address and telephone number of property owner: (Name) (Telephone) (city /state) (Zip) N. RECORDS: (Regulations Section 10568(a) requires resident records to be maintained at the facility site. However, Regulations Section 10565(c) allows personnel records to be maintained in a central location provided that they are readily available to the department at the facility site upon request). Are your personnel records maintained at the facility site? ❑ YES ❑ NO If no, address where personnel records are maintained: O. EMPLOYEES: Total number of employees at facility to be licensed: Total number of employees of provider: 3. APPLICANT RESPONSIBILITIES: A. In addition to complying with the Health and Safety Code and regulations and the Alcohol and /or Other Drug Program Certification Standards concerning licensing, certification and fire safety, I /we understand that there is also an obligation to meet other state, federal, and /or local codes and regulations, such as zoning, building, sanitation, labor, nondiscrimination, confidentiality, and Americans with Disabilities Act. B. Permission shall be obtained by the applicant from the Department of Alcohol and Drug Programs prior to making any changes that affect the terms of the license and /or certification. C. The applicant may withdraw its application by submitting a written request to do so. Such withdrawal shall not constitute denial of the application. However, withdrawal does not prohibit the Department of Alcohol and Drug Programs from taking action to deny an application. 4. AUTHORIZED SIGNATURE(S) OF APPLICANT: THE UNDERSIGNED ASSURES THAT THE APPLICANT DOES NOT DISCRIMINATE IN EMPLOYMENT PRACTICES AND PROVISION OF SERVICES ON THE BASIS OF ETHNIC GROUP IDENTIFICATION, RELIGION, AGE, SEX, COLOR, OR DISABILITY PURSUANT TO TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 (SECTION 2000d, TITLE 42, UNITED STATES CODE); THE AMERICANS WITH DISABILITIES ACT OF 1990 (SECTION 12132, TITLE 42, UNITED STATES CODE); SECTION 11135 OF CALIFORNIA GOVERNMENT CODE; AND FOR RECIPIENTS OF FINANCIAL ASSISTANCE, THE REHABILITATION ACT OF 1973 (SECTION 794, TITLE 29, UNITED STATES CODE), AND CHAPTER 6 (COMMENCING WITH SECTION 10800) DIVISION 4, TITLE 9 OF THE CALIFORNIA CODE OF REGULATIONS. 16 J. 2. Total number of buildings to be included in the license: 3. Are all buildings located on the same property or integral components of the same facility? ❑ Yes ❑ No 4. Is major construction anticipated? ❑ Yes ❑ No If yes, give construction initiation and completion dates: (Initiation) (Completion) Please note: New construction and major renovations need to comply with ADA regulations. 5. Is water used for human consumption from a municipal water source? ❑ Yes ❑ No (a) If yes, give the name of the municipality: (b) If no, give source of water: NOTE: A bacteriological analysis is required for nonmunicipal water (Chapter 5, Division 4, of Title 9, Section 10518, California Code of Regulations). The local health department, the State Department of Health Services, or a licensed commercial laboratory may conduct this. A copy of the analysis is to be submitted with the application and shall be updated annually and maintained at the facility. NONPROFIT APPLICANTS ONLY (any change to the information below must be reported to the Department of Alcohol and Drug Programs): Have you obtained tax - exempt status from the Internal Revenue Service under Internal Revenue Code 501(c)(3) and from the California Franchise Tax Board under Revenue and Taxation Code 23701d? ❑ YES ❑ NO IF YES: What is your primary purpose (check one)? ❑ Charitable ❑ Religious ❑ Educational ❑ Other - Please Specify: IF NO: Are you nonprofit based on another provision of the law? ❑ YES ❑ NO IF YES: Specify the provision: 14 K. RELIGIOUS ACTIVITIES: 1. Do you mandate religious study or activities as part of your recovery, treatment, or detoxification services? ❑ YES ❑ NO IF YES: The religious studies or activities must be reflected on the Weekly Activities Schedule and in the Admission Agreement. 2. Do you offer, on a voluntary basis, religious study or activities as part of your recovery, treatment, or detoxification services? ❑ YES ❑ NO IF YES: Religious study or activities and distinct nonreligious activities for those not choosing the religious studies or activities must be reflected on the Weekly Activities Schedule and the Admission Agreement. IT IS IMPORTANT TO NOTE: PUBLIC FUNDS CANNOT BE USED TO SUPPORT RELIGIOUS STUDY OR ACTIVITIES. L. PUBLIC FUNDING: (1) Do you have a county contract? ❑ Yes ❑ No (2) Do you receive perinatal funds? ❑ Yes ❑ No (3) Do you receive any funds from the Department of Corrections? ❑ Yes ❑ No If yes, check source: ❑ Bay Area Services Network ❑ Prison Project Network ❑ Parole Partnership Program ❑ Other: (4) Other public funding: M. PROPERTY OWNERSHIP: ❑ Own ❑ Rent ❑ Lease ❑ Other (specify): 15 A. If the applicant is a sole proprietor, the application shall be signed by the proprietor [Title 9, CCR, Section 10516(b)] B. If the applicant is a partnership, the application shall be signed by each partner. [Title 9, CCR, Section 10516(b)(1)] [Standards Section 3030 a. 2. B.] C. If the applicant is a firm, association, corporation, county, city, public agency or other governmental entity, the application shall be signed by the chief executive officer or the individual legally responsible for representing the agency. [Title 9, CCR, Section 10516(b)(2)] D. The applicant(s) affirms that the facts contained in this application and supporting documents are true and correct. (Title) (Date) (Signature) (Title) (Date) (Title) (Date) 17 l 17 - IlUdULIOIIL YY VIRS1 Vll ULU YYOV California Home rage r or Sundav, Fetwr ADP Home About Us Alcohol /._Druuc Programs Contact ADP Comments / Complaints Director's Web Site Job Opportunities Related Web Sites Resource Center Site Map 4WW .�Oao"DEPg4 r4"�!\ •r r.raer 0 25YEARS `;sue'*OR Qa� Treatment Worksl on the Web Your search found 6 treatment providers. New Search County: County Contact Number: (714) 834 - Orange 6032 Facility: Chemical Dependency Center 1 Hoag Drive Newport Beach, CA 92658 Phone: 949 760 -5656 Services Provided: utpatient/Nonresidential Services Intensive Outpatient/Day Program Medical Detoxification Counseling: • Individual • Family Relapse Prevention Aftercare Prevention Community Drop -In Center Self-Help Groups Facility Accommodates: • Men • Women • Transgender coessible to: • Mobility - Impaired onsultation Services to Employers Facility: Coastal Family Therapy Services 1000 Quail Street Suite 220 Newport Beach CA 92660 Phone: 949 851 -5022 Services Provided: utpatient/Nonresidential Services Intensive Outpatient/Day Program Counseling: • Individual • Group • Family Relapse Prevention Aftercare Prevention Facility Accommodates: • Men • Women • Transgender Special Program(s) for: • Youth /Adolescents (Under 18) ccessible to: • Cognitive - Impaired Services for Dual Diagnosed I r MY CA Treatment • Director • Forewor • About T • City-Cor • Disabilit • Giossar • Treatme on the N • Update I Listing http: // txworks .adp.ca.gov /TWWproviders.asp 02/22/2004 Narconon 11810 West Ocean Front Newport Beach, CA 92663 s Provided: .ial Treatment/Recovery ical Detoxification ng: • Individual Prevention Accommodates: • Men • Women ible to: • Cognitive- Impaired acili : Academy Of Defensive Driving 000 Birch Street Suite 120 New ort Beach, CA 92660 Phone: 949 752 -0710 ervices Provided: Driving- Under - The - Influence Program Facility Accommodates: • Men • Women Facility: Relapse Prevention Program 71 Old Newport Road Newport Beach, CA 92663 Phone: 949 631 -0550 ervices Provided: utpatient/Nonresidential Services ounseling: • Individual • Group • Family Relapse Prevention Aftercare Facility Accommodates: • Men • Women Accessible to: • Mobility-impaired Facility: Coastal Recovery Living 1216 West Balboa Boulevard Newport Beach, CA 92661 Phone: 949) 673 -7132 ervices Provided: Outpatient/Nonresidential Services Intensive Outpatient/Day Program ounseling: • Individual • Group • Family Relapse Prevention Aftercare Facility Accommodates: • Men Accessible to: • Cognitive - impaired Services for Dual Diagnosed i ar V � vi ✓ http: // txworks .adp.ca.gov /TWWproviders.asp 02/22/2004 Is an By MARTHA GROVES 21m eStgQwriter . Ali, Malibu. Sun, sand, rehab. For years, "Malibu" and "re- habilitation clinic" have been co- dependent, you might say, in many a celebrity news snippet. Ben Aftleck, Charlie Sheen, Rob- ert Downey Jr., Diana Ross, Paula Poundstone — the •list reels on of stars clearing up 'some personal issues" at chic spbta charging $30,000 or so per month. Enough with the detox..al- eady, a few Maiibuites re 3leading. With the city's blessing, a wiriudttee is lobbying the state :o ' change a law that residents iay.. ::has encouraged such cen- ers, most of them licensed for +ix .beds, to proliferate in their :oastal toVn's wealthy neighbor- loods. The panel's name? Residen- ial Lltegrlty and Peace, or RIP. "Rehabs are high - traffic busi- tesses," said Beth Dorn, who Leads the group. "These places hould be in commercial areas." . [See Malibu, PageA161 t i TUESDAY, FEBRUARY 24, 2004 OC LOS ANGE. At, _ ident'st Fight Pro: " - nation ,- f Rehab tu3'', �`dfalibu, n, Page Al j a� Mallbu residents aren't imag- i ifng things when they say that rehab is a growth industry. In the last three years alone, 12 new re- hab facilities have opened in the community. And, although three zithers have closed in that time, the city's total number of rehab centers stands at 16. Three ap- pilcations are pending. o" Home to 13,000 people, Ma- tkbu thus has one licensed resi- dential program for every 810 or so residents. For Los Angeles County overall, the ratio is one center for every 58,100 people. So what's bringing rehab cen- ters to Malibu? `Although the number of such facilities state- wide has grown consistently for many years, the industry got a boost in 2000 with the passage of Proposition 36, which allows nonviolent drug'-offegders to choose treatment rather than jail. And don't forget the seaside charms and rustic affluence that soothe the battered soul. Indeed, many of the rehab centers in Malibu could pass for receiving its state license, ac- cording to Mary Rauso, a,Crea- tive Care consultant. Many days, dozens of vehicles — belonging to Creative Care's 40 or so thera- pists, social workers, cooks and other employees — sit in the compound's two parking lots. A few hairpin turns uphill Centers in Malibu lavish .resort :hotels, with mas- sage. and workout rooms. 'Pas- sages, a facility with marble floors and crystal chandeliers, opened in 2001 with a fancy re- ception — after a Los Angeles County Superior Courtjudge de- nied neighbors' request for a temporary restraining order against the facility. Rehab can be alucmtive busi- ness, said Richard A. Rawson, associate director of the UCLA Integrated Substance Abuse Programs. Some high -end cen- ters in Malibu, he said, "are virtu- ally all cash," with clients paying $30,000 to $50,000 for a standard 28 -day stay. The facilities appeal not just to movie stars but also to law- yers, surgeons and other wealthy professionals who count on re- hab administrators' legendary professional discretion.. '.The patients'participate in individual'and group counseling and educational sessions. "So- cial detox" — a method of getting drugs `or alcohol out of the sys- tem without using medication — from Dorn, within Trancas High- lands, sits another such facility, and an application has been filed for yet another nearby. Just be- low Dorn s residence. another house recently changed hands, and the California Department of Alcohol and Drug Programs said that in late January it re- is also_a part of the regimen at many :*lers. All" of this transpires in ,a, set- ting desi$ried,tofeel like home — or even better than home — with gourmet chefs, kayak rides and private therapy sessions in the sand, as the Passages website advertises. For Dorn and her husband, Ryan, the proliferation of these centers has started to disrupt the tranquillity they have cher- ished .In their gated community of Trances Highlands, dotted with 30 or so houses. From her hillside perch, Dorn peers down on Zuma Beach and neighbors' $2- million homes, most of which sit on at least two sage- covered acres. But not far down winding Trances Canyon Road, and out- side the gated community, are ..three douses that have been con- verted into rehab clinics, all op- erating under the name Creative Care and each approved for six beds.. A'fourth facility, next door to the other three, is on the verge of ceived an application for a rehab facility there. Malibu rehab centers such as Passages and Promises, whose clients also make the tabloids now and then, contrast with the far -from -plush clinics typically found in downtown Los Angeles and other parts of the county. As of Jan. 1, Los Angeles County had 172 licensed residential pro. grams, more than one -fifth of the state's total of 811. . acce " � F Pt pub$c fuiicls,'_p N ProBrame'haye'tieen ON i0 serve a privately funded, affluent Part of society," said David Fein- berg, who supervises licensing for the state Department of cohol and DrugPrograms. As more rehab facilities cro up, neighbors worry that the ea= tra people will overtax septic sys= terns or overwhelm narrow', treacherous hillside roads: Dorn, who has a son and two step= daughters, said she and her ini - band had been "run off the road" several tlnies by drivers they 010 not recognize. - One `YCCBnt morning, they were: led to come;;upon'4 man vieaiirtg headphones lying on`Trancas Car{yon Roaa: Dorn Jai-t deMitl'vea' tip those incidents to rehHb`r'xnipm _'Eric Myer, a photographer in Trances Highlands, said he doubted that the state law en' couraging such facilities ever in- tended for them to be clustered so closely. ' "You're basically creating a medical subdivision," Myer saki. Myer acknowledged that it could be tough to elicit sympa- thy among state lawmakers for the residents of "Beverly dills by the sea" — and that Malibu' dwellers are opening themselves to charges of ND4Byysm. Marty residents say they understand and embrace the Philosophy behind residential rehab, which aims to provide pa' tients a serene place to recover and to help them ease back into society. "I actually am for the pro, gram," said Malibu Mayor Ken Kearsley. "But they wear out the neighborhood when they have four or five in the same immedi- ate geographic vicinity.- The is Saw the advent of small m re ,iehs flitation faoTiitles'in f.rR.Silchcen- ters began to flourish in 1979; when a new state law prohibited cities from imposing zoning re- strictions that discriminated against facilities with six beds or fewer. The idea was to help rehab facilities get offthe ground, given the growing need for recovery treatment and detoxifleation: On any given day, according to the state Department of Alcoo- hol and Drug Programs, more than 100,000 individuals receive treatment services statewide-. Each month, more than 13,000 Californians are on waiting lists. And although rehab centers are in demand everywhere, one rehab specialist suggested that Malibu has a particular need. "-The loca7Alcoh6lies Ationp moos meetings are SAM and so rich and there are so..many "of them; ",_ said ; Jerry sc4bin� dentfal Treatment Center. "For a little town ... there's a bur= geoning community of recovery." Although Rawson of UCLA said it was "not typical to have bunches" of centers together, he defended many of the industry's practitioners. "I have to say some of these people are very well intended," he said. "Many have children or family members who had addiction problems." ` That might be, but some Ma- libu residents wish state law wouldn't allow so many in their, small town. "As it is now," said Bent Krings, Dom's neighbor, "you could fill an entire city with re, habs. There's really nothing any, one can do." .i - iicaununt vvvia3! vii uic vvcU rage Z or Z ices Provided: atient/Nonresidential Services sive Outpatient/Day Program iential Treatment/Recovery cal Detoxification Accommodates: • Men • Women • Transgender ible to: • Cognitive - impaired s for Dual Diaqnosed Your search found 3 treatment providers. New Search. Back to Top. of Page Conditions of Use i Privacy Notice i Email Webmaster © 2003 State of Califomia. The content found herein may not necessarily represent the views and opinions of the Sci Administration. http: // txworks ,adp.ca.gov /TWWproviders.asp 02/24/2004 «vi - yi lauii wu •• van.: w. ui4 •• IV rdgu 1 Vl L California Home Tuesday. FebU� ADP Home About Us '" N k a ldww --k •W plMlltlttMlM frN et �kobsl apiK di•t<P Treatment Works! on the Web Proqrams Your search found 3 treatment providers. New S.e_.arch Contact ADP Comments / County: Los County Contact Number: (626) 299- Treatment Angeles Complaints 800 564 -6600 •Director Director's Web Site • Forewor Job Opportunities Related Web Sites Resource Center Site Map WW aHV'QEr�T4 �° cyl a• •.roof 1 25YEARS h o` acill : Peace Park 300 Kanan Dume Malibu, CA 90265 Phone: 310 457 -0121 Services Provided: Residential Treatment/Recovery ounseling: • Individual • Group Relapse Prevention Aftercare Prevention Self -Help Groups Facility Accommodates: • Men • Women • Transgender Accessible to: • Cognitive - Impaired [Services for Dual Diagnosed Facility: Promises Residential Treatment Center Malibu 0723 Rockcroft Drive Malibu, CA 90265 Phone: 310 317 -9233 Crisis Line: 800 595 -8779 Services Provided: Residential Treatment/Recovery Medical Detoxification Counseling: • Individual • Group • Family Relapse Prevention Aftercare Self -Help Groups Facility Accommodates: • Men • Women • Tran ender Facility: Creative Care Malibu 5909 Trancas Canyon Road Malibu, CA 90265 • About T • City-Cor • Disabilit • Glo_s_sar • Treatme on the N • Up_date.i Listing http://txworks.adp.ca.gov/TWWproviders.asp 02/24/2004 "RECEIVED ER AGEN A PRINTED!' S a `� la4lo N^r4CFr NON° Southern California Inc. February 20, 2004 City of Newport Beach Mayor Tod Ridgeway P.O. Box 1768 Newport Beach, CA 93658 -8915 Dear Mayor Ridgeway, It appears that this issue regarding group homes in Newport Beach originally began with misinformation, exaggerations and generalities about the Narconon program spread by a neighbor who appears to have been discriminating against people currently in recovery from alcohol and drug addiction. Discrimination is based on prejudices, generalities and stereotypes. The only way to make sure discrimination does not affect decisions regarding this issue with group homes is to first expose those people who are discriminating and then to correct the misinformation, exaggerations and generalities people might have been mislead by. I can put to rest any falsehoods people may have heard about our program by presenting the truth, and we have and will continue to find solutions to any legitimate concerns. But, this takes communication between us and our neighbors, which is why I have set up a meeting with our neighbors (please see attached neighbor letter). My hope is we can have a resolution on this issue and have a more harmonious neighborhood again. T you, Gerry M shall President 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 N ^I4C r NON° SOUTHERN CALIFORNIA, INC. Dear Neighbor, Feb. 15, 04 You are cordially invited to a neighborhood meeting to be held on Saturday. February 21, 2004 at the Best Western Newport Mesa Inn at 2642 Newport Blvd in Costa Mesa at 3:00 PM. Refreshments will be served. The city's ability to regulate our center is limited by the laws regarding the California State Fair Housing Act and the Americans with Disabilities Act. These laws protect homes like ours, but they do not always resolve issues neighbors may have with the homes. Friendly communication with workable solutions is the answer. With that in mind, at our upcoming neighborhood meeting, our purpose is to gain an understanding of our community members' concerns, ideas, and viewpoints. This will enable us to make better, informed decisions and plans, which meet our neighbors' needs. This may not be required of us by law, but it is required of its as good neighbors. Please RSVP, by calling our receptionist at (949) 675 -8988. Th k you, Gerry shall President Cell (760) 668 -4617 Drug and Alcohol Education and Rehabilitation Services 1810 West Ocean Front, Newport Beach, CA 92663 Phone: (800) 876 -6378 Fax: (949) 675 -8991 \�x X�.eddictioncai.COm JAMES C. PERSON, JR. Attorney at Law 507 29th Street - Suite A Newport Beach. California 92663 February 5, 2004 The Honorable Tod Ridgeway, Mayor and Members of the City Council City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Telephone (949) 673 -9201 Facsimile (949) 673 -0774 E -Mail thejcp @pacbell.net "RECEIVED AFFER AGENDA PRINTED:" SSA -a 0 Re: Study Session Item AGroup 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 34th Street in Newport Beach as a place where persons who had experienced drug and alcohol problems could come and live after getting Asober@ 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 AThe 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. Very truly yours, JAMES C. PERSON, 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 2811 Villa Way, Newport Beach, California (non- residential). The AVictorian 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 "RECEIVED AFTER AGENDA I PRINTED:" a "T February 24, 2004 Mayor Tod Ridgeway Mayor, City of Newport Beach Re: 1810 W. Ocean Front Dear Mayor Ridgeway, Since I can't be at the study session or the city council meeting today, 1 am writing this letter to give a little history of 1810 W. Ocean Front. My wife and I purchased this property, which we nicknamed "The Sandcastle ", in 1979. It is one of the tallest buildings on the oceanfront, and a "Landmark" for the ships at sea to identify Newport Beach. 1 started working with realtors doing summer /winter rentals, and learned that many of these tenants created a nuisance to the neighbors with their noise, parties, and cars. At this point we thought that renting to a responsible, controllable group would be better. I met with neighbors, worked with our Councilman, Don Strauss, the City Fire Chief, Captain Upton, and the State, to find out what needed to be done to our building to meet the necessary code requirements for a group home. Many months and many dollars later, we had made the necessary changes, and after city and state inspections were made, we were given the "green light" by the authorities. (The changes we had to make to the building involved re- piping, adding a two inch water pipe for the big fire hoses under glass, connecting to the main water line, drilling through two to three inches of solid concrete to connect all of the fire alarms, and putting in emergency lights in the large hallways, and two staircases). We realize that the neighbors have some legitimate complaints, for which we greatly apologize. We, and our attorney, have discussed these with Narconon, and Narconon appears to us to be taking the appropriate measures to correct these. However, if you hear differently, please let us know. Our goal is to be a good neighbor, and it is our belief that Narconon is committed to this also. Sincerely, VAVf Gene W. Ross 617 Via Lido Soud Newport Beach, Ca. 92663 Phone: (949) 673-7677 NARCONON 1810 Oceanfont FJA 1808 Boardwalk North Facing Looking towards Newport pier. S S a- :a -a y- 0-1 ly's 2 -story )8 Oceanfont NARCONON 1810 W. Oceanfront 3- stories 3 -story staircase PPIMARY entrance NARCONON OFFICE (Door almost always opef Looks right into tenants bedroom #C NARCONON 1811 W. Balboa Blvd. 2 -story NARCONON KITCHEN 1808 Oceanfont n windows NARCONON 1808 Oceanfont South Facing North Facing Tenant entrance LIE Tenants interior bedroom windows E covered w/ 6" insullation F South wall (Interior) Tenant had to make cinderblock steps to exit apartment. G South wall (Exterior) Cinderblock steps for entering. 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT COUNCIL AGENDA No. Ss,2- � -ay -C¢ 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, rbumhamp-ci .newl)ort- 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. by: Robert Burnham City Attomey E �m 0' 0 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 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'). • :STJMMARY: 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 Homes; 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 261:066'151 -0023 471154.01 x0'_.'06/04 attached a list of possible amendments to the zoning code.Mfti bit "A") the City Council may want • to consider. DISCUSSION: A. FHAA Limits on Zonine 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); U.S 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. U.S. v. Southern Mgmt. Corp. (41e 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 treaimenf' or "intentional discrimination" against handicapped persons (including individuals with substance abuse Jtistones) 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 ' sparate 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. 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 In the House 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. `°rbhe 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.) 2611066751 -0027 772254.01 a02706l04 -2- - .i. r + 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 residents2].) 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 2 The court also rejected the argument that the dispersal requirement did not discriminate against handicapped persons, but ratherwas adopted in orderto 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.) 2611066751 -002', 472259 01 a0'_106105 '�' 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 pem3it 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 Corot 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 plaintiffs 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 plaintiffs 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 rrmit (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 4 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 run 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., Oxford 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. 2611066151-0023 4 =54.01 OM6104 -4- 0 • • • (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 FHAA. (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 FHAA. 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. (Id) 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 Albany (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'l.) 261 ;066751 -0023 47 ^5q 0i'010604 _�_ 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 Eve 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. (Id) 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 anyway 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 A McKermy v 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 § 3604(f)(3)03).) 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. • 261/066751 -0023 6 4 72254.01 ao2!06 /04 ` ° 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, US 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, f i. 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 261 ;066 -151 -0023 4]]2i401 a02.0t,04 -7- 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 propertys. 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 Ca1.3d 123, 134.) As such, with one exception which we will discuss below, 0 ' 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. 1611066751 4023 472254.01 a0-7'06iO4 _S_ 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 ServiCO 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 ResidentiaP' 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 6 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 unit 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- family residential" to "multi -unit residential." • These uses are distinguished from "Residential Care, Limited," and Residential Care, General' because they do not involve the provision of any services 261;066-51 -0023 -9- 47225401 a02'06iN 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 (9h Cmr. 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 261/066751 -0023 472254.01 a0l'06104 -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," & 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." (Zd., 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." (Zd.) The city claimed that the ordinance did serve a • B 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).) 26 ;:0eu;il -OG23 4r_2s 4n; ,02.06:cd 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. Presumably, 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 dratted, 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 -1 zone (and peihaps 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 & RECONMNDATION: 0 • Based on the foregoing, we recommend the City amend the definitions in the Zoning Ordinance in the manner provided in Appendix "A" attached. hi 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) 260066751 -0023 472 154 01 OV06104 -12- 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. '_61,066751 -002-, 4'.2_ -4.01 .02'06,05 -1 J- 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. 0 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.) 2. 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. 261,066751 -0023, 472254,01 a02. '06,04 -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) Existin : "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) Existin : "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. (fl Existing: "Two - Family Residential" means buildings containing two dwelling units located on a single lot. This classification includes mobilehome and factory built housing. ?61.066'51 -0023 1- 1`540142io604 _1 _ 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 unit 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 MTR Additional Regulations RESIDENTIAL (A),(B),(C) • Limited P P P P P Residential P — Residential Care, Limited P P P P P Single - family Residential P P P P P (D),(E),(M) Residential — — P Residential P P P • 2611066751 -0023 dM2 4.01 a02ro6.04 -16- • Proposed Amendment: R -A R -1 R -1.5 R -2 MFR Additional RESIDENTIAL (A) (g) (C) Limited P P P P Group Residential — - or CUP Residential Care, Limited P P P P P Residential CUP Single - family Residential P P P P P (D) (E) (M) Multi -Unit Residential P (D) Two = Family Residential P P P (D) • 4. Amend Section 20.10.010(H) in the following manner: (a) Existing: 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 farming 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. 261!D66751.00' nzr- of 10::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 -1 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. • 2Gli066751 -0023 4 ?22 3.01 02206:04 -I B- • n as cQ c� CD O r O CD N I I CW CD 0) U) R iii CL 0 0 0_ 0 3 2. c 3 N3 CO) ea Z c tr D chi 0 0 N w rn OD Soj O N w Years N w -p cn 0 0 0 0 0 0 ic m CL sv N N �D y r CD VMIIL 0 0 CD S _. MO 0 m M 0 r 0 rmlpL J • 0 • CCD CD M n Cr MI a O -• -h 3 00 C) ci Oo i -IL � o t� 0 0 CD CD 0 r3 r*MI .II 0 N � • V W Ma 0 0 0 0 c Cr N 26 N v C N � N to N O N O N rt N N w Number of Occupants Z i Cr M O 0 0 13 rF V Arn i� ) 0 r 0 rMOL r� DO < �D O 00 O U) �o O� �� .I w=r o� D� (D -- <0 m CL °n c� 0o 0 0 O .I .. CL f` o z ry 0 570 0 �h �O n O� cD p `< �D 0 i ma O MN (D 0. Cr X CL MN v O N O V1 W C) Cn 0 cil 0 CfT 00 � � N N W W O C l O Cr O CT O CT I I 3 ] "I n I III I ic Q .O -� v 0 n g� — � O Aop 0 O� 0 CD O m look • 1A` 1p A f, t r 1 1� w' :r i :j ky•1 idn c '! r� r. G" r AOMM am. -AWL . Am� 144, Fit 1 11 14F NA Cq 0 ol tnil V7o t. i .1 4 - • I . T., • O i A\ 0 I r Y r* 1 c: ti A f- P 1 --awwo .ice. 4 a�1A_ 1 1� .y . P 1 --awwo .ice. 4 a�1A_ 1 1� 74 ft-ft a - �ftft Me -am CAW. Now- /Mi r • ,, _ L'. - .:. . 'I= -.V;mot � oaf Ai or Ki "i �i "fir• -�'r: � � • . . s.r: :. . - � Ir ._ 7jj •rrc.� i:•. ter:. ': 'i y , I .-;, • � says -„ - - � . } i I : 's -Z-:- g.' !; I .14: - w BQ'I n..r • -Z-:- g.' !; I .14: - w BQ'I n..r drAt \�� }� � \� Irm? go 4 i 17771-117 11 1 41 N4 1 •R' �a 3• low ti . j' y ® == - "- MEMORANDUM DELIVERED BY l -LV,ND & CERTIFIED MAIL on Fcb. �(i� Zed f Date:February 9,2004 To: City of Newport Beach Attention:T. Ridgeway,G.Adams,H. Bludau,P.Temple 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 neiahborhood /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. f �n� Lick 94'<d. r:r �ic� t 47f) c/ The following additional facilities are also known: 1811 West BalboaBlvd.(already occupied,operatine without proper permits or clearances) 1234 West Balboa Blvd. (application pending) 1510 West Balboa Blvd. (application pending) 1219 West Balboa(rent paid,occupancv 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 ESTABLISIIMENTS.The City has been to date deliberately remiss in fulfilling its responsibilities as defined per codes 20. 10.020 and 20.10,010,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 CONMILTNITY. We appreciate your attention,and expect that you will keep us informed. • WE, THE UNDERSIGNED, ARE RESIDENTS,BUSINESS OWNERS AND OTHERS IN SUPPORT OF CURTAILMENT OF DRUG/ALCHOHOL REHAB FACILITIES ON THE BALBOA PENNINSULA. Cc-cav co.-� L6 2-z,q t3'c)cle-c'cA-lrc7-1lt Feb 09 04 11:05p f, Feb 03 04 03:45p • • Ron & Trana I BIB 768 5660 WE, THE UNDERSIGNED, ARE RESIDENTS,BUSINESS OWNERS AND OTHERS IN SUPPORT OF CURTAILMENT OF DRUG/ALCHOHOL REHAB FACILITIES ON THE BALBOA PENNINSULA - Z"5 Zug Gl-1 S (y -1 tJ- p. 2 p.3 Poe 0 • • JAMES C. PERSON, JR. Attorney at Law 507 29th Street - Suite A Newport Beach. California 92663 February 5, 2'004 :. The Honorable -od Ridaewav, Mavor and Members of the City Council 7:T.v of Newport Beach 330!1 NewooYt Blvd. Newport Beach, CA 9 -'663 Telephone 19491673 -9201 Facsimile (939) 673 -0773 - EMail thejcpupacbell.net 'I - EIYED AFTER AGENDA 1 Re: Stuav SeSS_on Item "Group Living Facrlltres" - Sober Liv: r•g By The Sea Dear Mavor Ridgeway and members of *h-- Cozy Council: This office represents Mr. and Mrs. Car_ Posen and t=heir wholly O'.aned corporation, Sober Li v- ng by the Sea, Inc., Whi CY, 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 inav no- make it back before the Study Session, T wanted to take a moment to efplain the operation of my clients as well as *_heir desire to be good citzsens of Newpor- 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 ho': se on 34 Street Jr. Newport Bead as 4 place where persons who i-a•.: e: perlencev drug and a_rohC --- p•roG• -ems coul•- Corte and 1'_ve after •settin'g "sober" du ---nj a trans- tionai time of the'_'_` lives. It was envisioned b_v Mr. Mosen, at -hat time, not as a possible business venuure but more ct a humanitarian thing and as a way to help these ind4viduals der their feet back on __he arou ^d, need for such =3Ci i_ -i es soon .^_ecame :.*lore' apparerl`_ wi-h t're Success`ul opera -ion_ of _h _rs= house and r-y 1990, r_ad established five such h ^.uses ope ~atir.; on the Balboa Per - nsula. Since that Time the operatinn ;as grown sign-�fi- can -'_y and now is, in fact, the largest tt:e Sate of Cali ferria. I have attache:- a full -"is-- of operations by Sober -_vlrg to. Lh -s letter to rul -_' evp•lalr the types O i3C_w_t3.eS a-td number C'f persons be -I efitred. The Honorable Tod Ridgeway, Mayor and Members of the City Council February 5, 2004 is 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 _n 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 cont'_nu -ng desire -c maintain such a relationship with the C-tv of Newport °.each. In addition co ;,roviding you information for your consider- ation, it is in the spirit of cooperation that this letter is being transmitted to you. pie The Honorable Tod Ridgeway, Mayor • and Members of the Citv Counci' February 5, 2004 :-age 3 It is my understandinc that Mr. Moser, and an associate or two w'I' be in attendance on Tues,aay ir: my absence, in ease there are any ques=ior.s concerning this oneratio`.. Thank you for your considerat'on of this matter. le i �trul_, you ,,AMES C. PERSOX CR.. jl-_p/cl • cc: Mr. Carl Moser. w /attachment Robert H. Burnnam, '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 vear 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 2811 • 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. 0 Pare 1 of 1 Main Identity • From: 'win fuller" <wfullerl @pacbell.net> To: < tridgeway @city.newportbeach.ca.us >; <paradigm @aol.com >; <don2webb @earth link. 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 Jeff Goldfarb's analysis relative to the FHAA and suggested amendments to our zoning Iaws.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 n U 2/10/2004 Catherine Martin Wolcott • Attorney at Law 245 Cajon Street Laguna Beach, CA 93651 (949)497 -1182 catherin ewo lcottO)hotm ail. corn • • February 9. 2004 The Honorable Todd Ridgeway Mayor, City of Newport Beach tridgewayCcity.ne-,vport- 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. 'Khen 1810 began to be used as a sober living facility ten years ago, neighborhood concerns centered solely on adequate internal 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 crew. 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 18 10, 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 (9th 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 C 303.) I believe this to have been a publishing error, because every other time the denied permit is mentioned (and it is 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 305.) 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 11 -Li.) (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 Mentallv 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 FH_AA. In Gamble, the court analyzed the plaintiffs FHAA discrimination claim with a three -stake test. The court said that "[t]o 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 V. 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 by 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 (ED. 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 Fad 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 s ignificant 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 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 amryvhere 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 o could invite charges of discriminationfrom both handicapped and non - handie need 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 CLT, 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 12-1 1.) He indicates the CUP requirement could probably be upheld in R- I 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 -?, most notably parts of Vest Newport. The vast majority of the residents of the oceanfront homes in the 1 800 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 I5.,) 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 40 • Southern California Inc. City of Newport Beach Mayor Tod Ridgeway P.O. Box 1768 Newport Beach, CA 92658 -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 M all, President Office: (7 ) 782 -0471 Cell: (760) 668 -4617 • CC: Newport Beach City Council CC: Newport Beach City Attomey 1810 W. Ocean Front, Newport Beach, CA Phone: Phone (800) 876 -6378 Fax (949) 675 -4479 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 1 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 r NEWPORT BEACH CITY COUNCIL • 3300 NEWPORT BLVD. NEWPORT BEACH, CA 92660 DEAR CITY COUNCIL FEBRUARY 5,2G04 IN THE NEW ISSUE OF "PIER TO PIER" . THE NEWSLETTER OF THE:CENTRAL NEWP.ORTBEACH 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"DjHAVE 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. • PHONE ( 949 ) 673 - 5842 SINCERELY YOURS, JOHN W. MILLER "tom JOAN E. MILLER I232 WEST OCEAN FROMT NEWPORT BEACH . CA 9266I SU, vti, 4-0 C�� ti� Feb l0, Zff,0V • SUMMARY: COMMENTS AND POSITION OF RESIDENTS OF BALBOA PENNINSULA RE. DRUG DETOX /REHAB CENTERS - Presented by Denys Oberman on behalf of Balboa Resident s,Business Owners,Schools At Study Session and City Council: February 10,2004 1. 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. 2. 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. �11 P t�Pcyn} lint �j Gts� 3. As a result of the ty's action/ inaction to date, there is now a proliferation of Drug /Alchohol R ehab and Detox Centers on the Balboa Penninsula,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: s • I. Subject 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 ordinanes 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. LL� J �_ E January 10, 2004 To Those Concerned: I am a retired Christian minister. My wife and I live in Sunshine Summit a community where Narconon has recently established a new facility. Sunshine Summit is a small, somewhat isolated community in coral 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. Tire home we purchased some twelve years ago and live in here is located virtually neat 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 personally 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 bad "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 Narconon, 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 neat door the Narconon, 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 solving problems and needs in the community. My wife and I have attended activities and meetings at Narcomm in the many mouths they have now been in operation. We have listened to the testimonies of attendees reporting the progress they have made in the program and secn the progress they have made toward complete rehabilitation. As far as we are concerned the fruits of the operation of the Narcomm 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 flue 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 Poriume 35075 Hwy. 79 Warner Springs, • Sunshine Summit, CA