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HomeMy WebLinkAbout15 - Zoning Amendment & Group Living UsesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 15 August 10, 2004 TO: MAYOR & MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney; 644 -3131, rburnham (Scity.newport- beach.ca. us SUBJECT: Zoning Amendment/Group Living Uses ISSUE: Should the City Council adopt amendments to the Zoning Code (Exhibit A) pertaining to group living uses that are intended to preserve the character of residential neighborhoods in a manner consistent with State and Federal statutory/decisional law? RECOMMENDATION: Staff recommends the City Council introduce the proposed amendments to the Zoning Code that are attached as Exhibit A and pass the ordinance for second reading on August 24, 2004. BACKGROUND: On February 24, 2004, the City Council, after conducting two study sessions on the topic, initiated amendments to the Zoning Code pertaining to group living uses in residential districts. The Planning Commission conducted noticed public hearings on the proposed amendments on May 20, 2004 and June 17, 2004. On June 17, 2004, the Planning Commission (4 ayes, 2 nays and one absent) voted to approve an ordinance similar to Exhibit A. On July 13, 2004, the City Council conducted a noticed public hearing on the proposed amendments. The City Council introduced the proposed amendments with one modification pertaining to the findings for a Federal Exception Permit. On July 27, 2004, the City Council again consider the proposed amendments, took public testimony and continued the matter to August 10, 2004 to allow staff and special counsel additional time to research and respond to legal issues raised during public testimony and in correspondence. DISCUSSION: The proposed ordinance (Exhibit A) continues to allow group living uses with six or fewer persons deemed to be "handicapped" under the FHAA (handicapped persons) in all residential zones, to require a Federal Exception Permit for group living uses with seven or more handicapped persons in the R -1.5, R -2 and MFR zones and to prohibit group living uses with seven or more "handicapped" persons in the R -1 zones and the equivalent areas in PC and PRD districts. The proposed ordinance differs from the version introduced by the City Council on July 13, 2004 in the following respects: 1 1. We have added legislative findings that clarify the purpose and intent of the ordinance. 2. We have modified the definition of "single housekeeping unit' to eliminate "transiency" as a criteria except in the case of group living uses in R -1 and R -A zones 3. We have incorporated standard conditions — similar to those imposed on other transient residential uses by our "Short Term Lodging Permit' ordinance - that would be applicable to all Federal Exception Permits and would address the concerns expressed by residents who live adjacent to some group living uses. Staff and special counsel believe the proposed ordinance gives the City the means to protect the character of residential areas by treating transient group living uses in the same manner as we treat short term lodgers — a similar type of land use characterized by frequent turn over of occupants. We have attached opinions from Dr. Michael Gales (Exhibit B), a specialist in the field of chemical dependency treatment, to the effect that "a residential capacity of six or fewer constitutes a sufficient number of participants to achieve the stated goals of a sober living home." ENVIRONMENTAL: The proposed ordinance is exempt from CEQA pursuant to Section 15305 of the CEQA Guidelines (Minor Alterations in Land Use Limitations). Submitted by: Burnham, City Attorney 11 • 0 DRAFT ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS 20.03.030, 20.05.030, 20.05.040, 20.10.010 20.10.020 and Chapter 20.91 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ALL CATEGORIES OF GROUP LIVING WHEREAS, the City Council finds that the City's Zoning Code provisions regulating all group living regulations should be amended to ensure conformity with the Federal Fair Housinq Act Amendments ( "FHAA," 42 USC 3601) and various provisions of State law, including without limitation the requirement that the City receive evaluate and approve applications to reasonably accommodate uses protected by State and Federal law: and WHEREAS, the City Council finds that the fundamental precept of the City's Zoning Code provisions relative to residential zones is that individual dwelling units are intended for the occupancy and use of "families" (now defined as "Single Housekeeping Units ") and that persons who are not living together as a Single Housekeeping Unit should be prohibited from residing in the same dwelling unit in all the City's residential zones; and WHEREAS the City has made an exception to the requirement that dwelling units in residential districts be occupied only by a Single Housekeeping Unit by defining group residential uses for six or fewer persons with physical or mental impairments which substantially limit one or more of that persons major life activities as a Single Housekeepinq Unit; and WHEREAS, the City has obtained the opinion of Dr. Michael Gales a medical doctor specializing in recovery from chemical dependency, that the recovery of persons suffering from drug or alcohol dependency is properly accomplished in residential groups of between four and six persons, which, under the proposed code amendments can locate in any residential zone of the City without the need for any discretionary permits. WHEREAS the City finds that this ordinance complies with and implements the FHAA by establishing a reasonable accommodation process initiated by filing an application for a "Federal Exemption Permit" that is available to any person who desires to establish a residential facility serving 7 or more persons with physical or mental impairments which substantially limit one or more major life activities and WHEREAS the City Council finds that except for the provisions of this ordinance that permit or conditionally permit persons with physical or mental impairments which substantially limit one or more major life activities to live in residential districts as other than a Single Housekeepinq Unit the City does not desire to permit or conditionally DRAFT ORDINANCE NO. _ 0 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTIONS 20.03.030, 20.05.030, 20.05.040, 20.10.010 20.10.020 AND CHAPTER 20.91 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ALL CATEGORIES OF GROUP LIVING WHEREAS, the Citv Council finds that the City's Zoning Code provisions regulating all group living regulations should be amended to ensure conformity with the Federal Fair Housing Act Amendments ( "FHAA," 42 USC 4 3601) and various provisions of State law, including without limitation, the requirement that the City receive, evaluate and approve applications to reasonably accommodate uses protected by State and Federal law; and WHEREAS, the City Council finds that the fundamental precept of the City's Zoning Code provisions relative to residential zones is that individual dwelling units are intended for the occupancy and use of "families" (now defined as "Single Housekeeping Units ") and that persons who are not living together as a Single Housekeeping Unit should be prohibited from residing in the same dwelling unit in all the City's residential zones; and WHFRFA,R tha rite hac marls nn avrantinn to tha ranniramant That rlwallinn finite in nit substantialiv limit one or more of that persons maior lite activities as a Sinale Housekeeping Unit; and WHEREAS, the City has obtained the opinion of Dr. Michael Gales, a medical doctor specializing in recovery from chemical dependency, that the recovery of persons suffering from drug or alcohol dependency is properly accomplished in residential groups of between four and six persons, which, under the proposed code amendments, can locate in any residential zone of the City without the need for any discretionary permits. WHEREAS, the City finds that this ordinance complies with, and implements, the FHAA by establishing a reasonable accommodation process, initiated by filing an application for a "Federal Exemption Permit ", that is available to any person who desires to establish a residential facility serving 7 or more persons with physical or mental impairments which substantially limit one or more major life activities; and WHEREAS, the City Council finds that except for the provisions of this ordinance that permit or conditionally permit persons with physical or mental impairments which substantially limit one or more major life activities to live in residential districts as other than a Single Housekeepinq Unit, the City does not desire to permit or conditionally permit other orouns of persons not livina together as a Sinale Housekeeoino Unit to WHEREAS, during the public hearings preceding adoption of this ordinance substantial . evidence has been presented that confirms that there is a high degree of transiency among group home residents, that transiency (due to the failure of an occupant to comply with rules or the successful completion of a program) is an inevitable feature of certain group living arrangement that group home residents often come from outside of Newport Beach with the intent to reside here for a very limited period of time and to leave Newport Beach upon completion of the program or treatment that caused them to become residents. WHEREAS, the City Council finds that persons who occupy dwelling units without the intent to reside long -term in the community have on average less incentive than persons who intend to make the community their permanent residence to refrain from engaging in conduct that adversely impacts neighbors and the qualitv of life within the neighborhood; and WHEREAS, the City Council has received extensive testimony during the public hearings preceding adoption of this ordinance and has received evidence on other occasions that dwelling units with short term or transient occupants when compared to occupants of dwellinq units who intend to permanently reside at that location generate more frequent complaints related to noise profanity, trash illegal parking and other conduct that would disturb a person of ordinary sensitivity and WHEREAS the City Council has adopted an ordinance (Chapter 5.95 of the Newport • Beach Municipal Code) that regulates the conduct of property owner and occupants of dwelling units that are occupied by short term lodgers to address the problems caused by this type of occupancy and finds that the nature of the use and occupancy defined as "Residential Care — General" has the same potential as short term lodging to adversely impact neighbors and the quality of life in neighborhoods; and WHEREAS the City Council finds that based on testimony received durinq the public hearings preceding adoption of this ordinance that individual group residential facilities within 900 feet of one another have been used to provide services to the occupants of other similar facilities creating a "campus" effect resulting in the short term intensification of uses in the neighborhood that is now serving the occupants of the other dwelling units and resulting in adverse impacts related to noise traffic and parking. and WHEREAS, OR light E)f the FaffiF HGUS;Rg AGt AFR8RdR;9Rt6, 42 U.S.Q. § 3601, E4 . NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: 2 SECTION 1. The following definitions contained in Section 20.03.030 of the Newport Beach Municipal Code are hereby amended to read as follows: • "Campus" means three or more buildings in a residential zone within a 300 yard radius of one another that are used together for a common purpose where one or more of the buildings provides a service for the occupants of all the buildings such as when one building serves as a kitchen /food service area for the occupants of the other buildings. "Dwelling, multifamily' means a building containing three or more dwelling units, each of which is for occupancy by one family. "Dwelling, single - family" means a building containing one dwelling unit for occupancy by one family. "Dwelling, two family" means a building containing two dwelling units, each of which is for occupancy by a one family. "Family" means one or more persons living together as a Single Housekeeping Unit. The term "Family' shall include "residential care, limited'_ facilities for six or fewer mentally disabled, mentally disordered or otherwise handicapped persons, but no other living group not living together as a Ssingle H -housekeeping Uunit. "Single Housekeeping Unit" means the functional equivalent of a traditional family, whose members are an Wit, interactive group of persons jointly occupying a single dwelling unit, including the joint use of common areas and sharing household • activities and responsibilities such as meals, chores, and expenses. For purposes of the R -A and R -1 zones, a Single Housekeeping Unit's members shall also be a non - transient group. SECTION 2. The following definitions contained in Section 20.05.030 of the Newport Beach Municipal Code are hereby amended to read in their entirety as follows: "Day -Care, Limited" means non - residential, non - medical care and supervision of twelve (12) or fewer persons on a less than twenty -four hour basis. This classification includes, but is not limited to nursery schools, preschools, and day -care centers for children (large and small family day -care homes) and adults. "Group residential" means shared living quarters 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, Section 20.05.050(EE)(4)). "Residential Care - Limited" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for six or fewer persons with physical or mental impairments which substantially limit one or more of such person's major life activities. This classification also includes, but is not limited to group homes, sober living • environments, recovery facilities, and establishments providing non - medical care for persons in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. 3 "Residential Care, General" means shared living quarters without separate kitchen or • bathroom facilities for each room or unit for seven or more persons with physical or mental impairments which substantially limit one or more of such person's 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. "Single- Family Residential" means buildings containing one dwelling unit located on a single lot for occupancy by one family. This classification includes mobile home and factory built housing. "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 mobile home and factory built housing. SECTION 3. The definition of "Residential Care, General" contained in Section 20.05.040 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: "Residential Care, General" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for seven or more persons with physical or mental impairments which substantially limit one or more of such person's 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. SECTION 4. Subsection H of Section 20.10.010 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: H. Provide public services and facilities to accommodate planned population and densities. The specific residential districts and their purposes are as follows: Residential - Agricultural (R -A) District. Provides areas for single - family residential and light 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 limiting occupancy to one family. Restricted Two Family Residential (R -1.5) District. Provides areas for single - family and two family residential land uses with the total gross floor area of all buildings limited to a maximum floor area ratio of 1.5 times the buildable area. • Two Family Residential (R -2) District. Provides areas for single - family and two family residential land uses. n 1 Multifamily Residential (MFR) District. Provides areas for single - family, two - family, and multiple family residential land uses. • SECTION 5. Section 20.10.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.10.020 Residential Districts: Land Use Regulations. The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in residential districts, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in residential districts. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "PD /U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P /UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. The letters RA designates use classifications for which a Federal Exception Permit must first be obtained pursuant to Chapter 20.91. Letters in parentheses in the "Additional Regulations' column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. • 'Residential Districts: Land Use Regulations 'P = Permitted "UP = Use permit PD /U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) FEP = Federal Exception Permit = Not Permitted IR -A R -1 R -1.5 ` R -2 ;MFR (Additional (Regulation I RESIDENTIAL I- —F (A), (B). (C) Day -Care, Limited Fp--FP FP7—FP— FP Group Residential - -- ��— Residential Care, Limited IP ���� 'Residential Care, General ••• - -- FEP rFEP (FEP I {Single- family Residential P II —IP FP l(D), (E) (M) Multifamily Residential�j(D) ;Two - Family Residential ; - - - - -- IP FP PUBLIC AND SEMI - PUBLIC (A), (B), (C) j meteries - -- jL -1 t ubs and Lodges - -� ;L -2 �— IL -2 L -2 L -2 _ _ 4Convalescent Facilities - -- SUP UP UP — ;UP Day -Care, General ! - -- iUP UP 'UP iUP; 'Government Offices - -- jUP —�. UP IUDIUP i Hospitals..... ...... L- ._... ...IMP.. .... —, iUP . iUP UP.... j Park and Recreation'jUP ;Facilities UP UP i UP UP I jPublic Safety Facilities FLIP SUP jUP 1UP UP ;Religious Assembly ;UP jUP [UP UP [Up ;Schools, Public and Private !UP ;UP U—UP Ur P :Utilities, Major UP UP ;UP `UP Ur P Utilities, Minor - — P — — P -----p-- P -- !. i. F I COMMERCIAL USES I —I Ii!(A), (B), (C) ;Horticulture, Limited �! - -- i - - -, 'Nurseries j ; - -- Whicle /Equipment Sales and rvices - Commercial Parking IFacility . 1 -3 1,33 L -3 3L -3 j — ;Visitor Accommodations i -Bed and Breakfast Inns ! -- -- UP :up '(F) -SRO Residential Hotels .. — --- -- - - -- ;UP i .AGRICULTURAL AND —j - -�— — ; (-- -i(A), (B), (C) !EXTRACTIVE USES I !Animal husbandry PD/ r-- :(G) ;Crop Production — — F —I - -- F — - -! i Mining and Processing L-4 14 ;L-4 14 IL -4 (H) i .ACCESSORY USES 1 ' :(A), (B), (C) .Accessory Structures and`jP /U PP /� U — P /U�P —iP / U �`P /UP i(I) ;Uses PORARY USES i j j i i(A), (B), (C) ;Circuses and Carnivals !P iP �i P I� P — iF i(K) I cial Filming, Limited iP 3ersonal Property Sales IP -leliports, Temporary 1 -5 Estate Offices, „ 1-5 emporary P iP P iP iP -- IL-5 -5 �L -5 LL Residential Districts: Additional Land Use Regulations (B) L -1: Twenty (20) acres minimum. L -2: Limited to yacht clubs, use permit required. L -3: Public or no fee private lots for automobiles may be permitted in any residential district adjacent to any commercial or industrial district subject to the securing of a use permit in each case. L -4: See Chapter 20.81, Oil Wells. L -5: Subject to the approval of the Planning Director. (A): See Section 20.60.025, Relocatable Buildings. (B): See Section 20.60.015, Temporary Structures and Uses. (C): See Section 20.60.050, Outdoor Lighting. (D): With the exception of uses in the R -1 Zone, any dwelling unit otherwise permitted by this Code may be used for short term lodging purposes as defined in Chapter 5.95 of the Municipal Code subject to the securing of: 1. A business license pursuant to Chapter 5.04 of the Municipal Code. 2. A transient occupancy registration certificate pursuant to Section 3.16.060 of the Municipal Code. 3. A short term lodging permit pursuant to Chapter 5.95 of the Municipal Code. (E): See Chapter 20.85, Accessory Dwelling Units. (F): See Section 20.60.110, Bed and Breakfast Inns. (G): Keeping of Animals in the R -A District. The following regulations shall apply to the keeping of animals in the R -A District: 1. Large Animals. The keeping of large animals (as defined in Section 20.03.030) shall be subject to the following regulations: a. Horses. One horse may be kept for each ten thousand (10,000) square feet of lot area, up to a maximum of three horses; provided, the horse or horses are kept for recreational purposes only. The keeping of four or more horses for recreational uses shall require a use permit issued by the Planning Director. The keeping of horses for commercial purposes shall require a use permit issued by the Planning Commission. b. Other Large Animals. Other large animals, including goats, sheep, pigs and cows, may be kept on lots of fifteen thousand (15,000) square feet or more and the number shall not exceed two adult animals of any one species. C. Total Number Permitted. The total number of large animals shall not exceed six. Offspring are exempt until such time as they are weaned. 2. Domestic and Exotic Animals. The number of domestic and exotic animals (as defined in Section 20.03.030) shall not exceed six. Offspring are exempt up to the age of three months. The keeping of four or more dogs over the age of three months shall require a kennel license pursuant to Section 7.04.090 of the Municipal Code. The keeping of wild animals shall require a permit pursuant to Chapter 7.08 of the Municipal Code. 3. Small Animals. The number of small animals, other than domestic and • exotic animals (as defined in Section 20.03.030), shall not exceed six. Offspring are exempt up to the age of three months. 4. Control. a. Domestic Animals. No such animals, except for cats, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure or otherwise under the control of the owner of the property. b. Other Animals. No animal, other than domestic animals, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure. (H): See Chapter 20.81, Oil Wells. (1): See Section 20.60.100, Home Occupations in Residential Districts. (J): See Section 20.60.055, Heliports and Helistops. (K): Special event permit required, see Chapter 5.10 of the Municipal Code. (L): See Section 20.60.120, Personal Property Sales in Residential Districts. (M): See Section 20.60.125, Design Standards for Mobile Homes on Individual Lots. SECTION 6. Section 20.91.015 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.015 Use Permit, Variance, or Federal Exception Permit Requisite to Other Permits. No building permit or certificate of occupancy shall be issued in any case where a use permit, variance, or Federal Exception Permit is required by the terms of this code unless and until such use permit, variance or Federal Exception Permit has been granted by the Planning Director or the Planning Commission or by the affirmative vote of the City Council on appeal or review and then only in accordance with the terms and conditions of the use permit, variance or Federal Exception Permit granted. SECTION 7. Section 20.91.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.020 Application for Use Permit, Variance, or Federal Exception Permit. An application for a use permit, variance, or Federal Exception Permit shall be filed in a manner consistent with the requirements contained in Chapter 20.90, Application Filing and Fees. SECTION 8. Section 20.91.025 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.025 Duties of the Planning Director and the Planning Commission. A. Authority. The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits, variances and Federal Exception Permits, unless the authority for an administrative decision on a use permit is specifically assigned to the Planning Director in the individual chapters of this code. 1 The Planning Commission shall have the authority to review an application for a Federal i Exception. The City Council shall have final decision - making authority on the applications for use permits, variances and Federal Exception Permits filed concurrently with amendments to the general plan, zoning code, or a planned community development plan or with a development agreement. B. Rendering of Decision. After the conclusion of the hearing on any application for a use permit, variance or Federal Exception Permit, the Planning Commission shall render a decision within thirty -five (35) days. Where the authority for an administrative decision on a use permit is assigned to the Planning Director, the Planning Director shall render a decision within fourteen (14) days of the acceptance of a completed application. C. Report to the Planning Commission. Upon rendering a decision on a use permit, the Planning Director shall report to the Planning Commission at the next regular meeting or within fourteen (14) days of the decision, whichever is appropriate. D. Notice of Decision. Upon the rendering of a decision on a use permit by the Planning Director, a notice of the decision shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site. SECTION 9. Section 20.91.030 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.030 Notice and Public Hearing. A. Public Hearings. The Planning Commission shall hold a public hearing on an application for a use permit, variance, or Federal Exception Permit . Public hearings are not required for applications where the authority for an administrative decision on a use permit is assigned to the Planning Director. B. Timing of Hearings. A public hearing shall be held on all use permit, variance, and Federal Exception Permit applications, except as otherwise provided in this chapter, within sixty (60) days after the acceptance of a completed application. C. Required Notice. Notice of a public hearing or an administrative decision shall be given as follows: 1. Mailed or Delivered Notice. a. Residential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. • Exception Permit regardless of whether this code specifically provides for such a Federal Exception Permit if, and to the extent, required by state or federal law. b. Nonresidential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet, excluding intervening rights -of -way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. 2. Posted Notice. Notice shall be posted in not less than two conspicuous places on or close to the property at least ten days prior to the hearing or the administrative decision. 3. Published Notice. Notice shall be published in at least one newspaper of general circulation within the City, at least ten days prior to the hearing. D. Contents of Notice. The notice of public hearing or of the decision of the Planning Director shall contain: 1. A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing or of the purpose of the administrative decision; 0 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard at the planning hearing and an explanation of their rights of appeal in the case of an administrative decision. E. Continuance. Upon the date set for a public hearing before the Planning Commission, the Planning Commission may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. SECTION 10. Section 20.91.035 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.035 Required Findings. The Planning Commission or the Planning Director, as the case may be, shall approve or conditionally approve an application for a use permit, variance, or Federal Exception Permit if, on the basis of the application, plans, materials, and testimony submitted, the Planning Commission or the Planning Director finds: A. For Use Permits. 1. That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located; 10 2. That the proposed location of the use permit and the proposed conditions under which it would be operated or maintained will be consistent with the general plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city; 3. That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. B. For Variances. 1. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification; 2. The granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant; 3. The granting of the application is consistent with the purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district; 4. The granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. C. For Federal Exception PermitS2. 1. The Federal Exception Permit sought is handicapped - related. 2. The applicant has demonstrated that the living group residing in the Dwelling functions as a Single Housekeeping Unit. as members. Fer the��as 9f Federal €xcepti^^ Permits ; athe, R�. � .:, --ot -o --than 2 A "Federal Exception Permit' is the name of the permit and application process necessary to obtain a "reasonable accommodation" as that term is used in the Federal Fair Housing Act Amendments (FHAA) and the case law implementing the FHAA. The application for a Federal Exception Permit shall be approved unless the evidence in the administrative record establishes one of the findings for denial. Federal Exemption Permits are subiect to the enforcement provision contained in Chapter 20 -96. 11 thG R_1 7nnn a I ^_L of fFARs -i AGey shall mean the hnu __held Aans .. t Ghange mefe than 5900 of its rnernbem in aRY: given, aleAd r year. 3. The Federal Exception Permit neither requires a fundamental alteration in the nature of a program affected by the Federal Exception Permit nor imposes an undue financial or administrative burden on the City which creates an undue hardship on the City. To the extent authorized by law, the factors the _Planning Commission, or the City Council on review or appeal may consider the following in deciding whether to grant a Federal Exception Permit include, but are not necessarily limited to: (i) whether vehicular traffic congestion in the neighborhood would be increased to an extent that would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; (ii) whether the nature of vehicular traffic, such as the frequency or duration of trips by commercial vehicles, would be altered to a such an extent that it would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; or (iii) whether development or use standards established in the Newport • Beach Municipal Code and that are applicable to other residential uses in the neighborhood would be violated; or 0 (iv) whether a Campus would be established in a residential zone if the Federal Exception Permit were granted; SECTION 11. Section 20.91.040 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.040 Conditions of Approval. The Planning Commission or the Planning Director, as the case may be, may impose such conditions in connection with the granting of a use permit, variance, or Federal Exception Permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. Such conditions may include requirements for off - street parking facilities as determined in each case. The following conditions shall be imoosed upon the issuance of any Federal Exemption Permit: 1. The permittee shall limit overnight,-occupancy of the dwelling units (s) to no more than the number of occupants permitted by the provisions of Title 15 of the Newport Beach Municipal Code. 2. The permittee shall use best efforts to insure that the occupants do not create unreasonable noise or disturbances, engage in disorderly conduct, or violate provisions of this Code or 12 any law pertaining to noise, disorderly conduct, the consumption of alcohol, or the use of illegal drugs. 0 3. The permittee shall, upon notification that occupants and/or quests have created unreasonable noise or disturbances, engaged pertaining to noise, disorderly conduct, the consumption of alcohol or the use of illegal drugs, promptly use best efforts to prevent a recurrence of such conduct. 4. The permittee shall use best efforts to insure compliance with all the provisions of Title 6 of the Municipal Code (garbage, refuse and cuttings). 5. The permittee shall post, in a conspicuous place within the dwelling. a copy of this permit and /or the operational rules specified in this Section. SECTION 12. Section 20.91.045 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.045 Effective Date. Use permits, variances, and Federal Exception Permits shall • not become effective for fourteen (14) days after being granted, and in the event an appeal is filed or if the Planning Commission or the City Council shall exercise its right to review any such decision under the provisions of Chapter 20.95, the permit shall not become effective unless and until a decision granting the use permit, variance or Federal Exception Permit is made by the Planning Commission or the City Council. SECTION 13. Section 20.91.050 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C. relating to Federal Exception Permits. 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation. A. Expiration. Any use permit, variance, or Federal Exception Permit granted in accordance with the terms of this code shall expire within twenty -four (24) months from the effective date of approval or at an alternative time specified as a condition of approval unless: 1. A grading permit has been issued and grading has . been substantially completed; or 13 0 • 11 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. In cases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit. B. Time Extension. The Planning Director may grant a time extension for a use permit, variance, or Federal Exception Permit for a period or periods not to exceed three years. An application for a time extension shall be made in writing to the Planning Director no less than thirty (30) days or more than ninety (90) days prior to the expiration date. C. Violation of Terms. Any use permit, variance, or Federal Exception Permit granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such use permit, variance or Federal Exception Permit are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A use permit, variance, or Federal Exception Permit shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96, Enforcement. SECTION 14. Section 20.91.055 of the Newport Beach Municipal Code is hereby amended relating to Federal Exception Permits. 20.91.055 Amendments and New Applications. A. Amendments. A request for changes in conditions of approval of a use permit, variance, or Federal Exception Permit or a change to plans that would affect a condition of approval shall be treated as a new application. The Planning Director may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or additions to the plan or the conditions of approval, and are consistent with the intent of the original approval. B. New Applications. If an application for a use permit, variance, or Federal Exception Permit is disapproved, no 14 new application for the same, or substantially the same, use permit, variance or Federal Exception Permit shall be filed • within one year of the date of denial of the initial application unless the denial is made without prejudice. SECTION 15. Severability . If any provision or clause of this Chapter or the application thereof is held unconstitutional or otherwise invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions, clauses or applications of this Chapter which can be implemented without the invalid provision, clause or application, it being hereby expressly hereby declared that this ordinance, and each section, subsection, sentence, clause, and phrase hereof would have been prepared, proposed, approved, adopted, and /or ratified irrespective of the fact that anL one or more sections, subsections, sentences, clauses, and /or phrases be declared invalid or unconstitutional. SECTION 16: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. SECTION 17: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , 2004, and adopted on . the _ day of 2004, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS ut •: ATTEST: 15 L] • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT TO: MAYOR & MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney; 644 -3131, - rbu rnham(a)city, newport- beach.ca. us SUBJECT: Zoning Amendment/Recovery Facilities CC Yri::[S _!ai..____._._�__. Agenda Item No. 4 July 27, 2004 ISSUE: Should the City Council adopt amendments to the Zoning Code (Exhibit A) pertaining to recovery facilities that are intended to preserve the character of residential neighborhoods in a manner consistent with State and Federal statutory/decisional law? RECOMMENDATION: Staff recommends the City Council adopt the proposed amendments to the Zoning Code that are attached as Exhibit A. BACKGROUND: On February 24, 2004, the City Council, after conducting two study sessions on the topic, initiated amendments to the Zoning Code "pertaining to recovery • facilities in residential districts." The Planning Commission conducted noticed public hearings on the proposed amendments on May 20, 2004 and June 17, 2004. On June 17, 2004, the Planning Commission (4 ayes, 2 nays and one absent) voted to approve an ordinance identical to Exhibit A with the exception of the modification discussed below. On July 13, 2004, the City Council conducted a noticed public hearing on the proposed amendments. The City Council introduced the proposed amendments with one modification pertaining to the findings for a Federal Exception Permit and that modification is reflected in Exhibit A. We have attached a copy of an opinion from Dr. Michael Gales (Exhibit B), a specialist in the field of chemical dependency treatment, "a residential capacity of six or fewer constitutes a sufficient number of participants to achieve the stated goals of a sober living home." This opinion provides a factual basis for the proposed amendments. ENVIRONMENTAL: The proposed ordinance is exempt from CEQA pursuant to Section 15305 of the CEQA Guidelines (Minor Alterations in Land Use Limitations). Submito6d by: • /Robert Burnha ,, City Attorney DRAFT ORDINANCE NO. _ • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS 20.03.030, 20.05.030, 20.05.040, 20.10.010 20.10.020 and Chapter 20.91 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ALL CATEGORIES OF GROUP LIVING WHEREAS, the City has adopted regulations on different types of group living arrangements at various times throughout the City's history; and WHEREAS, the existing regulations on group living are confusing and in need of refinement; and WHEREAS, in light of the Fair Housing Act Amendments, 42 U.S.C. § 3601, et seq. (the "Act "), the City desires to codify its process for providing Federal Exception Permits when appropriate under the Act; NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: SECTION 1. The following definitions contained in Section 20.03.030 of the Newport • Beach Municipal Code are hereby amended to read as follows: "Campus" means three or more buildings in a residential zone within a 300 yard radius of one another that are used together for a common purpose where one or more of the buildings provides a service for the occupants of all the buildings such as when one building serves as a kitchen/food service area for the occupants of the other buildings. "Dwelling, multifamily" means a building containing three or more dwelling units, each of which is for occupancy by one family. "Dwelling, single - family" means a building containing one dwelling unit for occupancy by one family. "Dwelling, two family" means a building containing two dwelling units, each of which is for occupancy by a one family. "Family" means one or more persons living as a Single Housekeeping Unit. The term "Family" shall include residential care, limited facilities for six or fewer mentally disabled, mentally • 2611066751 -0059 512369.01 a07/21104.07/B9/04 EXHIBIT • disordered or otherwise handicapped persons, but no other living group not living together as a single housekeeping unit. "Single Housekeeping Unit" means the functional equivalent of a traditional family, whose members are a non - transient, interactive group of persons jointly occupying a single dwelling unit, including the joint use of common areas and sharing household activities and responsibilities such as meals, chores, and expenses. SECTION 2. The following definitions contained in Section 20.05.030 of the Newport Beach Municipal Code are hereby amended to read in their entirety as follows: "Day -Care, Limited" means non - residential, non - medical care and supervision of twelve (12) or fewer persons on a less than twenty -four hour basis. This classification includes, but is not limited to nursery schools, preschools, and day -care centers for children (large and small family day -care homes) and adults. "Group residential" means shared living quarters 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, Section 20.05.050(EE)(4)). "Residential Care- Limited" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for six or fewer persons with physical or mental impairments which substantially limit one or more of such person's major life activities. This classification also includes, but is not limited to group homes, sober living environments, recovery facilities, and establishments providing non - medical care for persons in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. "Residential Care, General" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for seven or more persons with physical or mental impairments which substantially limit one or more of such person's 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. 2611066751 -00.59 512369.01 a ! 1 /Q400;� -2- "Single- Family Residential" means buildings containing one • dwelling unit located on a single lot for occupancy by one family. This classification includes mobile home and factory built housing. "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 mobile home and factory built housing. SECTION 3. The definition of "Residential Care, General" contained in Section 20.05.040 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: "Residential Care, General" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for seven or more persons with physical or mental impairments which substantially limit one or more of such person's 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. SECTION 4. Subsection Hof Section 20.10.010 of the Newport Beach Municipal Code • is hereby amended to read in its entirety as follows: H. Provide public services and facilities to accommodate planned population and densities. The specific residential districts and their purposes are as follows: Residential - Agricultural (R -A) District. Provides areas for single - family residential and light 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 limiting occupancy to one family. Restricted Two Family Residential (R -1.5) District. Provides areas for single - family and two family residential land uses with the total gross floor area of all buildings limited to a maximum floor area ratio of 1.5 times the buildable area. Two Family Residential (R -2) District. Provides areas for single - family and two family residential land uses. • 2611066751 -OD59 512369.01 0 2 / -3- • Multifamily Residential (MFR) District. Provides areas for single - family, two - family, and multiple family residential land uses. SECTION 5. Section 20.10.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.10.020 Residential Districts: Land Use Regulations. The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in residential districts, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in residential districts. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "PD/U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P(UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. The letters RA designates use classifications for which a Federal Exception Permit must first be obtained pursuant to Chapter 20.91. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under • the heading. Residential Districts: Land Use Regulations �P = Permitted UP = Use permit j PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) FEP = Federal Exception Permit !` - =Not Permitted -A MFR R -2 Additional j I fR l— ___Regulation s RESIDENTI _ — - .1 ._ '�_ (A), (B), (C) i Day -Care, Limited Group Residential _ Residential Care, Limited i P P 1 F= P P Residenflal Care, General _�� — `FEP FEP FEP - -,; Single- family Residential _j[�C iC�� j�P ;LIB), (E_:) (M) Multifamily Residential iL- 1C__ F (D) Afto-Farnil Residential _ E=` E __ I1p: =C iI I (D) 261/066751 -0059 512369.01 AOaL/D4_e07/89;04 -4- L PUBLIC AND S P-1-- 11Cemeteries L L ,jClubs and Lodges - L-2 1K-::� ;Convalescent Facilities i[- -E E: I Day-Care, General lGovernment Offices J, F! EuP ---j F E: L Pazk and Recreation Facilities P 'Pk F-- Ett. uP--- I P I EuP:::--= lReligious Assembly jFup Eup::!---jff 13P ISchools, Public and Private lUtilities, Major__ IlUtilities, Minor K-i (F- F JCOMMERCIAL USES (E=1F----][7-1,F-[- ___ -1( J L�q, A (C) lHorticulture, Limited Vebicle /Equipment Sales and I I Services 1��� ��_ —3 -Commercial Pazking Facility C��L -3� L- E7 =i Visitor Accommodations IF -Bed and Breakfast Inns L-SKO Residential Hotels. F--, F- AGRICTURAL AND EXTRAUCTLIVE USES Animal husbandry PD/ II(A), (B), (C) Crop Production Mining and Processing LA I IL4�j[L L I LA '[ (H) ACCESSORY ES (B), (C-) ccessory Structures and Uses jFpMP__IkA:T=--JPp= WD.- TEMPORARY U and Carnivals J(K) qw 2611066751-0059 512369.01 07/21/2� -5- unercial Filming, Limited P LP.--I ersonal Property Sales - ora L -5 orts, Temporary LL -5 I) P p ry Real Estate Offices, Tempo _ T: L -5� _ L -5 -IF = =S `� (fi) Residential Districts: Additional Land Use Regulations L -1: Twenty (20) acres minimum. L -2: Limited to yacht clubs, use permit required. L -3: Public or no fee private lots for automobiles may be permitted in any residential district adjacent to any commercial or industrial district subject to the securing of use permit in each case. L4: See Chapter 20.8 1, Oil Wells. L -5: Subject to the approval of the Planning Director. (A): See Section 20.60.025, Relocatable Buildings. (B): See Section 20.60.015, Temporary Structures and Uses. (C): See Section 20.60.050, Outdoor Lighting. (D): With the exception of uses in the R -1 Zone, any dwelling unit otherwise permitted by this Code may be used for short term lodging purposes as defined in Chapter 5.95 of the Municipal Code subject to the securing of: 1. A business license pursuant to Chapter 5.04 of the Municipal Code. 2. A transient occupancy registration certificate pursuant to Section 3.16.060 of the Municipal Code. 3. A short term lodging permit pursuant to Chapter 5.95 of the Municipal Code. (E): See Chapter 20.85, Accessory Dwelling Units. (F): See Section 20.60.110, Bed and Breakfast Inns. (G): Keeping of Animals in the R -A District. The following regulations shall apply to the keeping of animals in the R -A District: 1. Large Animals. The keeping of large animals (as defined in Section 20.03.030) shall be subject to the following regulations: a. Horses. One horse may be kept for each ten thousand (10,000) square feet of lot area, up to a maximum of three horses; provided, the horse or horses are kept for recreational purposes only. The keeping of four or more horses for recreational uses shall require a use permit issued by the Planning Director. The keeping of horses for commercial purposes shall require a use permit issued by the Planning Commission. b. Other Large Animals. Other large animals, including goats, sheep, pigs and cows, may be kept on lots of fifteen thousand (15,000) square feet or more and the number shall not exceed two adult animals of any one species. C. Total Number Permitted. The total number of large animals shall not exceed six. Offspring are exempt until such time as they are weaned. 2. Domestic and Exotic Animals. The number of domestic and exotic animals (as defined in Section 20.03.030) shall not exceed six. Offspring are exempt up to the age of three months. The keeping of four or more dogs over the age of three months shall require a kennel license pursuant to Section 7.04.090 of the Municipal Code. The keeping of wild animals shall require a permit pursuant to Chapter 7.08 of the Municipal Code. 3. Small Animals. The number of small animals, other than domestic and exotic animals (as defined in Section 20.03.030), shall not exceed six. Offspring are exempt up to the age of three months. •4. Control. 261/066751 -0059 512369.01 a0721/04e0;*WG4 -6- a. Domestic Animals. No such animals, except for cats, shall be permitted to • run at large, but shall be confined, at all times within a suitable enclosure or otherwise under the control of the owner of the property. b. Other Animals. No animal, other than domestic animals, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure. (H): See Chapter 20.8 1, Oil Wells. (I): See Section 20.60.100, Home Occupations in Residential Districts. (n: See Section 20.60.055, Heliports and Helistops. (K): Special event permit required, see Chapter 5.10 of the Municipal Code. (L): See Section 20.60.120, Personal Property Sales in Residential Districts. (Iv>): See Section 20.60.125, Design Standards for Mobile Homes on Individual Lots. SECTION 6. Section 20.91.015 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.015 Use Permit, Variance, or Federal Exception Permit Requisite to Other Permits. No building permit or certificate of occupancy shall be issued in any case where a use permit, variance, or Federal Exception Permit is required by the terms of this code unless and until such use permit, variance or Federal Exception Permit has been granted by the Planning Director or the Planning Commission or by the affirmative vote of the City Council on appeal or review and then only in accordance with the terms and conditions of the use permit, • variance or Federal Exception Permit granted. SECTION 7. Section 20.91.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.020 Application for Use Permit, Variance, or Federal Exception Permit. An application for a use permit, variance, or Federal Exception Permit shall be filed in a manner consistent with the requirements contained in Chapter 20.90, Application Filing and Fees. SECTION S. Section 20.91.025 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.025 Duties of the Planning Director and the Planning Commission. A. Authority. The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits, variances and Federal Exception Permits, unless the authority for is 261/066751 -0059 512369.01 A0721/0404/BW04 -7- • an administrative decision on a use permit is specifically assigned to the Planning Director in the individual chapters of this code. 1 Exception. The City Council shall have final decision - making authority on the applications for use permits, variances and Federal Exception Permits filed concurrently with amendments to the general plan, zoning code, or a planned community development plan or with a development agreement. B. Rendering of Decision. After the conclusion of the hearing on any application for a use permit, variance or Federal Exception Permit, the Planning Commission shall render a decision within thirty -five (35) days. Where the authority for an administrative decision on a use permit is assigned to the Planning Director, the Planning Director shall render a decision within fourteen (14) days of the acceptance of a completed application. C. Report to the Planning Commission. Upon rendering a decision on a use permit, the Planning Director shall report to the Planning Commission at the next regular meeting or within fourteen (14) days of the decision, whichever is appropriate. • D. Notice of Decision. Upon the rendering of a decision on a use permit by the Planning Director, a notice of the decision shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site. SECTION 9. Section 20.91.030 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.030 Notice and Public Hearing. A. Public Hearings. The Planning Commission shall hold a public hearing on an application for a use permit, variance, or Federal Exception Permit . Public hearings are not required for applications where the authority for an administrative decision on a use permit is assigned to the Planning Director. B. Timing of Hearings. A public hearing shall be held on all use permit, variance, and Federal Exception Permit applications, except as otherwise provided in this chapter, within sixty (60) days after the acceptance of a completed application. • The Planning Commission shall have the ability to review an application for a Federal Exception Permit regardless of whether this code specifically provides for such a Federal Exception Permit when otherwise required by state or federal law. 26110669510059 1 512369.01 a092V bep889/94 &- C. Required Notice. Notice of a public hearing or an • administrative decision shall be given as follows: 1. Mailed or Delivered Notice. a. Residential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet, excluding intervening rights -of -way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. 2. Posted Notice. Notice shall be posted in not less than two • conspicuous places on or close to the property at least ten days prior to the hearing or the administrative decision. 3. Published Notice. Notice shall be published in at least one newspaper of general circulation within the City, at least ten days prior to the hearing. D. Contents ofNotice. The notice of public hearing or of the decision of the Planning Director shall contain: 1. A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing or of the purpose of the administrative decision; 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard at the planning hearing and an explanation of their rights of appeal in the case of an • administrative decision. 261/066751 -0059 512769 -01 a07121 /04.GW4 Q4 -9- • E. Continuance. Upon the date set for a public hearing before the Planning Commission, the Planning Commission may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. SECTION 10. Section 20.91.035 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.035 Required Findings. The Planning Commission or the Planning Director, as the case may be, shall approve or conditionally approve an application for a use permit, variance, or Federal Exception Permit if, on the basis of the application, plans, materials, and testimony submitted, the Planning Commission or the Planning Director finds: A. For Use Permits. I. That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located; 2. That the proposed location of the use permit and the • proposed conditions under which it would be operated or maintained will be consistent with the general plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city; • 3. That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. B. For Variances. I. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification; 2. The granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant; 2611066751-0059 1 512369.01 070! /Q4e971B9/94 -10- 3. The granting of the application is consistent with the • purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district; 4. The granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. C. For Federal Exception Permits 2. The Federal Exception Permit sought is handicapped- related. 2. The applicant has demonstrated that the living group residing in the Dwelling functions as a Single Housekeeping Unit tfansieneey among its merabers. For the pi"eses of Federal shall mean the he, Beheld Gees net e-hange mere than 50% efits members in any given e— le 3. The Federal Exception Permit neither requires a fundamental alteration in the nature of a program affected by the Federal Exception Permit nor imposes an undue financial or administrative burden on the City which creates an undue hardship on the City. To the extent authorized by law, the factors the Planning Commission, or the City Council on review or appeal may consider the following in deciding whether to grant a Federal Exception Permit include, but are not necessarily limited to: (i) whether vehicular traffic congestion in the neighborhood would be increased to an extent that would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; 2 A "Federal Exception Permit' is the name of the permit and application process necessary to obtain a "reasonable accommodation" as that term is used in the Federal Fair Housing Act Amendments (FHAA) and the case law implementing the FHAA. The application for a Federal Exception Permit shall be approved unless the evidence in the administrative record establishes • one of the findings for denial. 261/066751 -0059 - 11 512169.01 a0�04.W49WO4 • (ii) whether the nature of vehicular traffic, such as the frequency or duration of trips by commercial vehicles, would be altered to a such an extent that it would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; or (iii) whether development or use standards established in the Newport Beach Municipal Code and that are applicable to other residential uses in the neighborhood would be violated; or (iv) whether a Campus would be established in a residential zone if the Federal Exception Permit were granted; SECTION 11. Section 20.91.040 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.040 Conditions of Approval. The Planning Commission or the Planning Director, as the case may be, may impose such conditions in connection with the granting of a use permit, variance, or Federal Exception Permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or is will be complied with. Such conditions may include requirements for off - street parking facilities as determined in each case. SECTION 12. Section 20.91.045 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.045 Effective Date. Use permits, variances, and Federal Exception Permits shall not become effective for fourteen (14) days after being granted, and in the event an appeal is filed or if the Planning Commission or the City Council shall exercise its right to review any such decision under the provisions of Chapter 20.95, the permit shall not become effective unless and until a decision granting the use permit, variance or Federal Exception Permit is made by the Planning Commission or the City Council. SECTION 13. Section 20.91.050 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C. relating to Federal Exception Permits. 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation. • A. Expiration. Any use permit, variance, or Federal Exception Permit granted in accordance with the terms of this code shall expire 261/066751 -0059 512369.01 a 70 21 /HeG?A&Qt -12- within twenty -four (24) months from the effective date of approval • or at an alternative time specified as a condition of approval unless: I. A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. In cases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit. B. Time Extension. The Planning Director may grant a time extension for a use permit, variance, or Federal Exception Permit for a period or periods not to exceed three years. An application for a time extension shall be made in writing to the Planning Director no less than thirty (30) days or more than ninety (90) days prior to the • expiration date. C. Violation of Terms. Any use permit, variance, or Federal Exception Permit granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such use permit, variance or Federal Exception Permit are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A use permit, variance, or Federal Exception Permit shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96, Enforcement. SECTION 14. Section 20.91.055 of the Newport Beach Municipal Code is hereby amended relating to Federal Exception Permits. 20.91.055 Amendments and New Applications. A. Amendments. A request for changes in conditions of approval of a use permit, variance, or Federal Exception Permit or a change to plans that would affect a condition of approval shall be treated as a • new application. The Planning Director may waive the requirement 261/066751 0059 512769.01 ao7rz1 /04°^'AD944 -13- • for a new application if the changes are minor, do not involve substantial alterations or additions to the plan or the conditions of approval, and are consistent with the intent of the original approval. • • B. New Applications. If an application for a use permit, variance, or Federal Exception Permit is disapproved, no new application for the same, or substantially the same, use permit, variance or Federal Exception Permit shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. 261/066751-0059 512369.01 a47u[Q4e97/B9/B4 —14— iuoldfarbn.rutan.com • Mr. Bob Burnham City Anomey City of Newport Beach 3300 Newport Blvd. Newport Beach, Ca. 926663 Permit me to summarize my credentials in the field of chemical dependency treatment. I have been in the private practice of psychiatry and chemical dependency for 25 years. My residency in psychiatry at the UCLA - Brentwood VA included one year of family orienied treatment of chemical dependency as well as intensive exposure to the treatment of individual patients in recovery. Following the residency I served for three years as Director of the outpatient Combined Alcohol and Drug Recovery Program at the Brentwood VA Medical Center. In 1985 1 developed and initiated the first Dual Diagnosis treatment program in Los Angeles at the CPC Westwood Hospital in West Los Angeles. All of these treatment venues were carefully integrated with Twelve Step activities. In the ensuing years 1 have actively treated alcohol and drug dependent patients in a range of treatment settings, which includes treating physicians in coordination with • the Diversion Program of the Medical Board of California. I have been asked to opine in the matter of how many participants are necessary for the effective operation of a residential sober living home. To clanfy terminology, I define a sober living home as a non - service providing residential living facility That is not under The auspices of a state or municipal licensing agency. Participation in a sober living milieu is on a voluntary basis for the expressed purpose of supporting the common goal of maintaining sobriety/abstinence from addictive substances. Participants mutually reinforce the values and behaviors pertinent to recovery from addiction. There are no professional services provided in sober living homes, which rely on the motivation of the individuals and The group for self - improvement. In my opinion, a residential capacity of six or fewer constitutes a sufficient number of participants to achieve The stated goals of a sober living home. For many recovering individuals a quieter environment with a smaller number of participants is the optimal recovery setting. When contact with larger numbers of people in recovery is desirable, this can easily be accomplished by Transportation to large group meetings. As a corollary to this opinion it would be reasonable policy to require a special application to the city explaining why seven or more people are necessary for a functional program. Michael Gales MD EXHIBIT • 0 • TO: FROM CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT MAYOR & MEMBERS OF THE CITY COUNCIL Robert Burnham, City Attorney 644 -3131, rburnham(a),city.newport- beach.ca.us SUBJECT: Zoning Amendment/Recovery Facilities ISSUE: COUNCIL A E DA NO. ±-41-1 b Agenda Item No. 19 July 13, 2004 Should the City Council introduce, and pass to second reading and adoption, amendments to the Zoning Code (Exhibit A) that are intended to preserve the character of residential neighborhoods in a manner consistent with State and Federal statutory/decisional law related to the regulation of recovery facilities? RECOMMENDATION: Staff recommends that the City Council introduce and pass to second reading the proposed amendments to the Zoning Code. BACKGROUND: On February 24. 2004, the City Council initiated amendments to the Zoning Code "pertaining to recovery facilities in residential districts." On May 20, 2004, the Planning Commission conducted a noticed public hearing relative to proposed amendments to various provisions of the Zoning Code. The Planning Commission held a second hearing on June 17, 2004. The Planning Commission (4 ayes, 2 nays and one absent) voted to approve the Exhibit A with the understanding that the definition of campus be revised to specify three or more structures located within a radius of 300 yards. For purposes of this memo, we are using the term 'recovery facilities" to mean dwelling units 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. Based on research conducted to date, special counsel and staff believe the following is an accurate summary of the statutory and decisional law that is most relevant to the regulation of recovery facilities: 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. According to State law, 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 recovery facilities 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. The FHAA and related case law prohibits the City from, among other things, establishing a "one person per bedroom room" requirement for recovery facilities, imposing distance requirements between recovery facilities, and or preventing "for - profit' entities from establishing or operating recovery facilities. 4. The provisions of State law relative to the treatment of State - licensed recovery facilities serving six or fewer occupants and the provisions of the FHAA that prohibit discrimination combine to prevent the City from treating unlicensed recovery facilities differently than State - licensed recovery facilities. PLANNING COMMISSION MEETING OF MAY 20, 2004 At the Planning Commission meeting on May 20th, staff and special counsel presented • the proposed Zoning Code amendments that were drafted in an effort to preserve the unique character of our diverse residential neighborhood in a manner consistent with State and Federal statutory and decisional law. The amendments presented on May 20, 2004 can be summarized as follows: 1. Various definitions — including "single family dwelling" and "family" — were modified and the term "single housekeeping unit' has been added. (20.03.030) 2. Certain 'Residential Use Classifications" were modified to more closely conform to law and the term 'Residential Care, General" was added. (20.05.030) 3. A "Reasonable Accommodation" process was added to provide a mechanism for persons to request, and for the City to evaluate and approve when appropriate, a "Reasonable Accommodation." (Section 20.91.020) 4. The matrix of permitted land uses in Residential Districts was been modified to permit 'Residential Care, Limited" (recovery facilities with six or fewer occupants per dwelling unit) in all Districts. The matrix was also modified to prohibit Residential Care, General" in R -1 and R -A zones (20.10.020) and require a 'Reasonable Accommodation" for 'Residential Care, General" (recovery facilities with seven or more occupants per dwelling unit) uses in all other residential zones. • During the public hearing on May 20h, members of the Planning Commission and the • public commented on, and asked staff and special counsel to evaluate, a number of issues. The issues included: (a) why special counsel and staff were proposing amendments that allow recovery facilities with seven or more occupants per dwelling unit in the R1.5 and R -2 zones with a reasonable accommodation; (b) the extent of the City's ability to consider parcel size as a factor in the zones in which recovery facilities are located and /or the reasonable accommodation determination; (c) the factors — including impact on the neighborhood - the City could or should consider in granting a reasonable accommodation; (d) the extent of the City's ability to adopt and apply special parking standards to recovery facilities; (e) whether the Planning Director or the Planning Commission should make the initial determination on a reasonable accommodation; (e) the City's ability, if any, to establish limits on the number of recovery facilities in a particular neighborhood or geographic area; and (f) the manner in which neighboring communities are dealing with recovery facilities. PLANNING COMMISSION MEETING OF JUNE 17, 2004 On June 17, 2004, staff and special counsel presented the Planning Commission with a revised ordinance that responded, where possible, to issues raised during the May 201h meeting. The major changes to the ordinance presented on May 20th were: (a) the addition of a definition of campus to mean three or more buildings being used together for a common purpose where one of the buildings provides a service for the users of all buildings; (b) the addition of a "Federal Exception Permit" (FEP) requirement for • recovery facilities in R -1.5, R -2 and MFR zones and delineation of some of the factors that the Planning Commission could consider in deciding whether to grant or deny an FEP; and (c) designating the Planning Commission — rather than the Planning Director - as the initial decision maker on an application for an FEP. DISCUSSION The proposed ordinance (Exhibit A) conforms to the recommendation of the Planning Commission represents what staff and special counsel believe is the most appropriate vehicle to reconcile State and Federal restrictions on our ability to regulate recovery facilities with the desire of the City Council to preserve the unique character of different residential neighborhoods. Newport Beach is home to residential areas — such as the R -1.5 and R -2 zones near the beach and bay - that have a relatively high percentage of renters and a sizeable number of dwelling units that are offered as vacation rentals during the summer and to college students during the winter. These R -1.5 and R -2 zones are characterized by relatively small lots and, based on anecdotal evidence, relatively high densities. For these reasons, the proposed ordinance prohibits recovery facilities in R -1 zones (or the equivalent) and requires recovery facilities serving 7 or more occupants in the R 1 -5 and R -2 zones to obtain a Federal Exception Permit. • Members of the Planning Commission and those who testified at the two public hearings suggested various amendments that would establish special development standards for recovery facilities. Staff and special counsel are aware of no hard • evidence to support a finding that recovery facilities — other than situations involving a "campus" - have a greater impact on parking than other residential uses. However, we have evidence that suggests the concentration of recovery facilities in an area can increase the volume of traffic and the number of large commercial vehicles entering and leaving the area — so we have incorporated those considerations into the Federal Exception Permit process. We have previously offered the opinion, based on legal research, that the City does not have the authority to regulate the number of recovery facilities in a given area or require that recovery facilities be separated by a speck distance. Finally, special counsel has prepared a matrix of the recovery facility regulations adopted by neighboring jurisdictions (Exhibit B). The proposed ordinance — which would amend provisions of the Zoning Code — does not address issues related to licenses that recovery facilities might be required to obtain under other provisions of the Municipal Code or the application of other provisions that regulate the conduct of people or require permits of certain land uses. This office and special counsel will be reviewing those issues separately and will provide the City Council with an analysis sometime in the near future. The proposed amendments are exempt from CEQA pursuant to Section 15305 (Minor Alterations in Land Use Limitations) of the CEQA Guidelines. Su itted by: /Robert Burnham, City Attorney • • • DRAFT ORDINANCE NO. _ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS 20.03.030, 20.05.030, 20.05.040, 20.10.010 20.10.020 and Chapter 20.91 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ALL CATEGORIES OF GROUP LIVING WHEREAS, the City has adopted regulations on different types of group living arrangements at various times throughout the City's history; and WHEREAS, the existing regulations on group living are confusing and in need of refinement; and WHEREAS, in light of the Fair Housing Act Amendments, 42 U.S.C. § 3601, et seq. (the "Act "), the City desires to codify its process for providing Federal Exception Permits when appropriate under the Act; NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: • SECTION 1. The following definitions contained in Section 20.03.030 of the Newport Beach Municipal Code are hereby amended to read as follows: • "Campus" means three or more buildings in a residential zone within a 300 yard radius of one another that are used together for a cornmon purpose where one or more of the buildings provides a service for the occupants of all the buildings such as when one building serves as a kitchen/food service area for the occupants of the other buildings. "Dwelling, multifamily" means a building containing three or more dwelling units, each of which is for occupancy by one family. "Dwelling, single - family" means a building containing one dwelling unit for occupancy by one family. "Dwelling, two family" means a building containing two dwelling units, each of which is for occupancy by a one family. "Family" means one or more persons living as a Single Housekeeping Unit. The term "Family" shall include residential care, limited facilities for six or fewer mentally disabled, mentally 2611066751 -0059 512369.01 a07/06104 EXHIBIT disordered or otherwise handicapped persons, but no other living group not living together as a single housekeeping unit. "Single Housekeeping Unit" means the functional equivalent of a traditional family, whose members are a non - transient, interactive group of persons jointly occupying a single dwelling unit, including the joint use of common areas and sharing household activities and responsibilities such as meals, chores, and expenses. SECTION 2. The following definitions contained in Section 20.05.030 of the Newport Beach Municipal Code are hereby amended to read in their entirety as follows: "Day -Care, Limited" means non - residential, non - medical care and supervision of twelve (12) or fewer persons on a less than twenty -four hour basis. This classification includes, but is not limited to nursery schools, preschools, and day -care centers for children (large and small family day -care homes) and adults. "Group residential" means shared living quarters 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, Section 20.05.050(EE)(4)). "Residential Care - Limited" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for six or fewer persons with physical or mental impairments which substantially limit one or more of such person's major life activities. This classification also includes, but is not limited to group homes, sober living environments, recovery facilities, and establishments providing non - medical care for persons in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. "Residential Care, General" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for seven or more persons with physical or mental impairments which substantially limit one or more of such person's 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. • 26110667510059 512369.01 a07106f04 -2- • "Single - Family Residential" means buildings containing one dwelling unit located on a single lot for occupancy by one family. This classification includes mobile home and factory built housing. "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 mobile home and factory built housing. SECTION 3. The definition of "Residential Care, General" contained in Section 20.05.040 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: "Residential Care, General" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for seven or more persons with physical or mental impairments which substantially limit one or more of such person's 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. • SECTION 4. Subsection Hof Section 20.10.010 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: H. Provide public services and facilities to accommodate planned population and densities. The specific residential districts and their purposes are as follows: Residential - Agri cultural (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 limiting occupancy to one family. Restricted Two Family Residential (R -1.5) District. Provides areas for single - family and two family residential land uses with the total gross floor area of all buildings limited to a maximum floor area ratio of 1.5 times the buildable area. Two Family Residential (R -2) District. Provides areas for • single - family and two family residential land uses. 2611066751 -0059 512369.01 .07106/04 -3- Multifamily Residential (MFR) District. Provides areas for single - family, two - family, and multiple family residential land • uses. SECTION 5. Section 20.10.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.10.020 Residential Districts: Land Use Regulations. The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in residential districts, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in residential districts. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "PD /U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P /UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. The letters RA designates use classifications for which a Federal Exception Permit must first be obtained pursuant to Chapter 20.91. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. • Residential Districts: Land Use Regulations j I = Permitted UP = Use permit r PD/U = Use permit issued by the Plamling Director ! j L = Limited (see Additional Use Regulations) FEP = Federal Exception Permit - -- = Not Permitted j R -A i R -1 R -1.5 It -2 ( MFR i Additional �f —���If - - - -i Regulations RESIDENTIAL I���� E�� (A), (B), (C) Day -Care, Limited — - -- ;GroupResidential _._ ...1== _...- ......._J� --- 11_: =.... .... _...;1'== .._..._....._...1....- ._... - - - - -- Residential Care, Limited Residential Care, General - -- F�EP� FEP[EEL Single - family Residential ;� 1p j[ (D), (E) (M) Multifamily Residential i - -- P (D) ITwo-Family Residential ;F_-_F- —I? P P (D) 2611066751 -0059 512369.01 a07/06104 -4- BLIC AND SEMI - PUBLIC meteries , Clubs and Lodges Convalescent Facilities �r __1K F=!_ -2 ' J L-2 ( ® L -2 ®® L -2 Day -Care, General i Government Offices_— UP UP UP ,Hospitals Park and Recreation Facilities j Public Safety Facilities JUp Religious Assembly __t UP Schools, Pu - - -blic an— d Private j- -- - - - -- — UP _IUP �JrUP��� Utilities, Major UP UP UP UP�� UP i Utilities, Minor COMMERCIAL USE Horticulture, Limited Nurseries -hicle /Equipment Sales and ices i -Commercial Parking Facility J1 "= P j PD/ --- 'L-3 - -- ..,...j- - -� L -3 ]L-3 — i 1 L- j — - - - -![ Visitor Accommodations ` - - - -' ;F_ -L - - -_ .__1._.._- rL. .- _-- __..i_� -Bed and Breakfast Inns UP UP 1(F -SRO Residential Hotels i - -- AGRICULTURAL AND f�+�I�� • EXTRACTIVE Animal husbandry PD1 Cro Production Mining and Processing � - -�� (A), (g), (C) (G) �� — I�r— � ----------------- � ACCESSORY USES Accessory Structures and Uses P/lIP ; P/lJP P/Up P/Up P/lJP [ TEMPORARY USES - � -(p), (B),.(C)_._._..._' uses and Carnivals P F)--, [P P P K i w 261/066751 -0059 512369.01 a07/06/04 -5- Residential Districts: Additional Land Use Regulations L -1: Twenty (20) acres minimum. L -2: Limited to yacht clubs, use permit required. L -3: Public or no fee private lots for automobiles may be permitted in any residential district adjacent to any commercial or industrial district subject to the securing of a use permit in each case. L4: See Chapter 20.8 1, Oil Wells. L•5: Subject to the approval of the Planning Director. (A): See Section 20.60.025, Relocatable Buildings. (B): See Section 20.60.015, Temporary Structures and Uses. (C): See Section 20.60.050, Outdoor Lighting. (D): With the exception of uses in the R -1 Zone, any dwelling unit otherwise permitted by this Code may be used for short term lodging purposes as defined in Chapter 5.95 of the Municipal Code subject to the securing of: 1. A business license pursuant to Chapter 5.04 of the Municipal Code. 2. A transient occupancy registration certificate pursuant to Section 3.16.060 of the Municipal Code. 3. A short term lodging permit pursuant to Chapter 5.95 of the Municipal Code. (E): See Chapter 20.85, Accessory Dwelling Units. (k): See Section 20.60.110, Bed and Breakfast Inns. • (0): Keeping of Animals in the R -A District. The following regulations shall apply to the keeping of animals in the R -A District: 1. Large Animals. The keeping of large animals (as defined in Section 20.03.030) shall be subject to the following regulations: a. Horses. One horse may be kept for each ten thousand (10,000) square feet of lot area, up to a maximum of three horses; provided, the horse or horses are kept for recreational purposes only. The keeping of four or more horses for recreational uses shall require a use permit issued by the Planning Director. The keeping of horses for commercial purposes shall require a use permit issued by the Planning Commission. b. Other Large Animals. Other large animals, including goats, sheep, pigs and cows, may be kept on lots of fifteen thousand (15,000) square feet or more and the number shall not exceed two adult animals of any one species. C. Total Number Permitted. The total number of large animals shall not exceed six. Offspring are exempt until such time as they are weaned. 2. Domestic and Exotic Animals. The number of domestic and exotic animals (as defined in Section 20.03.030) shall not exceed six. Offspring are exempt up to the age of three months. The keeping of four or more dogs over the age of three months shall require a kennel license pursuant to Section 7.04.090 of the Municipal Code. The keeping of wild animals shall require a permit pursuant to Chapter 7.08 of the Municipal Code. 3. Small Animals. The number of small animals, other than domestic and exotic animals (as defined in Section 20.03.030), shall not exceed six. Offspring are exempt up to the age of three months. 4. Control. • 2611066751 -0059 512369.01 47106/04 -6- a. Domestic Animals. No such animals, except for cats, shall be permitted to Wun at large, but shall be confined, at all times within a suitable enclosure or otherwise under the control of e owner of the property. b. Other Animals. No animal, other than domestic animals, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure. (H): See Chapter 20.8 1, Oil Wells. (I): See Section 20.60.100, Home Occupations in Residential Districts. (J): See Section 20.60.055, Heliports and Helistops. (K): Special event permit required, see Chapter 5.10 of the Municipal Code. (L): See Section 20.60.120, Personal Property Sales in Residential Districts. (M): See Section 20.60.125, Design Standards for Mobile Homes on Individual Lots. SECTION 6. Section 20.91.015 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.015 Use Permit, Variance, or Federal Exception Permit Requisite to Other Permits. No building permit or certificate of occupancy shall be issued in any case where a use permit, variance, or Federal Exception Pen-nit is required by the terms of this code unless and until such use pen-nit, variance or Federal Exception Permit has been granted by the Planning Director or the Planning Commission or by the affinnative vote of the City Council on appeal or review and then • only in accordance with the terms and conditions of the use permit, variance or Federal Exception Permit granted. • SECTION 7. Section 20.91.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.020 Application for Use Permit, Variance, or Federal Exception Permit. An application for a use pen-nit, variance, or Federal Exception Permit shall be filed in a manner consistent with the requirements contained in Chapter 20.90, Application Filing and Fees. SECTION 8. Section 20.91.025 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.025 Duties of the Planning Director and the Planning Commission. A. Authority. The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits, variances and Federal Exception Permits, unless the authority for 261/066751 -0059 512769.01 .07/06;04 -7- an administrative decision on a use permit is specifically assigned to the Planning Director in the individual chapters of this code. 1 Exception. The City Council shall have final decision - making authority on the applications for use permits, variances and Federal Exception Permits filed concurrently with amendments to the general plan, zoning code, or a planned community development plan or with a development agreement. B. Rendering of Decision. After the conclusion of the hearing on any application for a use permit, variance or Federal Exception Permit, the Planning Commission shall render a decision within thirty -five (35) days. Where the authority for an administrative decision on a use permit is assigned to the Planning Director, the Planning Director shall render a decision within fourteen (14) days of the acceptance of a completed application. C. Report to the Planning Commission. Upon rendering a decision on a use permit, the Planning Director shall report to the Planning Commission at the next regular meeting or within fourteen (14) days of the decision, whichever is appropriate. D. Notice of Decision. Upon the rendering of a decision on a use permit by the Planning Director, a notice of the decision shall • be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site. SECTION 9. Section 20.91.030 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.030 Notice and Public Hearing. A. Public Hearings. The Planning Commission shall hold a public hearing on an application for a use permit, variance, or Federal Exception Permit . Public hearings are not required for applications where the authority for an administrative decision on a use permit is assigned to the Planning Director. B. Timing of Hearings. A public hearing shall be held on all use permit, variance, and Federal Exception Permit applications, except as otherwise provided in this chapter, within sixty (60) days after the acceptance of a completed application. 1 The Planning Commission Direetefshall have the ability to review an application for a nable areommedationFederal Exception Permit regardless of whether this code specifically provides for such a reasonable aeeemmodationFederal Exception Permit when otherwise • required by state or federal law. 261/066751 -0059 512369.01 .07/06104 -8- C. Required Notice. Notice of a public hearing or an • administrative decision shall be given as follows: 1: Mailed or Delivered Notice. a. Residential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet, excluding intervening rights -of -way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. • 2. Posted Notice. Notice shall be posted in not less than two conspicuous places on or close to the property at least ten days prior to the hearing or the administrative decision. 3. Published Notice. Notice shall be published in at least one newspaper of general circulation within the City, at least ten days prior to the hearing. D. Contents of Notice. The notice of public hearing or of the decision of the Planning Director shall contain: 1. A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing or of the purpose of the administrative decision; 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard at the planning hearing and an • explanation of their rights of appeal in the case of an administrative decision. 261/066751 -0059 512369.01 .07106/04 -9- E. Continuance. Upon the date set for a public hearing before 'l the Planning Commission, the Planning Commission may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. SECTION 10. Section 20.91.035 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.035 Required Findings. The Planning Commission or the Planning Director, as the case may be, shall approve or conditionally approve an application for a use permit, variance, or Federal Exception Permit if, on the basis of the application, plans, materials, and testimony submitted, the Planning Commission or the Planning Director finds: A. For Use Permits. I. That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located; 2.. That the proposed location of the use permit and the proposed conditions under which it would be operated or maintained will be consistent with the general plan and the purpose of the district in which the site is located; will not be detrimental to • the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city; 3. That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. B. For Variances. I. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification; 2. The granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant; • 26110667510059 512369.01 a0WO&IN -1 �- 3. The granting of the application is consistent with the purposes of this code and will not constitute a grant of special • privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district; 4. The granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. C. For Federal Exception PermitS2. The Federal Exception Permit sought is handicapped- related. 2. The applicant has demonstrated that the living group residing in the Dwelling functions as a Single Housekeeping Unit as evidenced by factors including, but not limited to a lack of transiencey among its members. For the purposes of Federal Exception Permits in other than the R -1 Zone, a lack oftransiencey • shall mean the household does not change more than 50% of its members in any given calendar year. 3. The Federal Exception Permit neither requires a fundamental alteration in the nature of a program affected by the Federal Exception Pen-nit nor imposes an undue financial or administrative burden on the City which creates all undue hardship on the City. To the extent authorized by law, the factors the Planning Commission, or the City Council on review or appeal may consider the following in deciding whether to grant a Federal Exception Permit include, but are not necessarily limited to: (i) whether vehicular traffic congestion in the neighborhood would be increased to an extent that would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; 2 A "Federal Exception Pennit' is the name of the permit andagplication process necessary to obtain a "reasonable accommodation" as that term is used in the Federal Fair Housing Act Amendments (FHAA) and the case law implementing the FHAA. The application for a Federal • Exception Permit shall be approved unless the evidence in the administrative record establishes one of the findings for denial. 261/066751 -0059 512369.01 .07106!04 -1 1- (ii) whether the nature of vehicular traffic, such as the frequency or duration of trips by commercial vehicles, would be • altered to a such an extent that it would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; or (iii) whether development or use standards established in the Newport Beach Municipal Code and that are applicable to other residential uses in the neighborhood would be violated; or (iv) whether a Campus would be established in a residential zone if the Federal Exception Permit were granted; SECTION 11. Section 20.91.040 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.040 Conditions of Approval. The Planning Commission or the Planning Director, as the case may be, may impose such conditions in connection with the granting of a use permit, variance, or Federal Exception Permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. Such conditions may include requirements for off - street parking facilities as determined in each case. • SECTION 12. Section 20.91.045 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.045 Effective Date. Use permits, variances, and Federal Exception Pen-nits shall not become effective for fourteen (14) days after being granted, and in the event an appeal is filed or if the Planning Commission or the City Council shall exercise its right to review any such decision under the provisions of Chapter 20.95, the permit shall not become effective unless and until a decision granting the use permit, variance or Federal Exception Permit is made by the Planning Commission or the City Council. SECTION 13. Section 20.91.050 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C. relating to Federal Exception Permits. 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation. A. Expiration. Any use permit, variance, or Federal Exception Permit granted in accordance with the terns of this code shall expire • 261/066751 -0059 512369.01 .07/06/04 within twenty -four (24) months from the effective date of approval • or at an alternative time specified as a condition of approval unless: 1. A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. In cases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit. B. Time Extension. The Planning Director may grant a time extension for a use permit, variance, or Federal Exception Permit for a period or periods not to exceed three years. An application for a time extension shall be made in writing to the Planning Director no less than thirty (30) days or more than ninety (90) days prior to the • expiration date. C. Violation of Terms. Any use permit, variance, or Federal Exception Permit granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such use permit, variance or Federal Exception Permit are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A use permit, variance, or Federal Exception Permit shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96, Enforcement. SECTION 14. Section 20.91.055 of the Newport Beach Municipal Code is hereby amended relating to Federal Exception Permits. 20.91.055 Amendments and New Applications. A. Amendments. A request for changes in conditions of approval of a use perinit, variance, or Federal Exception Permit or a change to plans that would affect a condition of approval shall be treated as a • new application. The Planning Director may waive the requirement 261/066751 -0059 512369.D1 007ft/W -13- for a new application if the changes are minor, do not involve substantial alterations or additions to the plan or the conditions of approval, and are consistent with the intent of the original approval. B. New Applications. If an application for a use permit, variance, or Federal Exception Permit is disapproved, no new application for the same, or substantially the same, use permit, variance or Federal Exception Permit shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. • • 261/066751 -0059 512369.01 .07/06/04 -14- 0 MEMORANDUM TO: Bob Burnham, City Attorney, City of Newport Beach FROM: Jeffrey A. Goldfarb DATE: July 6, 2004 FILE NO.: 066751 -0059 RE: Nearby Cities' Mechanism for Regulating Sober Living Environments You have asked that we review the mechanism that adjoining cities use for the regulation of sober living facilities. We have reviewed the Municipal codes for the Cities of Costa Mesa, Irvine and Laguna Beach. Below is a discussion of each city's regulatory approach. City of Irvine The City of Irvine defines a sober living facility "as any house, institution, hotel or similar place that provides room and board, or rooms only, and operates as a drug and alcohol • free residential facility." (Irvine Zoning Ord. § 1 -2 -1.) Irvine permits sober living facilities in all residential zones with the exception of the "estate density residential zone" (one house per acre) without regard to the number of persons the facility serves and without regard to whether the residents are living together as a single housekeeping unit. (Irvine Municipal Code § 3 -3 -1.) Irvine also includes regulates a category of uses entitled "Residential Care facilities," (Irvine Zoning Ord. § 1 -2 -1.) which are defined as "any family home, group care facility or similar facility providing 24 -hour non - medical services, supervisions or assistance essential for sustaining the activities of daily living. Residential Care facilities includes shelters, board and care facilities, half way houses, wards of the juvenal court and the like and excludes Sober living facilities." (Id.) The Irvine Zoning Ordinance allows Residential Care facilities in all residential zones with a Conditional Use Permit. (Irvine Municipal Code § 3 -3 -1.) Because Residential Care facilities expressly exclude all "Sober Living Facilities," the Irvine Zoning Ordinance would allow all drug and alcohol free group living facilities, in every residential zoned as a matter of right without regard to number of residents. 11. City of Costa Mesa Costa Mesa includes sober living facilities within the definition of residential care facilities (which are state licensed facilities), and residential service facilities (which are not state licensed facilities). Residential Care and Service facilities serving 6 or fewer are permitted in all of the city's residential zones. (Costa Mesa Municipal Code § 13 -30.) Residential Care and Service facilities serving 7 or more are prohibited in the City's R -1 zone, and conditionally permitted in all other residential zones of the City. (Costa Mesa Municipal Code § 13 -30.) The • City Code also contains a special category of Residential Care and Service facilities referred to 261/066751 -0059 507735.01 a06 /16/04 EXHIBIT 0 Bob Burnham, City Attorney, City of Newport " Beach • July 6, 2004 Page 2 as a "Referral Facility." A Referral Facility is a Residential Care or Residential Service facility where one or more of the person's residency in the facility is pursuant to a court order or directive from an agency in the criminal justice system. The category does not, however, include state license facilities containing 6 or fewer persons. Referral Facilities are prohibited in the City's R -I zone and permitted by conditional use permit in all of the City's other residential zones. (Costa Mesa Municipal Code § 13 -30.) III. City of Laguna Beach The City of Laguna Beach does not expressly regulate sober living homes, residential treatment facilities or other group homes. The city does, however, limit residency to "families," defined as "an individual or two or more persons related by flood, marriage or adoption, living together or a group of not more than six persons (excluding servants) not all of whom are related by blood, marriage or adoption but all of them are living together as a single housekeeping unit within a dwelling so that all persons within the unit maintain free access to all living spaces within the dwelling. (Laguna Beach Municipal Code § 25.08.012.) Under state law, all residential care facilities and alcohol rehabilitation facilities serving 6 or fewer persons would therefore be permitted in all the City's residential zones. It is unclear how the City regulates • residential care facilities, group homes or alcohol recovery facilities serving 7 or more. • 261/066751-0059 507735.01 a06/16/04 . 07/13/2004 09:33 FACSIMILE • (949) 752 -2141 949192 ^142 CPLTN BRT7 KNPL CHN PAGC 02 LAW OFFICES OF 7ELEPHONE DANIEL So DRIVE, C. CARL TON ION (949) 757 -0707 IRVINE, CALIFORNIA 92612 Legal AsSlstant Heather Dorrle July 12, 2004 HAND DELIVERED City Council City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 Op, Re: July 13, 2004 Hearing Agenda Item 19 Proposed Zoning Amendment/Recovery Facilities City of Newport Beach Planning Commission Staff Report, dated July 13, 2004, in re Agenda Item No. 19 Dear Mayor Ridgeway and City Council Members: • This will confirm that this office represents Narconon Southern California. Our client received on July. 9, 2004 a copy of the latest Planning Commission Staff Report summary with recommendation regarding the proposed zoning amendments for recovery facilities for the Hearing scheduled for July 13, 2004 as Agenda Item No. 19 with Exhibits A (the proposed ordinance amendment) and Exhibit B (Memorandum dated July 6, 2004), A copy is attached for your review. Although we have not had the opportunity to study the proposed amendments, a cursory review raises the following issues of concern: 1. We note that the newly coined term "federal exception permit" does not exist under state and federal laws. It appears that the use of this term is an attempt to circumvent applicable laws. 2. The amendment attempts to create a new category of definitions, delineating the difference between Residential Care, General and Multi- Family Residential. The amendment attempts to place additional burdens on an applicant for Residential Care, General under MFR. Once again, to the extent that these proposed Changes discriminate against recovery facilities, they are oppressive and burdensome and in violation of state and federal laws. 3, in order to obtain a reasonable accommodation, apparently an Applicant • must prove that there Is a lack of transiency among its members. This is defined in 07/13/2004 09:33 9497522141 City Council City of Newport July 12, 2004 Page 2 CRLTN BRTZ KNPL CHN PAGE 03 section 10 of the Newport Beach Municipal Code 20.91.0356.2 as "a lack of transiency has meant that the household does not change more than 50% of its members in any calendar year." We question how this can be justified in light of state and federal laws regarding discriminatory practices against recovery facilities. is the City going to apply this definition also to residential rental properties? 4. The Amendment requires a finding that traffic congestion or the nature of vehicular traffic would not be altered to violate any municipal code. We understand that a hotel is being proposed on the peninsula. It seems obvious that a recovery facility would generate far less traffic and congestion (and transients) than would a hotel. Will the same standards apply? 5. State and federal laws are quite clear that the City must provide reasonable accommodations to recovery facilities in. order to avoid discrimination. As long as the final ordinance is in line with state and federal laws, our client will support It. Thank you for your consideration in addressing these Issues. Respectfully, DANIEL C. CARLTON 7Z7 DCC:td cc: Jon Stearman, DIA Narconcon Southern California (via facsimile) Robert Burnham, Newport Beach City Attorney (via facsimile) Jeffrey A. Goldfarb, Special Counsel to City of Newport Beach (via facsimile) C� • • 0i {13!'1004 09:33 CJ TO: FROM: 94975,2242141 CRLTN 6RTZ KNPL CHN CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT MAYOR & MEMBERS OF THE CITY COUNCIL Robert Bumham, City Attorney 844- 3131, rbumham@city.newoort- beach.ca.us SUBJECT: Zoning Amendment/Recovery Facilities ISSUE: PAGE 04 Agenda Item No. 19 July 13, 2004 Should the City Council introduce, and pass to second reading and adoption, amendments to the Zoning Code (Exhibit A) that are intended to preserve the character of residential neighborhoods in a manner consistent with State and Federal statutory/decisional law.related to the regulation of recovery facilities? RECOMMENDATION: Staff recommends that. the. City Council introduce and pass to second reading the • proposed amendments to the Zoning Code. BACKGROUND: On February 24. 2004, the City Council Initiated amendments to the Zoning Code "pertaining to recovery facilities in. residential districts." On May 20, 2004, the Planning Commission conducted a noticed public hearing relative to proposed amendments to various provisions of the Zoning Code. The Planning Commission held a second hearing on June 17, 2004. The Planning Commission (4 ayes, 2 nays and one absent) voted to approve the Exhibit A with the understanding that the definition of. campus be revised to. specify three or more structures located within a.radius of 300 yards. , For purposes of this memo, we are using the term "recovery, facilities" to mean dwelling units 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. Based on research conducted to date, special counsel and staff believe the following is an accurate summary of the statutory and decisional law that is most relevant to the regulation of recovery facilities: I . State law requires the City to treat State - licensed drug or alcohol treatment facilities serving six or fewer occupants as single family residentlal 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 • 0;!1312004 09:33 9497522141 CRLTN BRTZ KNPL CHN PAGE 05 . occupants. According to State law, 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 recovery facilities 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:,wafVlhg 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. The FHAA and related rase law prohibits the City from, among other things, establishing a "one person per bedroom room" requirement for recovery facilities, imposing distance requirements..between recovery facilities, and or preventing "for> profit" entities from establishing or operating recovery facilities. 4. The provisions of State law relative to the treatment of State - licensed recovery facilities serving six or fewer occupants and the provisions of the FHAA that prohibit discrimination combine to prevent the City. from treating unlicensed recovery facilities differently than State - licensed recovery facilities. PLANNING COMMISSION MEETING OF MAY 20, 2004 At the Planning Commission meeting on May 20 th, staff and special counsel presented the proposed Zoning Code amendments that were drafted in an effort to preserve the unique character of our diverse residential neighborhood In a manner consistent with State and Federal statutory and decisional law. The amendments presented on May 20, 2004 can be summarized as follows: 1. Various definitions — including "single family dwelling" and "family" — were modified and the term "single housekeeping unit" has been added. (20.03.030) 2. Certain "Residential Use Classifications" were modified to more closely conform. to law and the term "Residential Care, General" was added. (20.05.030) 3. A "Reasonable Accommodation" process was added to provide a mechanism for persons to request, and for the City to evaluate and approve when appropriate, a "Reasonable Accommodation." (Section 20.91.020) 4. The matrix of permitted land uses in Residential Districts was been modified to pen-nit "Residential Care, Limited" (recovery facilities with six or fewer occupants per dwelling unit) in all Districts. The matrix was also modified to prohibit Residential Care, General' in R -1 and R -A zones (20.10.020) and require a "Reasonable Accommodation" for "Residential Care, General" (recovery facilities with seven or more occupants per dwelling unit) uses in all other residential zones. •: -- CiiLIN FRiL KNFL CHN PAGE 0 - IJ /11J: c�J r)4 '0i :44 `J4"i 17 L2141 During the public hearing on May 20k', members of the Planning Commission and the public commented on, and asked staff and special counsel to evaluate, a number of • issues. The issues included: (a) why special counsel and staff, were proposing amendments that aliow:recovery facilities with seven or more occupants per'dviielling unit In the R1.5 and R -2 zones with a reasonable accommodation; (b) the extent of the City's ability to consider parcel size as a factor In the zones In which recovery facilities are located andlor the reasonable accommodation determination; (c) the factors — including impact on the neighborhood - the City could or- should consider in granting a - reasonable accommodation; (d) the extent of the City's ability to adopt and apply special parking. standards to recovery facilities; (e) whether. the Planning Director or the Planning Commission should make the ..initial . determination on' A reasdridbie accommodation; (e). the City's ability, if any, to establish limits on the number of recovery facilities in a particular neighborhood.or,geographltrarea; and (I the mantle? in which neigtibodnd.communitles are dealing with recovery facilities. • • PLANNING COMMISSION MEETING OF JUNE_17, 2004 On June 17, 2004, staff and special counsel presented the Planning Commission with a revised ordinance that responded, where possible, to Issues raised during the May 201' meeting. The major changes to the ordinance presented on May 201fi were: (a) the addition of a definition of campus to. mean three or more buildings being used together for a common purpose where.one. of the buildings provides a service for the users of ell buildings; (b) the addition.: of. a ."Federal ° Exceptlon::Permlf. . (FEP) requlrehidht" for recovery.facllities in R -1.5; R -2 and MFR-zones and delineation of some of the factors that the Planning Commission could consider In deciding whether to grant or deny an FEP; and (c) designating the Planning Commission — rather than the Planning Director - as the Initial. decision maker on an application for an FEP. DISCUSSION The proposed ordinance (Exhibit A) conforms to the recommendation of the Planning Commission represents what staff and special counsel believe is the most appropriate vehicle to reconcile State and Federal restrictions on. our. ability to regulate recovery facilities with the desire of the City Council to preserve the unique character of different residential neighborhoods. Newport Beach Is home to residential areas — such as the R -1.5 and R -2 zones near the beach and bay - that have a relatively high percentage of renters and a sizeable number of dwelling units that are offered as vacation rentals during the summer and to college students during the winter. These R -1.5 and R -2 zones are characterized by relatively small lots and, based on anecdotal evidence, relatively high densities. For these reasons, the proposed ordinance prohibits recovery facilities in R -1 zones (or the equivalent) and requires recovery facilities serving 7 or more occupants in the R 1 -5 and R -2 zones to obtain a Federal Exception Permit: 07/13/2004 09:33 949752214' CRLTN BRTZ KNFL CHN FAGE 07 Members of the Planning Commission and those who testified at the two public hearings suggested various amendments that would establish special development standards for recovery facilities. Staff and special counsel. are aware of .no hard evidence to support a finding that recovery facilities— other than situations involving a 'campus" - have a greater Impact on parking than other residential uses. However; we have evidence that suggests the concentration of recovery facilities in an area can increase the volume of traffic and the number of large commercial vehicles entering and leaving the area = so we have. incorporated those considerations Into the Federal Exception Permit process. We have previously offered the opinion, based on legal research, that the City does not have the authority to regulate the number of recovery facilities In a given area or require that recovery facilities be separated by a specific distance. Finally, special counsel has prepared a matrix of the recovery facility regulations adopted by neighboring Jurisdictions (Exhibit B). The proposed ordinance — which would amend provisions of the Zoning Code — does not address issues related to licenses that recovery facilities might be required to obtain under other provisions of the Municipal Code or the application of other provisions that regulate the conduct of people or require permits of certain land uses. This office and special. counsel will. be reviewing those issues separately and will provide the .City Council with an analysis sometime. in the near future. . The proposed amendments are exempt from CEQA pursuant to Section 15305 (Minor Alterations in Land Use Limitations) of the CEQA Guidelines. Su fitted by: / /Robert Burnham, City Attorney • • .07!1312004 09:33 0 • • 5457522141 CRLTN SRTZ KNFL CHN FAGc 08 DRAFT ORDINANCE NO. AN ORDINANCE OF.THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS 20.03.030, 20.05.030, 20.05.040, 20.10.010 20.10.020 and Chapter 20.91 OF THE NEWPORT BEACH MUNICIPAL CODE.RELATING TO ALL CATEGORIES OF GROUP LIVING WHEREAS, the City has adopted regulations on different types of group living_ arrangements at various times throughout the City's history; and WHEREAS, the existing regulations on group living are confusing and in need of refinement; and . WHEREAS, in light of the Fair Housing Act Amendments, 42 U.S.C. § 3601, et seq. (the "Act's, the City desires to codify its process for providing Federal Exception Perm_ its when appropriate under the Act; NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: SECTION 1. The following definitions contained in Section 20.03.030 of the Newport Beach Municipal Code are hereby amended to read as follows: 2261'066751 -MIQ 31236971 a07,06A4 "Campus" means three or more buildings in a residential zone within a 300 yard radius of one another that are used together for a common purpose where one or more of the buildings provides a service for the occupants of all the buildings such as when one building serves as a kitchen/food service area for the occupants of the other buildings. "Dwelling, multifamily° means a building containing three or more dwelling units, each of which is for occupancy by one family. "Dwelling, single - family" means a building containing one dwelling unit for occupancy by one family. "Dwelling, two family means a building containing two dwelling units, each of which is for occupancy by a one family. "Family" means one or more persons living as a Single Housekeeping Unit. The term "Family" shall include residential care, limited facilities for six or fewer mentally disabled, mentally EXHIBIT A 07/13/2004 09:33 9497522141 CRLTN 3RTZ KNPL CHN PAGE 05 disordered or otherwise handicapped persons, but no other living group not living together as a single housekeeping unit. "Single Housekeeping Unit" means the functional equivalent of a traditional family, whose members are a non- transient, interactive group of persons jointly occupying a single dwelling unit, including the joint use of common areas and sharing household activities and responsibilities such as meals, chores, and expenses. SECTION 2. The following definitions contained in Section 20.05.030 of the Newport Beach Municipal Code are hereby amended to read in their entirety as follows: 2510667;1.00 19 512369.01 AW06106 "Day -Care, Limited" means non - residential, non - medical care and supervision of twelve (12) or fewer persons on a less than twenty-four hour basis. This classification includes, but is not limited to nursery schools, preschools, and day -care centers for children (large and small family day -care homes) and adults. "Group residential" means shared living quarters 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 -[loom Occupancy (SRO) Residential Hotels, Section 20.05.050(EE)(4)). "Residential Care - Limited" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for six or fewer persons with physical or mental impairments which substantially limit one or more of such person's major life activities. This classification also includes, but is not limited to group homes, sober living environments, recovery facilities, and establishments providing non - medical care for persons in need of personal services, supervision; protection, or assistance essential for sustaining the�activities of daily living. "Residential Care, General" means shared living quarters without separate kitchen or bathroom.facilities for each room or unit for seven or more persons with physical or mental impairments which substantially limit one or more of such person's 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. 7_ 07/13/2004 09:33 949- 53 2141 CRLTN ERT7 hNFL CHN PACE 10 "Single- Family Residential" means buildings containing one . • dwelling unit located on a single lot for occupancy by one family. This classification includes mobile home and factory built housing. '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 mobile home and factory built. housing. SECTION 3: The definition of "Residential Care, General" contained in Section 20.05.040 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: "Residential Care, General" means shared living quarters without separate kitchen or bathroom facilities for each room or unit for seven or more persons with physical or mental impairments which substantially limit one or more of such person's 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. • SECTION 4. Subsection Hof Section 20.10.010 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: H. Provide public services and facilities to accommodate planned population and densities. The specific residential districts and their purposes are as follows: Residential - Agricultural (R -A) District- Provides areas for single - family residential and light 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 limiting occupancy to one family. Restricted Two Family Residential (R -1.5) District. Provides TOfor sin � family and family residential land uses with gros3oor area of sibuildings limited to a maximum T floor area ratio of 1.5 times the buildable area_ • Tw ?Family Residential (w -2) District_ Provides areas for • single - family and two family residential land uses. 26 176 615 1 -00 59 512769.01 a0A0610� -�- 67/13/2964 69:33 9497522141 CRLTN BRTZ KNPL CHN PAGE 11 Multifamily Residential (MFR) District. Provides areas for • single - family, two- family, and multiple family residential land uses. SECTWN 5. Section 20.10.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 10.10.010 Residential Districts: Land Use Regulations. The following'schedule establishes. the land usesdefi.ned iii. Cbapter:20.05 as permitted or conditionally permitted in residential districts, and includes special . requirements, if Any, applicable.to specific uses. The letter "P.',' designates use classifications permitted in residential districts. The letter. "L7 designates ii3e classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided.in Chapter 20.91. The letters "PD/V' designate use classifications permitted on approval of a.use permit issued by the Planning Director, as provided in Chapter 20.9 i. The letters "P/UP" designate use classifications which are permitted when located on the site of another permitted use, but which requires use permit when located, on the . bite of a conditional use. The letters RA-designates use classifications for which a Federal Exception P=iit must fast be obtained pursuant to Ofapfer 20.91. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. 1 Residentlal Districts: Land Use Regulatiouv P - Permitted UP - Use permit PD/U = Use permit issued by the,Planning Director i L = Limited (see Additional Use Regulations) FEP - Federal Exception Permit a Not Permitted _1 R -A -- _. !t 1 R -1.5 _ _w .R -2 ER Additional) Regulations — J RESIDENTIAL - - -_.. 4 (A), (13). (C) I j Day -Care, Limited - -- - -1P__- � �IP —� J � Group Residential - — - 1 Residential Care Limited eaidential Care General Single family Residential - �Ip 11P j P I (D) (E) (M) i Multifamily Residential (- I -- ((D) Two - Family Residential _ �r n - . 761:066151 -0Q59 51])69.01 o0I /06104 -4- BLIC AND SEMI-PUBLICJ� _� �� - J i (A) B) (C) 4 07l13i2004 09:33 9497522141 CPLTJ 5RTZ KNFI CHN PAGE 12 l;emeteries Clubs and Lodges Convalescent Facilities ay Cale, General Government Ofirces�f__�� L 2 C 112 _�L Z p L_2 - - -- Up �- - UP —��- Hospitah I Park and Recreation Facilities Public Safety Facilities Religious Assembly - III I— Schools, Public and Private �J�. ��� 11 j1UP UP UP ��Q�� . -- -- 11UP C — Up UP JUP -��7 UP _� tJP UP - tilidcs; Majo[ �. Utilities, Minor COMMERCIAL USES Horticulture Limited. .__ ;Nurseries : cle/Fquipment Sales and i .,vices Commercial Parkin Facility i - -- j t 3 l__. .._ 11...._— �L -3� 11..._..,...• L 3 -- �__.,...._.__. (B) (C) +_____ --� -- Visitor Accommodations -Bed and Breakfast Inns I -SRO Residential AGRICULTURAL AND�� EXTRACTIVE USES J imal husbandry Crop Production Mining and Processing PD/ p L� I L-0 L� L� JJ L 4 (H) i CCESSORY USES �--� (A), (B), (C) Accessory Structures and Uses _._.__.. .____.._..__....__.�___.- p/LIp P/[JP Pp/ -Up-- 1. -__- P/UP �F P/UP TENIPORARYUSES (� ' -- cures and Ca rnivals j - p `I p , p rP— —� -- - IF. K) 26 11066751-0039 512369.01 007 /06Ve -5- 07/13/2004 09:33 9497522141 ng,_Limited Sales Estate Residential Districts: Additional Laud Use Regulations CRLTN EPTZ KNPL CHN P PAGE 13 L -1: Twenty (20) acres minimum. L -2: Limited to yacht clubs, use permit required. L -3: Public or no fee private lots for automobiles may be permitted in any residential district adjacent to any commercial or industrial district subject to the securing of a use permit in each case. L -4: See Chapter 20.8 1, Oil Wells. L -5: Subject to the approval of the Planning Director. (A): See Section 20.60.025, Reloratable Buildings. (B): See Section 20.60.015, Temporary Structures and Uses. (C):, See Section 20.60.050, Outdoor Lighting. . (D): With the exception of uses in the R -1 Zone, any dwelling unit otherwise permitted by this Code may be used for short term lodging purposes as defined in Chapter 5.95 of the Municipal Code subject to the securing of:. 1: A business.license pursuant.to Chapter. 5.04 ofthe Municipal Code. 2. A transient occupancy registration certificate pursuant to Section 3.16.060 of the Municipal Code. 3. A short term lodging permit pursuant to Chapter 5.95 of the Municipal Code. (E): Set Chapter 20.85, Accessory Dwelling Units. (k): See Section 20.60.110, Bed and Breakfast Ions. (G): Keeping of Animals in the R -A District. The following regulations shall apply to the keeping of animals in the R -A District: 1. Large Animals. The keeping of large animals (as defined in Section 20.03.030) shall be subject to the following regulations: a. Horses. Onr horse may be kept for each ten thousand (10,000) square feet of lot area, up to a maximum of three horses; provided, the hone or horses are kept for recreational purposes only. The keeping of four or more horses for recreational uses shall require a use pennit issued by the Planning Director. The keeping of horses for commercial purposes shall require a use permit issued by the Planning Commission. b. Other Large Animals. Other large animals, including goats, sheep, pigs and cows, maybe kept on lots of fifteen thousand (15,000) square feet or more and tbe.mrmber shall not exceed two adult animals of any one species. C. Total Number Permitted. The total number of large animals shall not exceed six. Offspring are exempt until such time as they are weaned. 2. Domestic and Exotic Animals_ The number of domestic and exotic animals (as defined in Section 20.03.030) shall not exceed six- Offspring are exempt up to the age of three months. The keeping of four or more dogs over the age of three months shall require a kennel license pursuant to Section 7.04.090 of the Municipal Code. The keeping of wild animals shall require a permit pursuant to Chapter 7.08 of the Municipal Code. 3. Small Animals. The number of small animals, other than domestic and exotic animals (as defined in Section 20.03.030), shall not exceed six. Offspring are exempt up to the age of three months. 4. Control. 161A66r51 -W51 5 11509 01 007,06.04 -6- • 07 /13/2004 09:33 9497522:41 CRLTN BRTZ KNPL CHN PAGE 14 n. Domestic Animals. No such animals, except for cats, shall be permitted to • : un at large, but shall be confined, at all times within a suitable enclosure or otherwise under the control of the owner of the property. b. Other Animals. No animal, other than domestic animals, shall be permitted to run at large, but shall be confined, at all times within a suitable'enclosure. (H): See Chapter 20.8 1, Oil Wells. (1): See Section 20.60.100,:Home Occupations in Residential Districts. (n: See Section 20.60.055, Heliports and Hetistops. (K): Special event permit required, see Chapter 5.10 of the Municipal Code. (L): See Section 20.60,120, Personal Property Sales.in Residential Districts. (M): See Section 20.60.125, Design Standards* Mobile'Hames on Individual Lots. • SECTION 6. Section 20.91.0 15 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.015 Use Permit, Variance, or Federal Exception Permit Requisite to Other Permits. Na building: permit orcertificate of occupancy shall be issued in any case where a use permit, variance, or FederalException Permit-is required bythe terms of this code unless and until such use permit, variance or Federal Exception Permit hat been granted by the Planning Director or die Planning Commission or by the affirmative vote of the City Council on appeal or review and then only in accordance with the terms and conditions of the use permit, variance or Federal Exception Permit granted. SECTION 7. Section 20.91.020 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.020 Application for Use Permit, Variance, or Federal Exception Permit. An application for a use permit, variance, or Federal Exception Permit shall be filed in a manner consistent with the requirements contained in Chapter 20.90, Application Filing and Fees. SECTION 8. Section 20.91.025 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 161 M66751A 59 5127o9.01 n07�06. 20.91.025 Duties of the Planning Director and the Planning Commission. A. Authority. The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits, variances and Federal Exception Permits, unless the authority for :/A 07/13/2004 09:33 9497522141 CRLTN 3RTZ KNPL CHN PAGE 15 an administrative decision on a use permit is specifically assigned • to the Planning Director in the individual chapters of this code. t Exception. The City Council shall have final decision- making authority on the applications for use permits, variances and Federal Exception Permits filed concurrently with amendments to the general plan, zoning code, or a planned community development plan or with a development agreement. B. Rendering of Decision. After the conclusion of the hearing on any application. for a use permit, variance or Federal Exception Permit; the Planning Commission shall render a decision within thirty -five (35) days. Where the authority for an administrative decision on a use permit is assigned to the Planning Director, the Planning Director shall render a decision within fourteen (14) days of the acceptance of a completed application. C. Report to the Planning Commission. Upon rendering a decision on a use pennit, the Planning Director shall report to the Planning Commission at the next regular meeting or within fourteen (14) days of the decision, whichever is appropriate. D. Notice of DecisiorL Upon the rendering of a decision on a use permit by the Planning Director, a notice of the decision shall be mailed to the applicant, and all owners of property within three •'` hundred (300) feet of the boundaries of the site. SECTION 9. Section 20.91.030 of the Newport Beach Municipal Code is hereby amended to read in its entirety as follows: 20.91.030 Notice and Public Hearing. A. Public Hearings. The Planning Commission shall hold a public hearing on an application for a use permit, variance,. or .. Federal Exception Permit . Public hearings are not required for applications where the authority for an administrative decision on a use permit is assigned to the Planning Director. B. Timing of Hearings. A public hearing shall be held on all use permit, variance, and Federal Exception Permit applications, except as otherwise provided in this chapter, within sixty (60) days after the acceptance of a completed application. The Planning Commission gireetei-shall have the ability to review an application for a Feasenn.hle Federaxcepti9r] Permit regardless of whether this code specifically provides for such a Federal Exception Pen-nit when otherwise •_. required by state or federal law. 26IN66751.0059 512369.01 .07,06d4 - "R- 07/13/2004 09:33 9497522141 CRLTN ERTZ KNPt_ CHN C. Required Notice. Notice of a public hearing or an • administrative decision shall be given as follows: 1: Mailed or Delivered Notice. a. Residential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three-hundred (300) feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least ten days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within three hundred (300) feet, excluding intervening rights -of -way and waterways, of the boundaries of the site, as shown on the last equalized assessment T1311 or, alternatively, from such other records.as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section_: • 2. Posted Notice. Notice shall be posted in not less than two conspicuous. places on or close to the property at least ten days prior to the hearing or the administrative decision, 3. Published Notice. Notice shall lie published in at least one newspaper of general circulation within the City, at least ten days prior to the hearing. D. Contents of Notice. The notice of public hearing or of the decision of the Planning Director shall contain. 1. A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing or of the purpose of the administrative decision; 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard at the planning hearing and an • explanation of their rights of appeal in the case of an administrative decision. 261/066757.0059 512]69.01 007M&6 -U- PAGE tb 07/1312004 09 :33 9497522141 CRLTN BRT7 KNPL CHN PAGE 17 E. Continuance, Upon the date set for a public hearing before • the Planning Commission, the Planning Commission may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. SECTION 10. Section 20.91.035 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.035 Required Findings. The Planning Commission or the Planning Director, as the case may be, &hall approve or conditionally approve an application for a use permit, variance, or Federal Exception Permit if, on the basis of the application, plans., materials, and testimony submitted, the Planning Commission or the Planning Director finds: A. For Use Permits. 1. That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located; 2. Thaf the proposed location of the use permit and the proposed conditions under.which it would be operated or maintained will be consistent with the general plan and the purpose •`:' of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city; 3. That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. B. For Variances. 1. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification; 2. The granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant; 261!066751 -0059 12769.01 .07ID6•04 - I Q- 07/13/2004 03:33 9497522141 CRLTN ERTZ KNPL CHN PACE 18 J. The granting of the application is consistent with the • " purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district, 4.. The granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. C. For Federal Exception Permitsl 1. The Federal Exception Permit sought is handicapped - related. 2. The applicant has demonstrated that the :living group residing in the Dwelling functions- as a Single Housekeeping Unit as evidenced by factors :includiag,'but -not limited to a lack of tr"Mencey among. iits, mcmb;cis': For the purposes of Federal Eirception Permits in other than the 'R -1 zone, a lack of transkncey • shall mean the household does not change more than 50% of its members in any given calendar year. 3. The Federal Exception Pertiiit neither requires a fundamental alteration in the nature of a program affected by the Federal Exception Permit nor imposes an undue financial or administrative burden on the City which creates a» undue hardship on the City. To the extent authorized by law, the factors the Planning Commission, or the City Council on review or appeal may consider the following in deciding whether to grant a Federal Exception Permit include, but are not necessarily limited to: W whether vehicular traffic congestion in the neighborhood would be increased to an extent that would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; z A "Federal Exception Permit" is the name of the permit and application process necessary to obtain a reasonable accommodation" as that term is used in ihr Fe�Pral Fair Housing Art 4jmendments (FHAA) and the case w implementing the FHAA The application for a Federal Exception Permit shall be approved unless the evidence in the administrativ record r aFedera one of the findings for dcuig 261'066751-0059 M369.01 2]69.01 907106,04 07/13/2004 09 :33 9497522141 CRLTN BRTZ KNPL CNN FACE 19 (ii) whether the nature of vehicular traffic, such as the . frequency or duration of trips by commercial vehicles, would be altered to a such an extent that it would be contrary to, or violate, any relevant provision of the Newport Beach Municipal Code if the Federal Exception Permit was approved; or (iii) whether development or use standards established in the Newport Beach Municipal Code and that are applicable to other residential uses in the neighborhood would be violated; or (iv) whether a Campus would be established in a residential zone if the Federal Exception Permit were granted; SECTION 11. Section 20.91.0 40 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C relating to Federal Exception Permits. 20.91.040 Conditions of Approval. The Planning Commission or the Planning Director, as the case may be, may impose such conditions in connecti on with the granting of a use permit, variance,, or Federal Exception Permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such-conditions are being or will be couipTied with Such" conditions may incluiie requirements for off -street parking facilities as determined in each case. SECTION 12. Section 20.91.045 of the Newport Beach Municipal Code is hereby amended by adding new subsection C relating to Federal Exception Permits. 20.91.045 Effective Date. Use permits, variances, and Federal Exception Permits shall not become effective for fourteen (14) days after being granted, and in the event an appeal is filed or if the Planning Commission or the City Council shall exercise its right to review any such decision under the provisions of Chapter 20.95, the permit shall not become effective unless and until a decision granting the use perrmt;.variance or Federal Exception Permit is made by the Planning Commission or the. City Council. $ECTION 13. Section 20.91.050 of the Newport Beach Municipal Code is hereby amended by adding a new subsection C. relating to Federal Exception Permits. 20.91.050 Expiration, Time Extenslon,.Violatlon, Discontinuance, and Revocation. A. Expiration. Any use permit, variance, or Federal Exception Permit • granted in accordance with the terms of this code shalt expire 261:p667! J. 059 517369 "01 u0706� -12- 07/13;2004 09:33 9497522141 CFI_TN EFTZ KNFL CHN PAGE 20 within twenty-four (24) months from the effective date of approval • or at an alternative time specified as a condition of approval unless:: .. . 1. A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. In eases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit- B. Time Extension. The Planning Director may grant a time extension for a use permit, variance, or Federal Exception Permit for a period or periods not to exceed three years. An application for a time extension shall be made in writing to the Planning Director no less than thirty (30) days or more than ninety (90) days prior to the • expiration date: C. Violation of Terms_ Any use permit, variance, or Federal Exception Permit granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such use permit, variance or Federal Exception Petmit:ire violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A use permit, variance, or Federal Exception Permit shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. E. Revocation.. Procedures for revocation shall be as prescribed by Chapter 20.96, Enforcement, SECTION 14. Section 20.91.055 of the Newport Beach Municipal Code is hereby amended relating to Federal Exception Permits. 20.91.055 Amendments and New Applications. A. Amendments. A request for changes in conditions of approval of a use permit, variance, or Federal Exception Permit or a change to plans that would affect a condition of approval shall be treated as a • new application. The Planning Director may waive the requirement 261!066751-0o59 51:569.01 WWU&N - t 3- 07/13/2004 09:33 9497522141 CRLTN BRTZ KNPL CHN PAGE 21 for anew application if the changes are minor, do not involve substantial alterations or additions to the plan or die conditions of • approval, and are consistent with the intent of the original approval. B. New Applications. Ilan application for a use permit; variance, or Federal Exception Permit is disapproved, no new application for the same, or substantially die "same, use permit, variance or Federal Exception Permit shall be'Slea a within one year of the date of denial of Elie initial application unless. the denial is made without prejudice. C� 2614M6751-0o R 512369.01 A7;n6,w -14- .07/13/2004 09:33 94 07522141 CRLTN BRT7 KNPL CHN PAGE 22 Bob Burnham, City Attorney, City of Newport Beach • July 6, 2004 Page 2 as a "Referral Facility." A Referral Facility is a Residential Care or Residential Service facility where one or more of the person's residency in the facility is pursuant to a court order or directive from an agency in the criminal justice system. The category does not, however, include state license facilities containing 6 or fewer persons. Referral Facilities are prohibited in the City's R -I zone and permitted by conditional use permit in all of the City's other residential zones. (Costa Mesa Municipal Code § 13 -30.) III. Cif of Laguna Beach The City of Laguna Beach does not expressly regulate sober living homes, residential treatment facilities or other group homes. The city does, however, limit . residency to "families," defined as "an individual or two or more persons related by flood, marriage or adoption, living together or a group of not more than six persons (excluding servants) not all of whom are related by blood, marriage or adoption but all of them are living together as a single housekeeping unit within a dwelling so that all persons within the unit maintain free access to all living spaces within the dwelling. (Laguna Beach Municipal Code § 25.08.012.) Under state law, all residential care facilities and alcohol rehabilitation-facilities serving 6 or fewer persons would • therefore be permitted in all the City's residential zones. It is unclear how the City regulates residential care facilities, group.homes or alcohol recovery facilities serving 7 or more. 261 :D66751 -0059 507735.01 a06/16,04 07/13/2004 TO: a - :33 FROM:. DATE: FILE NO.: RE: ;451522141 CRLTN BRTZ KNPL CNN MEMORANDUM Bob Burnham, City Attorney, City of Newport Beach Jeffrey A. Goldfarb July 6, 2004 066751 -0059 Nearby Cities' Mechanism for Regulating Sober Living Environments PAGc 23 You have asked that we review the mechanism that adjoining cities use for the regulation of sober living facilities. We have reviewed.the Municipal codes for the Cities of Costa Mesa, Irvine and Laguna Beach. Below is a discussion of each city's regulatory approach. I. City of Irvine . . The City of Irvine defines a sober living facility "as any house,' institution„ hotel or similar place that provides room and board, or rooms only, and operates as a drug and alcohol free residential facility.'.. (Irvine o.ning Ord. § 1- 2 -1.). Irvine permits sober living facilities in all residential zones with the exception of the "estate density "residential zone'. (one house per acre) without regard to the number of persons the facility serves and without regard to whethei the residents are living together as a single housekeeping unit.: (Irvine Municipal Code § 3 -3 -1.) Irvine also includes regulates a.category. of uses entitled "Residential Care facilities," (Irvine Zoning Ord. § 1 -2 -1.) which are defined as "any family home, group care facility or similar facility providing 24 -hour non - medical services, supervisions or assistance essential for sustaining the activities of daily living. Residential Care facilities includes shelters, board and care facilities, half way houses, wards of the juvenal court and the like and excludes Sober living facilities." (Id.) The Irvine Zoning Ordinance allows Residential Care facilities in all residential zones with a Conditional Use Permit. (Irvine Municipal Code § 3 -3 -1.) Because Residential Care facilities expressly exclude all "Sober Living Facilities;' the Irvine Zoning Ordinance would allow all drug and alcohol free group living facilities, in every residential zoned as a matter of right without regard to number of residents- II. City of Costa Mesa Costa Mesa includes sober living facilities within the definition.of residential care facilities (which are state licensed facilities), and residential service facilities (which are not state licensed facilities). Residential Care and Service facilities serving 6 or fewer are permitted in all of the city's residential zones. (Costa Mesa Municipal Code § 13 -30.) Residential Care and Service facilities serving 7 or more are prohibited in the City's R -I zone, and conditionally permitted in all other residential zones of the City. (Costa Mesa Municipal Code § 13 -30.) The City Code also contains a special category of Residential Care and Service facilities referred to 261 /066751 -0059 307735.01 306116.0+ V V U T D M U 0 • • 07/13!2004 09:33 9497522141 CRLTN BRTZ KNPL CHN LAW OFFICES OF DANIEL C. CARLTON 2600 MICHELSON DRIVE, SUITE 1120 IRVINE, CALIFORNIA 92612 • • FACSIMILE TRANSMITTAL SHEET TO FROM: Robert Bumham, .Esq. Daniel C. Carlton COMPANY: DATE: - City of Newport Beach 07/13/04 FAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER: (949) 644 -3139 23 PHONE NUMBER: (949) 644 -3131 RE: Narconon Southern California NOTES /COMMENTS: PAGE @i PLEASE NOTE_ If you do not receive the whole transmission or if you have any difficulty reading the pages, please contact Heather at (949) 757 -0707. THE INFORMATION CONTAINED IN THIS FACSIMILE 13 INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WH(C4 IT 13 ADDRESSED AND MAY CONTAIN INFORMATION THAT 13 PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPY OF THIS FACSIMILE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS FACSIMILE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU FOR YOUR COOPERATION. 2000 WC:1ElSON DRIVE. SUITE ,120 IRVINE. CALIFORNIA 72912 TELEPHONE: (949) 757 -0707 FACS ;MILE' I5a ?i 752 -2141 N^r4CfJYN0N0 SOUTHERN CALIFORNIA July 27, 2004 City of Newport Beach City Council 3300 Newport Blvd. Newport Beach, CA RE: AGENDA ITEM 4, July 27, 2004 Council Meeting Dear Sirs: I am sending you this packet to better inform you on the National Drug Control Policy of the Office of the President and to give you some examples of the many cases cities have lost trying to restrict group homes and the disabled, of which people in recovery qualify. Sincerely, • Gerry M6rshall, President CC: Jon Stearman, Narconon City Manager, Newport Beach City Attorney, Newport Beach )RUG AND ALCOHOL EDUCATION AND REHABILITATION SERVICES 810 WEST OCEAN FRONT, NEWPORT BEACH, CA 92663' PHONE (800) 876 -6378 - FAX (949) 675 -8991 NARCONON Southern California is a non -profit public benefit corporation www.addictionca.com CSP,Inc. (9491250 -0891 P.3 0 s��r +�' . i EXECUTIVE OFFICE OF THE PRESIDENT �' OFFICE OF NATIONAL DRUG CONTROL POLICY �» Washington, DC 20503 Dear Friends and Colleagues: One of our nation's most important concerns is addressing alcohol and drug use disorders. President Bush has made it a priority to expand treatment options for those in need_ This September, during the 15'4 annual National Alcohol and Drug Addiction Recovery Month (Recovery Month). the White House salutes those in recovery and the treatment providers and recovery support program officials who have contributed to their successes. Recovery Month recognizes the crucial role of alcohol and drug treatment programs in our fight to promote recovery. This year's theme — "Join the Voices for Recovery ... Now!" — is intended to encourage support for effective and coordinated treatment and recovery services for those in need. To encourage the availability of effective treatment, President Bush has created a new initiative known as Access to Recovery. This effort will help thousands of people gain access to the type of treatment for alcohol and drug use disorders that works best for them. Your work at the local level is vital to improving Americans' access to treatment programs. During Recovery Month and throughout the year, you contribute greatly to highlighting the benefits of alcohol and drug use disorder treatment. On behalf of the President, I thank you for your ongoing commitment to help those with alcohol and drug use disorders and their families overcome barriers to treatment and recovery. With your help, we can guide more Americans through the recovery process and affect positive change in our society. Sincerely, O � ji; Fr John P. Walters Director • • • National Fair Housing Advocaj Online • .ter.,`° 17'.-r i News Archive Old Headlines Press Releases Print Advocate Action Alerts Discussion - e Forums The Guest Room — Resources Get Help Near You Events Job Li5Ungs links Book Club Sponsor Page 1 of A project of the Tennessee Fair Housing Councif Nat onaf Fair Housing search: y.p Online L� Adv ca `e search March 1998 only t.J Pl: FiAQ Biome about D2FtiA© ;forums j go to ativaacetl searcM1 contact as search help City f Fresno, California agrees to $535,000 in Ju tice Department disability disc "mination case The city Fresno, California will pay $535,000 and will no longer oppose the renovatio of an apartment building which will provide housing for persons with mental d4abilitiesunder an agreement reached with the Department of Justice in April. The settlementresolves a fair housing complaint filed by the Justice Departure t which alleged cityofficials' actions had denied housing opportunities to persons bosed on disability. building member opposed allowing mentally disabled tenants to live in • Trai ing fors employees and officials to ensure they will not discriminate agar with disabilities in the future; • $44 ,000 in grants to help pay for the renovation of the Cedar Heights apa, mentwcildirg; • $85, 00 to cover the plaintiffs' legal costs; • $5,0 0 to cover the housing costs of the man who could not move into Cedar Heig is whilerenovation was delayed; . A corlpmunity outreach program to inform the public about services and bene its availableto Fresno residents with disabilities; and • Are iew of Fresno's current housing programs to determine if any changes are n ed toaccommodate persons with disabilities. City vioiat6d law by 'going along' with Council member's plan to keepdisabl� d persons out According tj the Justice Department, the City violated the Fair Housing Act and othercivil rights laws when its officials went along with one council member's campaign tol Iceepper5ons with mental disabilities out of Cedar Heights. The Coundlmar, : °ho'^ no longer onthe Council, wanted guarantees that the tenants at Cedar Heights would not "exposethemselves" or defecate on his constituents' lawns. With ut that guarantee, the mansaid that he would burn the building down. • The City's a ions not only denied housing opportunities to potential tenants at CedarHeigh : they also forced a man ready to move in to find other suitable httpalwww.fairhousing.comlindex. ?method�page.display &pageID =3270 7/2512004 OT'd 5690Z8LO9LT 093I0 WUS WOW03b)3W d00 =90 10 9Z Inr A private I wsuit, filed by a California man and two Fresno non - profit agencies, —Legal Research wasalso ed under the agreement. The agencies, Family Alliance for the Case Database Mentally II antlAffordattle Homes, Inc., had sought to renovate a 22 -unit vacant Recovery Database Complex. ey met withstiff opposition from a Fresno city council member when it • was learn that mentallytlisabled persons would live in the renovated building HUD Settlements • called Ced r Heights. Statutes and Ren's Articles Untler the ettlement agreement, the city agreed to provide the following: HUD Resources • Trai ing fors employees and officials to ensure they will not discriminate agar with disabilities in the future; • $44 ,000 in grants to help pay for the renovation of the Cedar Heights apa, mentwcildirg; • $85, 00 to cover the plaintiffs' legal costs; • $5,0 0 to cover the housing costs of the man who could not move into Cedar Heig is whilerenovation was delayed; . A corlpmunity outreach program to inform the public about services and bene its availableto Fresno residents with disabilities; and • Are iew of Fresno's current housing programs to determine if any changes are n ed toaccommodate persons with disabilities. City vioiat6d law by 'going along' with Council member's plan to keepdisabl� d persons out According tj the Justice Department, the City violated the Fair Housing Act and othercivil rights laws when its officials went along with one council member's campaign tol Iceepper5ons with mental disabilities out of Cedar Heights. The Coundlmar, : °ho'^ no longer onthe Council, wanted guarantees that the tenants at Cedar Heights would not "exposethemselves" or defecate on his constituents' lawns. With ut that guarantee, the mansaid that he would burn the building down. • The City's a ions not only denied housing opportunities to potential tenants at CedarHeigh : they also forced a man ready to move in to find other suitable httpalwww.fairhousing.comlindex. ?method�page.display &pageID =3270 7/2512004 OT'd 5690Z8LO9LT 093I0 WUS WOW03b)3W d00 =90 10 9Z Inr National Fair Housing Advcxa Online Page 2 of 2 housing while therenovation was held up. • Cedar eights renovation will address Fresno's need for affordable housing lormen lly disabled http://www.fairhousing. Charles [evens, the JS Attorney in Sacramento, said that opposition to housing for thedi bled was "counterproductive." He went on to say, "Everyone agreed that he roposed renovation of Cedar Heights will help address the lack of afforda'd 1p housingfor people with mental disabilities in Fresno. We 're glad that the city and he non- profitagencies will be able to devote their time and resources to the reno anon, instead ofiltigation." Isabelle atz Pinzier, Acting Assistant Attorney General for Civil Rights, agreed withStev ns. "Stereotypical attitudes should not stand in the way of the right of peopiew" h mental disabilities to find an affordable place to live.' She later added, "1 a are pleased that the City agreed to work out our concerns." Pro[ectio and Advocacy, Inc., Mental Health Advocacy Services, the Western Center o wand Poverty, Central California Legal Services, and Fresno attorney Jack Dan, Irepresented the plaintiffs in the private lawsuit against the city. Jack Dan: t, tshc wcrks with Central Califomia Legal Services commented, "A'IMBY;s, is on the upswing and politicians are demagoguing behind it. Now is the time for a vocatesto dig in. The law is good. Dig in and fight like hell and we'll win." from June 1997 Advocate - ------------- ------- --------- ---- --- -------- • ------- -- -------- --- --- ---- --- 10 TT'd 5690ZBL09LT 093I9 FJkl9 FJOFJ002IHFJ 725/2004 d10:90 b0 9a Tnr C1 J National Fair Housing M :.:_.. , Wit• =.,: ,: -_..-. , ::;:.... Discussion - 'Vessage Forums The Guest Room — Resources Get Help Near You Events Job Listinas Links Book Club Sponsors -Legal Research • Case Database Recovery Database HUD Settlements - Statute; and Regs Articles HUD Resources • httpJ/www Online Page 1 of 1 A project of the Tennesseg Fair Housing Council search: onal Fair Housing go aeate Online search September 1998 only Home I about NFHAO ! forums J go to advanced searchn us search he!, < Df Taylor, Michigan agrees to pay 1,000 for refusing to rezone adult ential care center In yet an ther instance where a city's government has been accused of denying housing r ghts to its disabled citizens, another large settlement has been reached. The city 0 Taylor, Michigan has agreed to pay $550,000 to settle a discrimination lawsuit filod by the owners of a residential facility for disabled adults. According to the lawsuit, Taylor officals had refused to allow the facility to house more tha six residents because of zoning laws. The residential facility was in a single fa 11y area. Zoning requirements in single family areas limited the number of persons Ji 'ng together to six. When the facility asked that their property be rezoned t allow 12 residents, Taylor officals said no. Both Smi and Lee Associates, the owners and operators of the facility, and the US Departure t of Justice filed separate federal lawsuits. Both lawsuits claimed that rezoning t e property to allow more residents is a reasonable accommodation under the air Housing Act's disability provisions. Taylor settled the Justice Departure t suit by agreeing to allow nine residents at the facility. Smith and Lee Associate continued its lawsuit. In Decemr 1996, the Sixth Circuit court issued a ruling on behalf of the plaintiffs, agreeing tat the city of Taylor had failed to make a reasonable accommodation. The court 41so held that the city must allow up to nine residents in adult care facilities a en if those facilities are in single family zones. Following ttie Sixth Circuit's ruling, the city of Taylor agreed to settle with Smith and Lee As iates. The cash settlement included money for lost profits, damages, attorneys' ees, legal costs, and interest. Taylor officials also agreed to an injunction Orohibiting it from interfering with the operations of adult foster care Facilities In ingie family nelghbornoods so long as they had nine or fewer residents. 7/25/2004 dLS :90 %D 92 i'P a *d 969028L09LT 003IQ IJHS IJOIJODadIJ Nat ... .. �- 3 Adv► NFf A01 contact — News Archive Old Headlines city Press Releases .55( Print Advocate Action .Alerts resit ,. > Discussion - 'Vessage Forums The Guest Room — Resources Get Help Near You Events Job Listinas Links Book Club Sponsors -Legal Research • Case Database Recovery Database HUD Settlements - Statute; and Regs Articles HUD Resources • httpJ/www Online Page 1 of 1 A project of the Tennesseg Fair Housing Council search: onal Fair Housing go aeate Online search September 1998 only Home I about NFHAO ! forums J go to advanced searchn us search he!, < Df Taylor, Michigan agrees to pay 1,000 for refusing to rezone adult ential care center In yet an ther instance where a city's government has been accused of denying housing r ghts to its disabled citizens, another large settlement has been reached. The city 0 Taylor, Michigan has agreed to pay $550,000 to settle a discrimination lawsuit filod by the owners of a residential facility for disabled adults. According to the lawsuit, Taylor officals had refused to allow the facility to house more tha six residents because of zoning laws. The residential facility was in a single fa 11y area. Zoning requirements in single family areas limited the number of persons Ji 'ng together to six. When the facility asked that their property be rezoned t allow 12 residents, Taylor officals said no. Both Smi and Lee Associates, the owners and operators of the facility, and the US Departure t of Justice filed separate federal lawsuits. Both lawsuits claimed that rezoning t e property to allow more residents is a reasonable accommodation under the air Housing Act's disability provisions. Taylor settled the Justice Departure t suit by agreeing to allow nine residents at the facility. Smith and Lee Associate continued its lawsuit. In Decemr 1996, the Sixth Circuit court issued a ruling on behalf of the plaintiffs, agreeing tat the city of Taylor had failed to make a reasonable accommodation. The court 41so held that the city must allow up to nine residents in adult care facilities a en if those facilities are in single family zones. Following ttie Sixth Circuit's ruling, the city of Taylor agreed to settle with Smith and Lee As iates. The cash settlement included money for lost profits, damages, attorneys' ees, legal costs, and interest. Taylor officials also agreed to an injunction Orohibiting it from interfering with the operations of adult foster care Facilities In ingie family nelghbornoods so long as they had nine or fewer residents. 7/25/2004 dLS :90 %D 92 i'P a *d 969028L09LT 003IQ IJHS IJOIJODadIJ National Fair Howsing Advm* Online Page 1 of 2 A project of the Tennesscg Fair Housing Council • fiat onai fair Housing search:) i90 i advocate Online search NFHAO 5TORi ES only NFHAO Home j about NFHAQ j forums i ❑ ao to advanced search c eontae us search help c News Archive Gid Headlines City, group home reach 'bittersweet' Press Releases _ Sett{ meet Print Advocate Action Alerts Home > News Archive > WHAO STORIES — Discussion By Trace McCartney Message t . National air Housing Advocate Online The Guest Room Room subdivisio for a group of its clients. The organization obtained licensing and (SEDON Ariz., July 14, 2003) --Operators of a group home in Sedona, Ariz., will — Resources receive ore than half a million dollars from the city in a settlement their attorney Get Help Near You calls a "b ersweet victory." Even The pro s for getting a conditional use permit in Sedona involves notification of Job Listings , It's "bitte weet" because, while the settlement gets the operators out of debt and Links out of a s nation that was draining their resources, it also means that they will Book C:ub abandon a site they were hoping to use for a group home for individuals Sponsors recoverin from substance abuse. —Legal Research In late 20 2, Recovery Alternatives, an organization that provides housing for • Case Database people in ecovery from substance abuse, acquired a home in Sedona's Kachina Recovery Database subdivisio for a group of its clients. The organization obtained licensing and complete renovations of the property only to be told by the city that it had to get HUD Settlements - a "conditi nal use permit" before it could open. Statutes and Regs Articles The pro s for getting a conditional use permit in Sedona involves notification of HUD Resources neighbors nd public hearings. After angry neighbors in the hearings convinced the city to to down the application for the permit, Recovery Alternatives sought legal help from he Arizona Center for Disability Law, a federally funded non -profit ACDL filed discrimination complaint with the Arizona Attorney General's office on Recovery A Iternatives' behalf in January 2003. Under the Fair Housing Act and similar Ariz na law, housing discrimination against people with disabilities is illegal. Individuals in recovery from substance abuse are considered disabled under the law, although those currently using controlled substances are not. In responslto the complaint, the city reversed itself and re- classified the home, removing a y obstacles to its opening. This, however, led the neighbors to threaten th it own lawsuit against the city. The city thep threatened to simply delay any action until a judge could sort out everyone's tights, said Diana Chen, an attorney with the ACOL. Meanwhile, ecovery Alternatives was paying interest on a line of credit it had taken out operate the home and was running into problems with agencies that had given it grants to provide housing, she said. • Even thoug Recovery Alternatives' decision to abandon the site might appear to be a victory For the neighbors who didn't want the home there, the settlement was in : :!;::::nv.'ai:hcus:ag.ccm icdex. fr.. ?method= page,display &pageu)=3294 7/25/2004 ZT•d 56902BL09LT 093ID Nus 1,101,100duw dZ0:90 tO 9Z Inc 'National FairHom;ingAdvocat Online Page 2of2 • her then "It ' best interest under the circumstances, Ms. Chen Said. was j st too poisonous a situation," she said. For th months, neighbors displayed brightly colored signs in their front yards expressi g their opposition to the home, and the operators had to look at those signs ev ry day when they visited the site, she said. Neighbo also expressed concern that the residents would be allowed off the grounds nd wondered whether their children would be safe outside, Ms. Chen said. "They (R overy Alternatives) decided their residents weren't going to feel free to even wal through the neighborhood," Ms. Chen said. The orga ization will try to find a site in a neighboring city, but there's no guarant it won't face obstacles elsewhere, she said. Under thaj settlement, the city agreed to: • pe anentry post a disclaimer in Sedona City Hall which states that d' rirnination on the basis of race, color, religion, sex, national origin, fa i'ia' status , or disability is prohibited; • off a Fair Housing training session to City staff working on housing issues; • pur hase complainant's property intended for the group home for a sum of 382,0 00.00; • pay a settlement amount of $148,334.00, which included attorneys fees and cos to the Center; and • con ne a study session of its Planning Commission in consultation with the • Cen er within 120 days of the agreement to consider revisions and am ndments to the Land Development Code and other City codes regarding plac ment of group homes and the City's obligation and duties under the fed I and state Fair Housing Acts and other laws applicable to people with disc ilities. The revisio s to the city's codes will probably involve language that will remove barriers fo housing with people with disabilities to locating in residential neighborh ds, said G. Eugene Neil, Sedona's assistant city attorney. "I think wi the change of the ordinance we will be better able to adress the application when they come in," he said. The city wil probably dispose of the property at public auction, he said. • Asked if th settlement represents a victory for the hostile neighbors, Mr. Neil cha ----z ditas "aresolutionofthesi- ----" -- --- ----- ---- - - - - --- £I'd S6902BL09LI 093IU NHS NONOONUW 7/25/2004 dz0;90 b0 9z Inr National Fair Housing A — Ne-..s Archive - Old Headlines Pan Press Releases . add Print Advocate .Action Alerts 7- Discussion Message Forums The Guest Room Resources Get Help Near You Events Jcb :is.Ungs . Unks Book Club Sponsors .—Legal Research Case Database Recovery Database HUD Settlements Statutes and Regs Articles HUD Resources http: Online Page I of I A project of the Tennessee Fair Housing Council onat Fair Housing search: ®Cate Online Home 1 about NFkA0 forums 4o to advanced heard, < � i i search help < us decries discrimination against (80 0N, May 22, 2003) A national policy panel said that people with addictio s to alcohol and other drugs face widespread stigma and discrimination in trying to access treatment and achieve recovery, Alcoholism & Drug Abuse Weeldy reported prii 21. Acco ing to the Join Together policy -panel report, people with addiction face numerou obstacles in obtaining health insurance, appropriate medical care, empioym nt, public benefits, education and training programs, and housing. "We ape the report will raise awareness of the subtle and not -so- subtle effects of legaiiz discrimination," said Anara Guard, a spokesperson for ]oin Together. "People i recovery or in treatment should not be subjected to legally imposed barriers sed solely on addiction." -- FULL STORY.6y 7ointo.gether. ors 11546 5690ZBL09LI 093Ia NHS NONOod" yid 7/25/2004 • • d00 °90 10 92 Inc • _. ' National Fair Housing Advocat`.e Online Pace 1 of 2 • ^r a :..:. A project of the Tennessee Fair Housing Council search; Nat onal l=air Housing .-I I Adv Cate Online search 7uneJuly 2x03 only NFHAG Home ; about NFHAO l forums ! go to advanced search l C contac us Search help a — News Archive - Gld Headlines Chic go Housing Authority will pay Press Releases . $32 ,000 in damages and retrofits to settle Print Advocate Action Alerts acce s complaints — Discussion - message forums - The Guest Room Lo _inco a disabled residents of Chicago will have expanded housing choice as a result of settlement agreement between Access Living of Chicago and the Chicago — Resources. Housing uthority (CHA) along with The Habitat Company. The $325,000 Get Help Near You setdem reached in February, resolves allegations that Phase I of a new public Events housing p oject in Chicago was designed and constructed without accessibility for lob Listings pens ith disabilities, In violation of the accessibility provisions of the Fair Links Housing endments Act (FHAA) of 1988 and the Rehabilitation Act of 1973. Book Club Sponsors The apart ents are part of one of Chicago's largest public housing complexes, Henry Ho er Homes. The settlement agreement mandates up to $300,000 in —Legal Research - retrofittin to remedy the inaccessible features of the property, including nine Case Database exterior r rofits and ten retrofits on the interior of the units. Attorney Jeff Taren of Kinoy, Tar and Geraghty and lawyers with Access Living's Civil Rights Team Recovery Database • negotia the settlement, which also includes $25,000 In attorneys fees and HUD Settlements damages. Statutes and Pegs Articles According o Taren, no official complaint or lawsuit was filed. Access Living was able HUD Resources to negotia the settlement prior to taking administrative action or filing a lawsuit. - Access Livi g was also able to ensure that future public housing units meet visitability tandards so that disabled visitors can get into the housing units of public hou ing residents. Interior a d exterior defects will be Fixed The requir retrofits include improvements such as ramping the front and rear steps of th apartments; adding accessible parking spaces; installing grab bars in I lowering thermostats, medicine cabinets and closet racks to accessible heights; an expanding the amount of clear space in kitchens to allow for wheelchair aneuverability. In addition to the retrofits, The Habitat Company is requires^. to �bm semiannual written repot on the status of the accessibility retro is an G e modi£ cations to Access Living, Further, The Habitat Company is required to include language regarding their commitment to accessible design and constructiol in all future requests for funding for the development of public housing. Th settlement agreement also includes extensive monitoring by Access Living of an future covered multifamily dwellings developed, built, or overseen by The Habitat Company. The access a ifamily dwellings of four or more units (public or private) built for first design and construction requirements of the FHAA apply to all covered mul occupancy o or after March 13, 1991. If the building has an elevator, the Act • mandates th t the common areas and every unit be usable by people with disabilities. z7meihod--pag-l-display&pagelD�340"z ere is no elevator, the common areas and all first floor units must http:l, .r,� ^.;.fairt0us ;rg.cer�ir.3ex. ?!2512v04 l 093IQ IJHS bIONOOaHU d20 =90 J'0 92 TnC ST -d 96900OL09LT National Fair Horsing Advocaje Online Page 2 of 2 http:/ /www 9T 'd be usab e. The Rehabilitation Act requires, with respect to new public housing, that • commo areas be accessible, five percent of the apartments be accessible to tenants ith mobility disabilities and two percent be accessible to tenants with hearing r vision disabilities. public housing units are critical to persons with disabilities Accordin to Karen Tamley, Access Living's DirecUx of Programs, "A large percen a of persons with disabilities are low- income and need accessible, aifordab housing. Because such housing is virtually nonexistent in the private sector, i w- income tenants with disabilities rely heavily on public housing. It is therefor critical that new public housing developments, like Henry Horner Homes, be built nsistent with federal civil rights laws that ensure access." Staffed a majority of people with disabilities, Access Living is Chicago's Center for Inde ndent Living. Access Living works toward the full equality, inclusion and empowe ent of people with disabilities. For more information about this or other Access Li ing cases, contact Gary Arnold at (312) 253 -7000. Accordin to an April 2003 report by the National Fair Housing Alliance, 27 percent of all ho . ing complaints filed in 2002 were based on disability. HUD's Office of Fair Housing Ind Equal Opportunity reported that it took more complaints based on disability an any other type. 1 • fin ?method=page.display &pageID =3405 7/25/2004 dE0:90 b0 92 Inr S6902BL09LI 003IQ NkiS NON0021klN National Fair Housing Advoca a Online Page 1 of 2 A project of the Tennessee Fair Housing council • 1 Nat onai Fair Housing search: ;go! cate Online search September 1992 only r !!Cl ! Ai Home I about NFHAO !forums i 90 to advanced search a eonta us search help < — News Archive' Did Headlines Sett ement's legal costs pegged at $300,000 Press Releases _ Home > News Archive > The Advocate > September 1992 Print Advocate Action Alerts Although a federal judge sealed settlement terms Feb_ 28 in the city's housing — Discussion discrimin tion suit against Baird & Warner Inc., the city received $450,000 the same da . Message Forums _ The Guest Room „The $45 ,000 has been deposited into the general fund," said city finance director Bob Shon . — Resources- Get Help Near You Consid general revenue, as are fines, taxes and licenses, the money will help Events pay for g neral services such as fire and police, he said. Job Listings Links Book C:ub According to the office of Herbert Hill, the sty's first corporate counsel, legal fees Sponsors paid to th Chicago firm of Keck, Mahin & Cate to wage the three -year lawsuit -- amounted to $300,000. —Legal Research Case Database Baird & W rner is one of five real estate agencies charged in February 1989 with • Recovery Database violating E anston's fair housing laws. The city pursued two of those cases, settling with Cent ry 21 Shoreline in 1990 for $200,000. HUD Settlements Statutes and Regs At the Eva ston Neighborhood Conference Saturday a Chicago open housing Articles advocate q estioned the 30 -month seal on the lawsuit settlement terms, to which HUD Resources the city ag eed. "I am very urious as to haw it was resolved, said Kale Williams, executive director of the Lead rship Council for Metropolitan Open Communities. "I think it was a mistake th t the settlement Was sealed." In a teleph ne conversation Monday, Williams explained that the settlement is one of the larg amounts in housing bias suits, probably the largest made to a "It would b to the top ten in size of settlements of fair housing around the country," sad Williams, who spoke to Evanstonians Saturday about the need for affirmative gional marketing of housing for minorities. "I think whete a public body is involved, it is inappropriate for it not to be public information,T Williams said. The three -y r suit arose from a testing audit by the Interfaith Housing Center of the Northern Suburbs, not from the direct Complaint of a prospective renter /home buyer. • Owen Thoma , executive director of Evanston's Human Relations Commission, which enforc the fair housing ordinance, would not comment directiy on the h tp: /lvv.ti.v.faiil ousiag.can 5ttdexc ?:ne'u ed= page.displ.ay &pageLlD =3452 ?/25;2004 LI'd 569028L09LT 093Ia NHS NONO32IHN de0:90 i3O 9Z Inr National Fair Noising http: / /www. BT'd Page 2 of 2 sealed t • "People houid have the right to know, but the judge ruled on it and that's that," Thomas aid. "It's a done deal." Before Oe case was dosed, Thomas noted a nationwide problem of "treating minoriti s as second -class citizens." "I'm talkjng about job discrimination arid housing discrimination," he said. "Race re tions in Evanston need to be improved." But discrimination, he said, is not alwa "all black and white." Calling ' greater sensitivity," Thomas said discriminat on encompasses Hispanic and othe enic groups. "I think t e beauty about our situation in Evanston is that historically, we have always h d the wherewithal to address these issues." The court seal was lifted later. Tile city said, "the Evanston Human Relations Commissi n is vigilant In its efforts to protect and enforce the rights of all individu4 to equal housing opportunities. The Evanston Fair Housing Ordinance reflects ft commitment of Evanston's citizens and City Council to maintain open housing t4roughout our community ". • IfTn?method�aRe.disDlav&i3ageID--3452 7/25/2004 db0:90 b0 92 Tnr 96902BL09LT 093IQ NdS NON0321kIN National Fair Housing AdvocatJ Online Page I of 3 !6 News Archive Old Headlines Press Reieases Print Advocata Action Alerts Discussion Message Forums ibe Guest Room 1 A project of the Tennessee Fair Housing Council search: National Fair Housing �! Adv Cate Online search Press Releases only Li NFHAO ome I about NFHAO ; forums 00 to advanced search < contact us search help < City Of Sedona Settles Housing mination Complaint nonce > News Archive > rress Releases RELEASE: — Resources (Phoenix) Get Help Near You (Tucson) Andrew M. Mudryk Diana Ch Events Director of Litigation & Equal Ju ce Works Fellow Sob Listings . Advocacy Arizona C ter for Disability Links Arizona Center for Disability 5cek Club (520) 327 9547 Law Sponsors (602) 274 -6287 —Legal Research CITY F SEDONA SETTLES HOUSING DISCRIMINATION COMPLAINT Case Database • Recovery Database (SEDONA, riz., July 14, 2003) -- Recently, the City of Sedona agreed to settle a housing di crimination complaint, brought by Recovery Alternatives, Inc. and Anne HUD Settlements Cunningha , Its Executive Director, both represented by the Arizona Center for Statutes and Regs Disability Law (the Center). The January 2003 administrative complaint, filed with Articles the Arizon Attorney General's Office, alleged that the City violated the Arizona Fair HUD Resod. ces Housing A when its Land Development Code thwarted efforts of a group home for individuals with disabilities from operating In a Sedona residential neighborhood. Recovery tematives and Ms. Cunningham sought to establish a group home designed t help individuals, who have eased using controlled substances, recover from acidi on and begin anew. After purchasing a house in Seciona's Kachina Subdivisto obtaining all necessary state licenses, and completing significant renovation on the property, the group home ran into a road block when the City of Sedona sed to permit operation until the City issued a Conditional Use Permit (CUP). "Un er the federal and state Fair Housing Acts, people who are addicted to alcohol or ntrolled substances but who are not currently using are considered individuals ith disabilities and are protected from discrimination," stated Diana Chen, one f two attorneys at the Arizona Center for Disability law (the Center) rep senting Recovery Alternatives, Inc. and Ms. Cunningham. "This means municipaliti like Sedona can't make it more burdensome for people with disabilities live in the neighborhood of their choice," explained Chen. in Nov em' ' r 2002, the Center was contacted by ids. Cunningham when the group home's ad 'nistrators were experiencing problems with Sedona land use provisions that requir group homes to obtain a CUP before operation. The City originally classified th home as a "group dwelling" subject to a public notification and a citizenship rticipation process. Therefore, according to the Sedona Land Developme Code, Recovery Alternatives was required to notify all land owners • within 300 f et of the property and endure a citizen participation process before the City would nsider granting the CUP. ht1 p :,' /v,—vAv.fzirhoasing.comVinde frl? method =page display pagc,r• --32015 7,125/21.104 i,•d SGgOEBLOSLi 093I0 IJHS IJO1,100Y1H1,1 dLS =SD bD 9Z i�C National Fair Housing Advocatg Online Page 2 of 3 .0 ondit i al Use Permits chaare commonly used by municipalities to deal with property • usages at are out of racter for their immediate surroundings," said Andrew Mudryk,1 Director of Litigation and Advocacy at the Center, also representing the complain nts. Mudryk further explained, 'But here, Recovery Altematives wanted to open home in a residentially zoned area where the residents would live as a family. S , the proposed use was consistent with the zoning. Attaching burdensome terms anV conditions like the notification and public hearing requirements on group homes vi later fair housing laws. Further, the City shomid have waived the CUP requirem nt as a reasonable accommodation under the FHA when asked to do so." "Requiring a CUP for a group home only Invites opposition from neighbors often fueled by irrational fear of people with disabilities. That's exactly what happened here. Nei hbors in the Karhina Subdivision vehemently campaigned against granting ghe CUP," added Chen. By Nove her 2002, the City, buckling under pressure from angry neighbors, had tabled co sideration of the CUP application, delaying operation of the group home and causi g severe financial losses to Recovery Alternatives. With the Center's assistant , a charge of housing discrimination against the City of Sedona was filed with the izona Attorney General's Office in January 2003. The charge alleged that the C ty f iled to offer a waiver of the CUP requirement as a reasonable accemmo ation. for individuals with disabilities mandated u. ^.der the state's Fair Housing A . It further alleged that land use provisions requiring a CUP for group homes se ing persons with disabilities is itself a violation of fair housing laws because i imposes more burdensome terms and conditions on persons with disabiliti looking for housing. In May, all parties entered settlement negotiations, with the Arizona Civil Rights Division of the Attorney General's Office. The parties successfully reached a • settlement on June 26, 2003. In exchange for Recovery Alternatives and Ms. Cunningham agreeing to dismiss the complaint and relinquish their right to file a formal iaw3uit, Sedona agreed to the following: • per anently post a disclaimer in Sedona City Hall which states that disc 'urination on the basis of race, color, religion, sex, national origin, fam lal status, or disability is prohibited • con ene a study session of its Planning Commission in consultation with the Center within 120 days of the agreement to consider revisions and ame dments m the Land Development Code and other City codes regarding plat ment of group homes and the City's obligation and duties under the fede I and state Fair Housing Acts and other laws applicable to people with • offal Fair Housing training session to City staff working on housing issues • purc ase complainant's property intended for the group home for a sum of • pay settlement amount of $148,334.00, which included attorneys fees and costj to the Center In exchangt, Anne Cunningham and Recovery Alternatives will delay attempts to open a gro p home in a Sedona residential neighborhood for one year while the City works revise its Code. "We hope n ws of this case will incite other municipalities in Arizona to review their city or coun ordinances regarding group homes for people with disabilities and make what ver changes are necessary to ensure that everyone gets an equal opportunity housing," said Chen. The Arizon Center for Disability Law provides free legal services to ensure • people wit a wide range of disabilities are free from discrimination, abuse tp :I /www.faishousing.corf- nindex. 'n17method= page.dispiay&pagelD= 3235 7/25/2004 5•d 56902810911 093I0 NHS Wowooauw des:so bD 92 Inr National Fair Housing Advoca* Online Page 3 of 3 and n lect, and have access to education, housing, jobs, health care, and other s • rvices. The Center assists individuals statewide through federal pro on and advocacy funding along with other grants and donations. The Ce does not charge clients for its services. For furth r information or a copy of the Complaint or Conciliation and Settlement Agreem ts, contact Diana Chen at (520) 327 -9547 or Andrew Mudryk at (602) sv+ CJ • http i / /www.fairhousing.corn/index,L ?method= Me.display &pagelD =3295 7/25/2004 9•d 9690ZBL09LI 0`J3I0 IJH6 IJ01.1002161J d89:90 00 92 tnC National Fair Housing Adv cat Online Page 1 of A project of the Tennessee Fair Housing Council • i! ilia #i Dad Fair Housing sears, g, - Atv cafe tontine + search Narch 2003 only l� tiiFi AL3 ©me aiJOEit fdFifAi7 fGl'UnYS i go to zdvarceC search < contact s search help < — liews Archive - Old Headlines Dayt na Beach group home continues . Press Releases . O per tion and wins $100,000 settlement Print Advocate action Alerts after attempted shutdown — Discussion . Message Forums The Guest Room The City mmission of Daytona Beach, Florida agreed in March to give up a yearlong f ght against a home for recovering drug and alcohol addicts. The City will — Resources pay $100, 00 to settle a federal discrimination lawsuit. Get Help Near You Events The settle ent approved by commissioners includes $60,000 for attorney fees and Job Listings . costs. Mic ael Gardner, owner of the home, will split $6,000 wlth 10 clients. Links Hearthsto a Foundation, a nonprofit company that operates the home, will get Book Club $34,000. a settlement ensures that the Peabody House, a group recovery home Sponsors in a beach ide Daytona residential neighborhood, will continue to operate and help up to 10 r covering alcoholics and drug addicts simultaneously. —Legal Research Case Database The Comm ssion's move came despite opposition from neighbors who opposed the • Recovery Database group hom and spoke out at Commission meetings over the past year. According to the Day ona Beach News - Journal, Commissioners approved the settlement on a HUD Settlements 4-3 vote w th support from Mayor Bud Asher and commissioners Rick Shiver, Statutes and Pegs Yvonne rlett- Golden and Charles Cherry. Commissioners Darlene Yordon, Mike Articles Shallow an George Burden opposed the settlement. HUD Resources Neighbor wanted "illegal dormitory" shut down According t the News - Joumal, city officials started a code enforcement action against the home that resulted in fines for operating an "illegal dormitory" in a residential Orea and ordered the home to shut down. The actions were at the urging of neighbo , according to the article. The group ome's operators refused to dose the home and filed a federal lawsuit under the F it Housing Act and the Americans with Disabilities Act, asserting that the City wai discriminating against the Peabody House residents on the basis of disability. ven Polin, an attorney with Oxford House, another group home operator, assisted Hearthstone with its lawsuit. Commission r Scarlett- Golden told the News - Joumal that the City had no alternative ut to settle. "Do we continue spending money trying to win when we know our pr babilities of winning are almost nil ?" she asked. Commissioner Yordon continued 0 side with neighbors of the home who oppose it. "The neighborhood ~ as made it 2ar they don w an l to resg i ve Uh s, 4 hey van.„ t to fight," Yordc told the News -'c real. The rhetoric against the home had been harsh as evidenced by anti - Peabody posts • on therealda ona.com web site, operated by "Citizens for Honest Government." The site ac sed the home's owner of simply viewing the home as a money- making endeavor in gad of a place to helo people in recovery. The site's creator also p: / /www- fairhousing.com /index. ?method= page.display &pagelD =3387 7/25/2004 L•d 96902BL09LI 093I0 Nd9 WOW03NUW d69:90 b0 92 > ^C National Fair Housing Advocato Online Page 2 of 2 • stated, ° ow call me nuts, but my definition of disabled does not extend to someon who chooses to suck on a crack pipe. That is an insult to all the truly disabled ople out there who struggle to meet life's challenges. Lets (sic) just hope so a federal judge sees this for what it is...a big scam (sic).' At City C mmission meetings, neighbors of the Peabody House Claimed that transien and panhandlers had increased in the neighborhood since the home opened, hat drug addicts and alcoholics were not really disabled, that the house should moved to some other part of the city, that too many cars were parked at the hous , and that the house generated more revenue than other rental homes in the neigh orhood. Peabody ouse representatives responded that there were never more than four cars at th home, all of which fit into the home's garage. They pointed to the fact that then was a garden club in the neighborhood with 250 members and held bi- weekly m tings which caused a great number of additional cars to be parked in the neigh orhood. In grantin a preliminary injunction to Peabody House to stop the City from shutting ' down, a federal judge noted that City Commissioners had Claimed that recoverin addicts and alcoholics were not disabled. The judge denied that assertion, saying that addiction "places severe limitations on peoples lives' and pointed t several other federal cases that expressed the same sentiment. The settle ent agreement reached with the City resolves the claims of both parties. A ording to Polin, one of the Plaintiff's attorneys, the City agreed to treat Peabody ouse as a 'single family home' as long as the home continues to follow all the reg lations and codes required of such homes. • Gardner . City of Daytona Beach Case No. :02 -CV- 357- ORL -I9KRS (M.D. Fla.) The Hono able Patricia C. Fawcett U.S. District Judge Steve: P li n and BWle Jo Owens, attorneys for plaiati:f Case file.. March 22, 2002 Settleme t: March 19, 2003 ------- • }. / l� .i ^.y�l'.f^u'rI:CL'S:nt,^.COT /: ^.ties. f� ?r.�ethed= page.disF! »� & �e7rJ --338? ?ng /2nQ4 g-d 56902BL090 093IO NUS NON008bW 469:90 b0 92 Inc National Fair Housing Advocate Online Page 1 of 2 tt 1 A project of the Tennessee Fair Housing Council Fiat on 31 Fair Housing search,_, ,@ Online �y go i Ad oCate Online search July 1995on!y L� NFHA home I about NFHAO I forums } ac to advancer search eontac us search hasp < — Nevvs Archive - Old Headlines Frid Press Releases . DISC Print Advocate Action Alerts $401 — (Discussion - Message Forums Tenants The Guest Room housing Rights P — Resources - Get Help Near You Events Job Listings - Links Book Club Sponsors -Legal Research - Case Database Recovery Database HUD Settlements - StaWtes and Regs Articles HUD Resources http:HWWW 6 •d Tenants and City Settle urination and Relocation Claims For a complex in Fridley, MN, slated for demolition to make way for new ve settled their claims under the Fair Housing Act, the Minnesota Human and laws on relocation benefits. Tenants Ileged that their buildings were targeted for demolition because of their race, fam liai status, and receipt of public assistance. After weeks of intensive negotiati ns between the Sylvan Oaks Tenants Association (SOTA), the City of Fridley, H officials, and their attorneys, a settlement was reached in June_ Under the terms of the settlement, the city and HRA deny any liability or intent to di.1=n to against SOTA members, but have paid approximately $400,000 in redocationj payments and atto mays fees and have agreed to enact a fair housing ordinance for the City, The City also agreed not to require any focal residency preferenci for subsidized housing In Fridley, and to amend the City's housing plan to take InW account the needs of low -i ncome tenants. Glenn D. liver, lead attorney for the case with the Housing Discrimination Law Project sal : "The thirty plus clients we represent now have the means to make real Choi about where they want to live. Some of them are now building homes in Fridley, h ile others have chosen to relocate in areas outside of Fridley. At the same time we believe that the City of F idley and its HP in Fr dley understand that they nnot undertake redevelopment policies without considering the needs Of the displaced Tamil ies Oliver po n out that SOTA' complaint, which was never filed in Court, hinged on ON facto .One, there were statements by public officals which Indicated that condemnin SOTA members' apartment buildings and redeveloping the area (using tax increm nt financing) was intended to displace the tenants because of their solo -econ mic status. (Half were people of color, half receive public assistance of some form land two thirds of the households contained families with children, all protected c assific ations under Federal and /or State anti - discrimination law.) Secondly proposed demolition of the apartment buildings would have forced many fa mil s of color to relocate outside the City of Fridley and reduced the overall availability of low income housing in Fridley. SOTA stated, based on an Urban Coalition an lysis of census data, that the project would displace 5% of Fridley's people of c lor. The demolition of the apartment buildings without adequate relocation a istance was bound to further segregate the population of Fridley, by forcing peo le of col or and other protected class persons out of the City. • • i'ne tenants were represented by the Legal Aid Society of Minneapolis Housing Disaiminati n Law Project, Dorsey & Whitney, and other private attorneys. Thomas J. White, a lunteer attorney from the law firm of Klein & White, who worked on • the case, cit ed the unity of the SOTA residents, assistance of volunteer attorneys and the willi guess of Fridley public officials to come to the table for serious negotiations as reasons for the relatively quick resolution of the dispute. com/ index. fm ?method�age.display &pageU>=3152 7/25/2004 56902BL09LT O93I0 NHS NON00?1dIJ d00190 b0 92 Inc National Fair Housing Advocat4 Online Page 2 of 2 the resi nts that theybelieved that the project was permissible under the law and • that the roject was a grouphome, not a nursing home. The residents continued to express tpeir strong opposition tothe project. Later that month, the City ordered the con ction crews to stop work on thegroup home and revoked the building permits 14 had granted. National Fair Housing Advncatl Online Pagel of 2 City revok4s permits after neighbors voice concerns In Decem r 1995, residents near the new group home learned of CURA'S plans. 'fheyccr� ^d Gamer and Michael McDowell, the City Adrnialstrator for Creve Coeur. The. eighbcs darned that they had been told that the home was being modified'i a singiefamily from another town. The neighbors said that they did not want a "nu inghome^ operating in a residential area. The neighbors complained that their p pertyvalues would be driven down and that there would be additional trarft in th neighborhood If the project was allowed to proceed. According to testimony, one of theneighbors ever specifically objected to having disabled persons livi gin Meimeighborhood. On Decemb r 11, 1995, the Creve Coeur City Council held a regularly scheduled • meeting.Ma y residents of the neighborhood where the group home was being built attended th Letting. They expressed their concerns about the group home and the adverse eff itwould have on their neighborhood. The City Council explained to hw p:;; trvv:.fai:hausi:g.comrirdexc��c ?method= page,dispi ay &page:D —'3053 725112004 g•d 5690Z9L09L1 09310 NHS WOW038UW dLS ;SO t.0 9Z inC A project of the Tennesseg Fair Housing Council Nati nai Fair Housing search: 190: ..:..:i ; Adv Cate online search September 1998 only NFHAO ome !about NFHA0 I forums I co to advanced search contact us search help < — News Archive Old deadlines ]udg orders city to pay $192,000 to Press Releases Miss uri group home operators in zoning Print Advocate Action Alerts disp to — Discussion Message Forums The Guest Room In Septe ber, United States District Judge George F. Gunn, Jr, ordered the city of " CreveCce r, Missouri to pay $ 192,788 to the developers of a group home for — Resources person Fns MAlzheimer s Disease. The Court also ordered the city to issue building thedevelopers so the group home could be completed. Get Help Bear You Events lob Listings In June 1 5, CUBA, Inc. opened MasonManor, a group home for persons with Links Alzheimer' Disease, in an unincorporated art of St.Louis County, P Missouri. Soon Book Club • after the f cityy opened, the part of the county where thehome was built was Sponsors annexed b the city of Creve Coeur. CURA planned to build another grouphome in the Creve oeur area because there were many people on the waiting list to getinto Mason Ma or. —Legal Research Case Database In Septem 1995, CURA purchased a home in a Crave Coeur residential Recovery Database neighborh andplanned to convert it into a group home. Later that month, CURA applied to he city forseveral construction permits. On October 4, 1995, Timothy HUD Settlements Dolan, pr ident of CURA, metwith Creve Coeur's director of Community Statutes and Pegs vei oPm t, Randal Gamer. Garner told Dolanthat the city's legal department was Articles checking t see if it could block the group homebased on an earlier court decision. HUD Resources CURA crea d a separate, non - profit corporation to insulate itself fromthe earlier court decis n, which held that cities could block the construction of grouphomes in residential reds if they were "For profit" ventures. CUBA assured theCity Attorney that the ne home would be a non -profit operation. This assurance seemed tosatisrty th City, which issued several construction permits in October and November 995. City revok4s permits after neighbors voice concerns In Decem r 1995, residents near the new group home learned of CURA'S plans. 'fheyccr� ^d Gamer and Michael McDowell, the City Adrnialstrator for Creve Coeur. The. eighbcs darned that they had been told that the home was being modified'i a singiefamily from another town. The neighbors said that they did not want a "nu inghome^ operating in a residential area. The neighbors complained that their p pertyvalues would be driven down and that there would be additional trarft in th neighborhood If the project was allowed to proceed. According to testimony, one of theneighbors ever specifically objected to having disabled persons livi gin Meimeighborhood. On Decemb r 11, 1995, the Creve Coeur City Council held a regularly scheduled • meeting.Ma y residents of the neighborhood where the group home was being built attended th Letting. They expressed their concerns about the group home and the adverse eff itwould have on their neighborhood. The City Council explained to hw p:;; trvv:.fai:hausi:g.comrirdexc��c ?method= page,dispi ay &page:D —'3053 725112004 g•d 5690Z9L09L1 09310 NHS WOW038UW dLS ;SO t.0 9Z inC Facsimile Mail 9095968691 Phone (626) 3391432 Mayor, City Council Members of Newport Beach, CA Facsimile Mail 9496443073 July 26, 2004 • "RECEIVED AFTER AGENDA . PRIMED :" _� t-f 2- 22 y Re: July 27, 2004 Agenda Item 41 Adoption of proposed Amendment to the Zoning Ordinance for Recovery Facilities Gentlemen: We have owned 1816 West Oceanfront since 1967. We have used it as our vacation single family residence all this time. In 1992 we remodeled and added a two bedroom apartment over the garage. The present resident, there for the last three years, is a single lady. We are certainly aware of the usage and occupants conduct at 1810 West Oceanfront. We visit with our biends at 1812 West Oceanfront. At times the noise and the smoke emanating from 1810, is in our opinion, constitutes both a public and a private nuisance. You must realize that there is only a three foot side yard set back in all of that area. We therefore support and urge you to adopt the proposed Zoning Ordinance. Amendment • and also require a hearing before issuing conditional use permit, requiring the occupants to abide by reasonable and non discriminatory restrictions. We do expect that these conditions of occupancy be compatible with the usage contemplated when the original zoning of R- 2.5 was passed. Since all these hearings the recovery facility has been a much better neighbor. However, in addition to their permanent residents they are busing in several van loads of people daily at around 8 A.M. and picking them up in the evening about 9 P.M. The food supplies come in at least twice a week. The trash company empties two large dUmpsters three a week. All this impacts the traffic flow in the narrow alley serving Ocean Front and Balboa residents. All of these things should be considered and the permittee should be held responsible to the standards of the other area neighbors. Nothing less, nothing mme. In doing v hat's fair and reasonable I hope that each Council and Staff member will approach this problem as though the recovery facility is their neighbor and not just ours. Very truly yours, John and Margie MordoCff� y lGc _e c 0 • Mr. And Mrs. Albert Irwin 1802 West Ocean Front Newport Beach, California July 26, 2004 City Council City of Newport Beach 3300 Newport Blvd. Newport Beach, Ca. Re: Agenda Item No.4 —July 27, 2004 Dear Mayor Ridgway and Councilmen: "RECEIVED AFTER-AGENDA FEINTED:" y -0 Although we are unable to be present at your meeting, we wish to express our support for the proposed zoning amendment regarding Recovery Facilities. Please pass this amendment. As long time residents of the Peninsula, we have personally experienced the difficulties that can occur when Group Living facilities are too densely located and poorly managed. Sincerely, AI and Lois Irwin LAW OFFICES OF (949)`512'2141 DANIEL C. CARLTON 2600 MICHELSON DRIVE, SUITE 1120 IRVINE, CALIFORNIA 92612 July 26, 2004 HAND DELIVERED City Council City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 Re: July 27, 2004 Council Meeting — Agenda Item 4 Dear Mayor Ridgeway and City Council Members: COUNCIL AGENIDA No- 16 8 l° TELEPHONE (949) 757 -0707 Legal Assistant Heather Dorris This correspondence confirms that this office represents Narconon Southern California. A review of the proposed ordinance raises concerns that portions thereof are in violation of state and federal statutory and case law, as it is currently written. It is in the best interest and welfare of the community for the Council to consider making at least two additional amendments to the final draft. The amendments will clarify the definitions for "Campus" and "Single Housekeeping Unit." The proposed changes are presented below. They will allow the City to maintain the desired control and also allow the ordinance to be more compliant with the laws of the land. Why do these definitions need to be amended? The answer is clear after a brief review of the federal and state legislative purpose for the laws, along with citations of a few of the applicable laws, Legislative Intent And The Concerns The Federal Housing Act Amendment (FHAA) was partly created to make unlawful those public and private land use and housing practices and decisions that discriminated against people with disabilities, as defined by the government, In particular, the act was passed to eliminate unlawful restrictions against group housing for these people since they are significantly more likely to live with unrelated persons within a residential setting. Under the FHAA it is illegal to refuse "to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. §3604(f), City Council City of Newport July 27, 2004 Page 2 To comply with the federal laws on a state -wide basis, the California legislature passed laws to establish and maintain a comprehensive way to ensure quality community care for people with disabilities. This allowed them to live in group housing within a residential neighborhood setting (California Health and Safety Code section 1501). As a result, a concern was created by local agencies about compliance with the federal and state laws. They believed the integrity of a residential neighborhood would be impaired and an over - concentration of residential care facilities would be created because state law requires these group residential facilities be treated as Single Family Residences (California Health and Safety Code section 1568.0831). To deal with this concern, state law allows the establishment for a separation distance of 300 feet or less (California Health and Safety Code section 1520.5 subsection (a) and (b). This requirement clearly shows the need to change the distance from "300 yards" to "300 feet" in the distance requirement of the proposed definition for "Campus." The other area of concern is the fact that the word "transient" was not 100% stricken and removed from the proposed ordinance as discussed in the City Council hearing of July 13, 2004. A form of the word still appears in the definition for "Single Housekeeping Unit" as "non- transient" which limits persons with disabilities in the unit. In reality, a family can have transient members. So can residential properties that are leased, rented, or have multi - ownership. The use of the word needs to be eliminated because it violates legislative intent, discriminates against the handicapped, and fails to provide equal protection. Further, the use of the term "Single Housekeeping Unit" as written does not allow a reasonable accommodation and conflicts by operation with the term's use in the FEP requirements of "SECTION 10.C.2." of the proposed ordinance. In City of Edmonds v. Oxford House, 514 US 725 (1995), the City of Edmonds, Washington had a zoning restriction which limited occupancy to five or fewer unrelated persons. The District Court had granted summary judgment in favor of the city based upon a provision in the Fair Housing Act which exempts local restrictions regarding the maximum number of persons permitted to occupy a dwelling from any discrimination challenges. The Ninth Circuit reversed the District Court decision and the United States Supreme Court agreed. Hence, occupancy restrictions apply equally to families and groups of unrelated persons. In addition, the California Supreme Court in City of Santa Barbara v. Adamson, 27 Cal. 3d 123 (1980), held that the California Constitution prohibited local communities from distinguishing between blood- related families and self - proclaimed families that were living as a single housekeeping unit. City Council City of Newport July 27, 2004 Page 3 Other case law affecting persons occupying a residential dwelling include: Briseno v. Santa Ana, 6 Cal.App. 4th 1378 (4w Dist. 1992), where the City of Santa Ana had enacted local regulations which limited the number of persons (related or unrelated) living together. The state Court of Appeal held that the local regulation was preempted by the uniform state regulation and legislation; and In College Area Renters and Landlord Association v. City of San Diego, 43 Cal.App. 4`h 677 (4w Dist. 1996), the City of San Diego attempted to limit the number of adult occupants of rented one - family dwelling units. The Court of Appeal held the zoning invalid as a denial of equal protection of renters vis -a -vis owners. So, one solution for the City is to clarify the definition of "Single Housekeeping Unit' for purposes of the FEP and allow unrelated persons to function together under the definition of a 'Residential Care — General" and in accordance with legislative intent and federal and state laws. The above represents a couple of concerns we have with the proposed ordinance. We have provided you with some additional facts to help in your creating an ordinance that complies with state and federal laws by amending the definitions involved and to eliminate the conflict that exists. Thank you for your consideration in addressing these concerns. Respectfu , �'-y ��J��24�79n L C. CARLTON DCC:td cc: Jon Stearman, Narconcon Southern California (via facsimile) Robert Burnham, Newport Beach City Attorney (via facsimile) Jeffrey A. Goldfarb, Special Counsel to City of Newport Beach (via facsimile) N^F1C/ NON° Southern California "RE "EE !ED AFTER AGENDA PRINTED:" I5 I��) August 7, 2004 n City of Newport Beach Mayor & City Council 3300 Newport Blvd. r Newport Beach, CA c% SUBJECT: City Council Meeting, Agenda Item 15, August 10, 20041 Dear Sirs, mc� 0 'T I have provided the following three cases to answer questions that have arisen from the recent hearings on recovery homes. This data answers the questions of why the ADA (Americans with Disabilities Act) and FHAA (Federal Fair Housing Act Amendment) were enacted and what the intentions and purposes are behind these federal laws: 1. PURPOSE OF ADA - The following excerpts are from the United States Court of Appeals for the Ninth Circuit, Bay Area Addiction Research and Treatment Inc v. City of Antioch,CA 1999: Congress' stated purposes in enacting the ADA (Americans with Disabilities Act) also support its application to zoning. Within the text of the ADA, Congress set forth its broad goal of "providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" 42 U.S.C. Section 1210(b)(1) (1999) "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society." Without speculating on the kind and quality of evidence needed to establish a significant risk, we note that in assessing the evidence, courts must be mindful to the ADA's express goal of eliminating discrimination against people with disabilities. See 42 U.S.C. Section 1210(b)(1) As the Arline Court recognized, the Rehabilitation Act was meant to protect disabled individuals "from deprivations based on prejudice, stereotypes, or unfounded fear." 2. INTENTION OF FHAA - The following excerpts are from The Court of Appeal of California, Third Appellate District, Jeffery Hall v. Butte Home Health, 1997: In amending the Fair Employment and Housing Act, the Legislature declared: "It is the Legislature's intent to make the following findings and declarations regarding unlawful housing practices prohibited by this act: [P] (a) That public and private land use practices, decisions, and authorizations have restricted, in residentially zoned areas, the establishment and operation of 1810 W. Ocean Front, Newport Beach, CA Phone: (800) 876 -6378 Fax (949) 675 -4479 www.usnodruas.com • Southern California group housing... [P] (b) That persons with disabilities... are significantly more likely than other persons to live with unrelated persons in group housing. [P] (c) That this act covers unlawful discriminatory restrictions against group housing for these persons." ( Stats. 1993, ch. 1277, §18.) "The Federal Fair Housing Amendments Act of 1988 articulates the public policy of the United States as being to encourage and support handicapped persons' right to live in a group home in the community of their choice. [Citation] `[Section 3604(f)(2)] is intended to prohibit special restrictive covenants... which have the effect of excluding... congregate living arrangements for persons with handicaps."' (Rhodes v. Palmetto Pathway Homes, Inc. (1991). 3. INTENTION OF FHAA - The following are from the United States Court of Appeals for the Ninth Circuit, City of Edmonds v. Washington State Building Code Council and Oxford House Inc.: [ *806] The FHAA imposes an affirmative duty to reasonably accommodate handicapped persons. 42 U.S.C. Section 3604(f)(3)(B). [ ** 131 Reasonable accommodation is borrowed from case law interpreting the Rehabilitation Act of 1973. 1988 U.S.C.C.A.N. at 2186 (citing Southeastern Community College v. Davis, (1979)). Congress intended the FHAA to protect the right of handicapped persons to live in the residence of their choice in the community. 1988 U.S.C.C.A.N. at 2185. The FHAA was to "end the unnecessary exclusion of persons with handicaps from the American mainstream." See United States v. Badgett, 976 (8h Cir. 1992) (question not whether any housing made available, but whether housing individual desired was denied on impermissible grounds) I hope this has been helpful in clarifying the intent and purposes of the ADA and FHAA. Redly, Gerry MWrshall /(77,(660) 668- 4617//��/ President, Narconon So. Cal. CC: Robert Burnham, City Attorney Homer Bludau, City Manager Jon Stearman, Director of Legal Affairs, Narconon So. Cal. 1810 W. Ocean Front, Newport Beach, CA Phone: (800) 876 -6378 Fax (949) 675 -4479 www.usnodrugs.com "RECE VED;AFTERAGENDA Ho- August 6, 2004 FAX AND HAND DELIVERED To: Newport Beach City Council Attn: Mayor Todd Ridgeway and Council Members: Steve Rosansky, Don Webb, Gary Adams, Steven Bromberg, Richard Nichols and John Heffernan, RE: PROPOSED ORDINANCE - AGENDA ITEM NO. 15, AUGUST 10, 2004 CITY COUNCIL MEETING Gentlemen, You will find on the following pages a summary report on statutory legislation as it applies to the proposed ZONING AMENDMENT/RECOVERY FACILITIES. We are submitting this information and research because approving an ordinance of this type, the City Council is creating a creating a financial risk for the City of Newport Beach and its residents. This is based on recent cases and the thousands of dollars that cities paid -out as part of legal settlements for failing to comply with applicable Federal and State laws. In fact, over $250.000.00 is the average case settlement against a city for non - compliance with the laws and found to be discriminating against disabled people. And, this does not include the legal, administrative, public relations and good -will costs incurred by a city. The City and its residents are the ones that suffer, if monetary losses are incurred. Further, from a moral and ethical standpoint it is evident that the proposed ordinance is discriminatory. We urge you to not take such a financial risk that can have a negative impact on the great City of Newport Beach. Sincerely, Christopher Bauge Ji Brierly Orange County Sober Living Coalition V _Z) ;r o cc: Robert Burnham — City Attorney, Newport Beach Homer Bludau — City Manager, Newport Beach Lavonne Harkless — City Clerk, Newport Beach SUMMARY REPORT ON STATUTORY LEGISLATION & CASE LAW AS IT APPLIES TO THE PROPOSED ORDINANCE - AGENDA ITEM NO. 15, AUGUST 10, 2004 CITY COUNCIL MEETING The following Federal Acts, recent legislation, as well as case law history will support that the proposed ordinance is not only facially invalid because it does not substantially further any legitimate government interest, but also is invalid and unenforceable because it deprives disabled persons equal protection of the law, by requiring a now invented "Federal Exception Permit. This ordinance clearly inconsistent with Federal statutory law. Federal Acts/Recent Legislation Summary The key issue with the proposed ordinance labeled is that the city has not Proved, provided viable data, or articulated that the ordinance is necessary to further a legitimate government interest and the ordinance also has no language in it that shows how it will reasonably accommodate handicapped individuals. The ordinance makes a feeble attempt, if any, calling to preserve the unique character of residential neighborhoods. The Fair Housing Act Amendment of 1988 prevents city's from adopting or enforcing zoning ordinances that impact recovery facilities for handicapped individuals differently than non - handicapped residential uses in the same zone unless the City can prove the ordinance is necessary to further a legitimate government interest; and reasonably accommodate handicapped individuals. The FHAA (Federal Fair Housing Act) makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling. What is "reasonable accommodation" for purposes of the act? Well according to the Joint statement of the Department of Housing and Urban Development and the Department of Justice in their statement release May 17, 2004 "A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces." CASE LAW /STATUTORY INTERPRETATION CITY OF CLEBURNE, TEXAS, ET AL. v CLEBURNE LIVING CENTER, INC SUPREME COURT OF THE UNITED STATES July 1, 1985 Decided Page] of 5 Summary: The following case will demonstrate what happens when a local city government, passes an ordinance that is similar to the proposed ordinance, without providing for a legitimate government interest and providing reasonable accommodation. This case proves that the ordinance is facially invalid and unenforceable. The CLC (Cleburne Living Center) filed suit in Federal District court against the city and a number of its officials, alleging, inter alias, that the zoning ordinance was invalid on its face and as applied because it discriminated against the mentally retarded in violation of the equal protection rights of the CLC and its potential residents. The district court found that if the potential residents of Featherstone Street Home were not mentally disabled, but the home was the same in all other respects, it's use would be permitted under the city ordinance, and that the city council decision "was motivated primarily that the residents of the home would be persons who are mentally retarded." The court considered heightened scrutiny to be particularly appropriate in this case, because the city ordinance withheld a benefit which, although not fundamental, was very important to the mentally retarded. Without group homes, the court stated, the retarded could never hope to integrate themselves into the community... the court held that the ordinance was invalid on its face because it did not substantially further any important governmental interest. BAY AREA ADDICTION RESEARCH AND TREATMENT, INC v. CITY OF ANTIOCH UNITED STATE COURT OF APPEALS FOR THE NINTH CIRCUIT June 3, 1999 Summary: This case will illustrate how zoning for disabled individuals is regulated by Federal Law, and that is not in the control of local, city, or state governments. On July 6, 1998 Bay Area Addiction Research and Treatment brought a class action lawsuit against the City of Antioch under the ADA, the Rehabilitation Act, and 42 U.S.C., for violations of Supremacy, Due Process, and Equal protection clauses. Bay Area sought a declaratory judgment that Ordinance # 941 C -S was unlawful and a permanent injunction enjoining Antioch from enforcing the ordinance or otherwise interfering with Bay Area's use of sunset lane as a Methadone Clinic. The District court found that zoning is an activity covered by the ADA and the Rehabilitation Act and that appellants are qualified individuals with disabilities, entitled to protection under both statutes. The Second Circuit in several similar cases (Innovative Health Systems, Inc. v. City of White Plains) held that these statutes (ADA, Rehabilitation Act, 42 U.S.C.) do apply to zoning. Page 2 of 5 Based on these findings it is evident that the proposed Ordinance labeled "Exhibit A" is invalid, and that "Section 5- labeled Land Use Regulation" and the adjoining zoning chart is both discriminatory, and in direct violation of the American Disabilities Act, The Rehabilitation Act and U.S.C. Section 42, because zoning as the Courts found is governed by Federal Law, meaning local governments cannot make zoning determinations in cases involving disabilities. TURNING POINT, INC., v. CITY OF CALDWELL; CALDWELL PLANNING AND ZONING DEPARTMENT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JANUARY 24, 1996 Summary Lastly we present a case that demonstrates the unenforceability of Occupancy Limitations for the disabled and the rehabilitation agencies that provide those services. Turning Point, Inc., a non - profit Idaho corporation brought suit against the City of Caldwell Idaho, and the Planning and Zoning Department. Turning Point alleged that the zoning ordinance of Caldwell was unconstitutionally vague and that its enforcement against Turing Point was a violation of the Fair Housing Act, 42 U.S.C. The court found that the occupancy limitation was unreasonable, and that the City of Caldwell had failed to make reasonable accommodations for the handicapped in violation of 42 U.S.C. The court further enjoined enforcement of the conditions it found not to be reasonable accommodations. It awarded damages to Turning Point of $5,618 representing lost program reimbursement, because of the restriction placed on the number of residents. Here beyond dispute, it was found that housing for the handicapped was affected by the City of Caldwell's failure to reasonably accommodate, and its insistence on an occupancy level was unreasonable. The Fair Housing Act, 42 U.S.C., empowers courts to award appropriate attorney fees, as well as operating losses accrued because of violations of the act. Turning Point also sought reimbursement from the City of Caldwell for its attorney fees. RECENT SETTLEMENTS Summary Next we look at what happens when cities and local municipalities either pass ordinances that fail to reasonably accommodate the disabled; do not support a legitimate government interest and /or are discriminatory in nature. ➢ City of Taylor, Michigan agrees to pay $550,000 for refusing to rezone adult residential care center Page 3 of 5 In yet another case where a city's government has been accused of denying housing rights to its disabled citizens, a new large settlement has been reached. The city of Taylor Michigan has agreed to pay $550,000 to settle a discrimination lawsuit filed by the owners of a residential facility for disabled adults. According to the lawsuit Taylor officials had refused to allow the facility to house more than six residents because of zoning laws. The residential facility was in a single family area. Zoning requirements in single family areas limited the number of persons living to six. When the facility asked the City to rezone their property, Taylor Officials said no. In December of 1996, the sixth Circuit court issues a ruling on behalf of the plaintiffs, agreeing that the City of Taylor failed to make reasonable accommodation. Following the Sixth circuit ruling, the City of Taylor agreed to settle. The cash settlement included money for lost profits, damages, attorneys' fees, legal costs, and interest. Taylor officials also agreed to an injunction, prohibiting it from interfering with the operations of adult foster care facilities in single family neighborhoods. Summary: i City of Sedona Settles Housing Discrimination Complaint for $530,334 Recently, the City of Sedona agreed to settle a housing discrimination complaint, brought by recovery Alternatives, Inc. and Anne Cunningham, its Executive director, both represented by the Arizona Center for Disability Law (the Center). The January 2003 administrative complaint, filed with the Arizona Attorney General's Office, alleged that the city violated the Federal Fair Housing Act when its Land Development code thwarted efforts of a group home for individuals with disabilities from operating in a Sedona residential neighborhood. In May, all parties entered settlement negotiations with the Arizona Civil Right Division of the Attorney General's Office. The parties successfully reached a settlement on June 26, 2003. Sedona agreed to the following: • Permanently post a disclaimer in Sedona City Hall which states that discrimination on the basis of race, color, religion, sex, national origin, familial status, or disability is prohibited • Convene a study session of its Planning Commission in consultation with the Center within 120 days of the agreement to consider the revisions and amendments to the Land Development Code, and other city codes regarding placement of group homes, and the City's obligation and duties under the Federal and State Fair Housing Acts and other laws applicable to people with disabilities. • Offer a Fair Housing training session to City staff working on housing issues • Purchase complainant's property intended for the group home for the sum of $382,000.00 • Pay a settlement amount of $148,334.00, which included attorneys fees cost to the Center Page 4 of 5 Summary v Daytona Beach Group Home continues operation and wins $100,000 settlement after attempted Shutdown The City commission of Daytona Beach gave up a year long fight against a home for recovering drug and alcohol addicts. The city will pay a $100,000 to settle a federal discrimination lawsuit City of Fresno, California agrees to $535,000 in Justice Department disability discrimination case. Under the settlement agreement the city agreed to the following: • Training for its employees and officials to ensure they will not discriminate against persons with disabilities in the future; • $445,000 in grants to help pay the renovation of the cedar heights apartment building • $85,000 to cover the plaintiffs' legal costs; • $5,000 to cover the housing cost of the man who could not move onto cedar heights while renovation was delayed; • A community outreach program to inform the public about services and available to Fresno residents with disabilities; and • A review of Fresno's current housing programs to determine if any changes are needed to accommodate persons with disabilities. To conclude, we have shown that the proposed ordinance is facially invalid because it supports no legitimate government interest. We have shown that the proposed ordinance is discriminatory by nature, due to the proposed adoption of a "Federal Exception Permit" for Residential Rehabilitation General. We have demonstrated how the ordinance's provisions for zoning fail to reasonably accommodate the disabled and therefore are a violation of the Fair Housing Act. We have given several pertinent cases where the courts have found that zoning for the disabled is not a local government function but is over - ridden by Federal Law. We specifically cited cases where the American Disabilities Act and the Fair Housing Act were ignored by local city governments and zoning commissions and the significant monetary repercussions that took place as a result. We have shown that occupancy limitations cannot be enforced on Rehabilitation agencies and that the failure of local governments to abide by the ADA and Fair Housing Act, can leave them liable, subject to scrutiny, and attract negative publicity and media. We have shown how the courts found that "mere negative attitudes, or fear, unsubstantiated by factors that are cognizable in a zoning proceeding, are not permissible bases for treating disabled persons differently (e.g. Federal Exception Request) , from apartment houses, multiple dwellings, and the like. In essence the proposed ordinance is in blatant violation of Federal Law. Page 5 of 5