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HomeMy WebLinkAbout0 - Closed Session AgendaCITY OF NEWPORT BEACH — OFFICE OF THE CITY ATTORNEY CLOSED SESSION AGENDA TOPIC WILL BE DISCUSSED IF UNDERLINED AND BOLDED CS-1 CONFERENCE WITH LEGAL COUNSEL REGARDING LITIGATION — 54956.9 JANUARY 8, 2008 Immediately After Study Session Council Conference Room Name and number of case(s) Harvev vs. City of Newport Beach OCSC Case No. 07CCOM CS-2 CONFERENCE WITH LEGAL COUNSEL ANTICIPATED LITIGATIONISIGNIFICANT EXPOSURE TO LITIGATION 54956.9(YA a. Number of cases involving facts and circumstances that might result in litigation but which are believed not yet known to any potential Plaintiff: b. Facts and circumstances of an accident, disaster, incident or occurrence that might result in litigation and which are known to any polential Plaintiff. (Identify fads on agenda or dosed session announcement): C. Claims or written communication threatening litigation): d. Statement made by person in open meeting threatening litigation (specify name and date): CONFERENCE WITH LEGAL COUNSEL - DECISION WHETHER TO INITIATE LITIGATION § 54956.9(C) a. Number of cases unspecified because disclosure would jeopardize service of process: b. Number of cases unspecified because disclosure would jeopardize erdsting settlement negotiations: CONFERENCE WITH REAL PROPERTY NEGOTIATOR- 54956.8 Specify street address and/or the parcel number or other unique reference of the real property under negotiation: Negotiating Parties: Under negotiation: . CONFERENCE WITH LABOR NEGOTIATOR —MEET 8 CONFER Agency negobatorname(s):... .... . Employee Organization: CONFERENCE WITH LABOR NEGOTIATOR— UNREPRESENTED EMPLOYEES SPECIFY POSITION, TITLE OR EMPLOYEE WHO IS THE SUBJECT OF THE NEGOTIATIONS Agency negotiator. Unrepresented employee: CONSIDERATION OF PUBLIC EMPLOYEE APPOINTMENT C" PUBLIC EMPLOYEE PERFORMANCE EVALUATION • City Clerk Fi userslca6shuwWmedSessionO ,Qmda06Van98.doc Published Tuesday, OecessbW 11. 2DD7191 PM. PST PoliDcs Citizens reject rehab plan Activists threaten sult if Newport doesn't do more to clamp down on group homes. Operator vows to fight proposed rules. By Brianna Bailey Balboa Peninsula residents and rehabilitation home operators said they are unhappy with a proposed ordinance to curb the spread of rehab facilities in Newport Beach. AMi•rehab home activists said they will fide a multi-miftion dollar lawsuit against the city if Newport Beach doesn't do more to clamp down on houses where they say recovering addicts cause problems with noise, trash and traffic on the peninsula. And the city's largest rehab home operator said it will fight new rules it said are "discriminatory." "We're trying to walk a fine line between protecting the residential character of the neighborhoods and discriminating against people the law deems handicapped; Mayor Steve Rosansky said. Newport Beach City Council and residents will discuss the ordinance at a study session at 4 p.m. today. The proposed new rules would wipe out changes the City Council made to rules in 2004 that rehab home activists say caused a proliferation of homes in the city. The 2004 rules made it possible for some rehabilitation homes to open in Newport Beach without a use permit, because the city categorized recovering addicts as disabled. "They aren't going as far as they Treed to go to resolve the problem, said Denys Oberman, a member of Concerned Citizens of Newport Beach. The group has lobbied hard for stricter rules on rehabilitation homes in Newport Beach, and spent about $150,000 on attorneys and planning consultants to pressure the city into doing more, Oberman said. Residents would like to see a bigger buffer zone between rehab homes than what the new rules propose, Oberman said. Although the new rules would require rehab homes to obtain use permits, Oberman said it's not enough to curb what residents feel is an over-concentration of homes on the peninsula. "That's what they were supposed to do in 2008 or 2004 but now R's not enough. We feel encouraged, but we're not there yet and the city needs to get there soon," Oberman said. "The city needs to align with the interests of its constituents." The proposed new rules discriminate against recovering addicts and rehabilitation facilities, said John Peloquin, vice president of operations for CRC Health Group, which owns Sober Living by the Sea. The rehabilitation center is the largest in Newport Beach and houses about 85 clients in homes on Balboa Peninsula. "The ordinance adversely affects us in a discriminatory way." Peloquin said. 'R's discriminatory and we will not accept that We will defend ourselves." Peloquin said he didn't believe a new ordinance would ease tensions between rehab operators and residents on the peninsula. He called for peninsula residents and rehab operators to work toward a solution. "We need more dialogue to work through these issues. I think the providers can come up with a solution to work with the city's needs without an ordinance," Peloquin said. "I'm not happy with it, nobody's going to be happy with it. We're all unhappy about an ordinance and the facts still remain and there's still issues that need to be resolved." The council is poised to vote on the ordinance in January and a new ordinance could go into effect as early as February. The proposed rules could be revised to address the concerns of rehab home operators and residents before the council votes, Rosansky said. Requires rehab homes obtain conditional use permits Keeps most new homes from opening except in areas zoned for mufti-family residential use. http://www.daflypilot.00rn/articles/2007/12/1 I /politics/dpt- rehabhomes l l .prt 12/13/2007 Print Version:: Page 2 of 2 Mandates no secondhand cigarette smoke be detectable outside properties where homes operate. BRIANNA BAILEY may be reached at (714) 966 -4625 or at bNanna.balley@latimes.com. [ CLOSE WINDOW http:/ /www.dailypilot.com /articles/ 2007 /12/11 /politics/dpt- rehabhomesll.prt 12/13/2007 Jadzon l DeMarcol Tidus Petersen l Peckenpaugh , i , r y,0 n� A LAW CORPORATION 1^' October 9, 2007 Direct Dial: 949.861.7424 9 Email; mddus acv n om Reply to: Irvine Office File No: 6731 A3997 VIA PERSONAL DELIVERY Ms. LaYonne M. Harkless City Clerk City of Newport Beach 330,0 Newport Boulevard Newport Beach, California 92663 RECEIVED OCT f 0 2001 CITY ATTORNEY'S OFFICE CITY OF NEWPORT BEACH Re: Concerned Citizens of Newport Beach - Demand Letter Dear Ms. Harkless: Date i `i L02 Copies Sent To: ""yor �'(`Auncil Member ;N.anager �>rfljy O C1 0 We represent Concerned Citizens of Newport Beach ("Citizens'). Please circulate this letter to all of the City Councilmembers. This letter is intended to provide the City with notice of the circumstances giving rise to the Citizens' potential claims against the City. By this letter the Citizens are demanding that the City immediately: (1) develop, adopt and implement ordinances that adequately regulate residential care facilities eliminating current and preventing further over - concentration; (2) enforce current regulations, including the moratorium; and, (3) take immediate action to implement and enforce the Political Reform Act. In addition, the Moratorium is set to expire. It has done little to stem the tide of newly established and expanded existing residential care facilities. We expect that the City will continue the Moratorium because of the delay in developing sound approaches to regulating residential care facilities. We further expect that when the City does so, it will enforce the Moratorium, and prohibit all now and expanding facilities that are further exacerbating over - concentration. It is imperative that the City and the Councilmembers take immediate steps to address these issues; otherwise, the Citizens will seek redress of its grievances by other lawful means. This demand is the direct result of the City's continual, willful refilsal to implement and enforce the existing Municipal Code requirements regulating residential care facilities, the failure of City to require its covered employees (mcluding contract employees) to comply with the disclosure requirements of the Political Reform Act 'the City's failure to implement the General Plan.: aril ensure the zoning ordinance is consistent with the General Plan, and the failure to . adopt in a timely manner ordinances amending its Municipal Code that are necessary to protect public health, safety, and welfare. We believe that the City's current ordinance and malfeasance in this regard has damaged the Citizens members by an amount currently estimated to be more than $250 million. Irvine Offtoe Westlake vi fte Office 2030 Main Street, Suite 1200 2815 Tormsgate Road, Suite 200 Irvine, California 92614 Westlake Wage, California 91361 t 949.752.8585 f 949.752.0597 t 805230.0023 f 805.230.0087 Ms. LaVonne M. Harkless October 9, 2007 Page 2 This is not a new issue. The City's patent disregard of its own laws and the health and safety of its citizens has been identified as far back as 2003. The delay and failure to enact satisfactory ordinances to regulate this use clearly stems from the obstructionist attitude of City staff who are opposed to any meaningful reform of the City's regulations for residential care facilities. In fact, the City staff and outside counsel have attempted to limit and misguide policy discussion by the Planning Commission and City Council on this issue by creating public documents that allegedly opine on the legality of the necessary reforms. Instead of working on "how to" bring about necessary change, the City staff has continued to focus on "why not." We have presented the City with a legal ,sound approach to regulation of residential care facilities that it should adopt without further delay. The citizens that live nearby these facilities (who are in the best position to know the extent of regulation necessary) have repeatedly testified to the public health, safety and welfare impacts they experience. The citizens we represent are not opposed to legitimate residential care facilities locating in the City and along the coast. They object to the over - concentration and unregulated propagation of these facilities that are harmful to both individuals and the community, and the disabled persons they purport to serve. Further delay by the City will cause additional long -term and potentially irreversible damage and losses to individual citizens and the community. By failing to promptly address the Citizens' concerns, the City is exposing itself to substantial damages. 1. A. The City Inkntionagy Gutted the Previous Law Causing Harm to ImUvidual Residents and the Community. In 2004, despite both substantial evidence of impacts and public protest, the City knowingly changed its local ordinances to eliminate all regulation of this type of residential care use. Under the direction of the then City Attorney and Mayor, the City took deliberate action that enabled the rampant, uncontrolled expansion of the "group home" businesses. The revised 2004 ordinances were crafted to specifically enable the expansion of these businesses and uses in the City's dense, coastal neighborhoods in a campus -like form: legal requirements. for a use permit (CUP) were abolished; licensed and unlicensed group home uses were permitted in residential zones R1.5 and 112; definitions of "Residential Care- Limited" and "Residential Care, General" were revised to allow business operators to commingle licensed and unlicensed uses, and to improperly characterize their operations as "6 or under" subject to certain rights to which they were not really legally entitled; the City failed to incorporate State of CahlbmWs definition of " facility" into ordinance definitions and allowed these businesses to operate without a business license in a manner inconsistent with the City's policy on business licenses for other businesses (including requiring business licenses for home based businesses). Ms. I.aVonme M. Ilarkless October 9, 2007 Page 3 In addition, we have been told that City staff was universally directed NOT to enforce the City's building or health and safety codes on these uses. In short, the City refused to manage these particular residential care businesses in the same manner in which it manages other businesses, including those conducted in residential zones. By creating an environment of no regulation, the City deliberately created explicit conditions driving the rampant expansion of existing, and the entrance of new, "residential care facility" business operators. The operators of "residential care facilities" intentionally design their business model to exploit the City's "6 and under" loophole, when these operators are actually operating the facilities as an integrated ,distributed whole facility. The City's intentional removal of regulation for residential care facilities combined with .the well known unique characteristics of these small coastal residential neighborhoods, has resulted in a serious over - concentration of residential care businesses, particularly alcohol and drug treatment centers. The City has formally and publicly acknowledged that these areas have been transformed into institutionalized zones. The intensity has caused well documented adverse impacts to the neighborhoods, the residents, and the disabled These issues include. increased noise,, subjecting neighbors to continual secondhand cigarette smoke, a known carcinogen, generation of significantly more trash discarded around the community and private property including discarded hypodermic needles and cigarette butts, increased unmet parking demand, an increase in nuisance behavior, overburdening the infrastructure, and exposure to infectious diseases. B. The Cffy's Has IntendonatlyRefused to Implement the FA*fIng Ordinances Causing Harm to Individual Residents and the Communfty. The City staff has been unwilling to enforce its codes to maintain the integrity of its residential neighborhoods and special plan districts. As you may know, our firm, as well as individual citizens, sought a number of public records relating to residential care facilities. Ever though the City made it difficult to obtain such records, the citizens were eventually able to prevail. Our review of the records confirms that the City has failed to enforce its permit requirement use and subsequently enacted federal exception permit provisions, even though it was legally required to do so under its own regulations. As a result, a number of aggressive, alcohol and drug treatment center business operators established large facilities within the City's small, dense coastal residential neighborhoods without ever having obtained use review as required by the City's laws. In addition, certificates of occupancy were provided to a number of group homes without the proper fire clearances. The City was so grossly negligent, it failed to ever establish a clear protocol to handle community complaints. Ms. LaVonne M. Harkless October 9, 2007 Page 4 G The City 's Failure to Promptly Adopt New Ordinances that Adequately Regulate Residential Care Facilities has, and Continues to Cause, harm to Individual Residents and the Community. The continuing institutionalization and intensification in the City's small coastal neighborhoods and resulting physical and health and safety impacts, caused citizens at their own expense, in support of the public interest, to expend tens of thousands of dollars to address City regulations, ordinances and practices. The City's position on the new Ordinances is wholly inconsistent with the General Plan, and legal requirements to ensure that the zoning ordinance is consistent with the General Plan. For example, the General Plan Land Use Element claims the City has a conservative growth strategy. However, it knowingly facilitated the rampant unchecked growth of residential care uses creating over concentration and institutionalized environment in residential zones. The City specifically violated the General Plan Land Use Goals: LULI, LULL LU1.3, LUTA, and LU1.5; and Land Use Policies: LU2.1, LU2.3, LU2.4, LU2.5, LU2.6, LU3.1, LU32, LU3.3, LUIS, LU3.6, LU4.1, LU4.2, LU5.1.1, LU5.I.2, LU5.13, LU5.1.4, LU5.1.7, and LU5.1.8. Over 500 citizens signed and submitted a Petition to the City for an Urgent Moratorium to stop the continued establishment and expansion of these residential care facility and related "residential care" businesses. The City did enact a temporary Moratorium, but ignored our advice and crafted the Moratorium in such a manner that some operators have contended that there are significant loopholes that allowed these businesses continued expansion. During the period of the Moratorium, the City and its attorneys were instructed by the City Council to "develop local ordinances to regulate residential care facility uses to the maximum extant legally possible." City Council and staff have received input from the citizens about case legal and statutory law, and policy benchmarks supporting the proposed regulation of these uses. The Citizens have continued to invest considerable time and expense in the spirit of collaboration and cooperation. The City staff did not carry out the Council's direction. Instead, the City staff deliberately proceeded down a path which advocated only minimal control of "residential care facilities ", best described as favorable to the "residential care" business investors and operators, at the expense of the citizens and the community. The City staff has resisted incorporating needed reforms into the ordinances, insisting that before they do so, the citizens must "provide more evidence:" evidence of the location and character of these facilities, and of impacts on neighborhoods and the community. There is more than sufficient evidence already available to support a position of over - concentration and its detriment to the character and integrity of the City's residential neighborhoods. The City Council and. staff's position places the burden on the citizens to do the City's job. Worse yet, it demonstrates that the City staff has not been listening to the citizens' complaints all of these years concerning the impacts caused by these facilities and their over - concentration. Ms. LaVonne M. Harkless October 9, 2007 Page 5 Instead of focusing on the specific "residential care facilities" issue in particular, alcohol and drug treatment centers — the City staffs approach has been to draft regulations affecting a broad spectrum of uses; uses that already are extensively regulated by the City such as vacation rentals. This has slowed down the process, and obfuscated the issue. The citizens have made every effort, beyond reason or equity, to provide the City staff with information, cooperation, and expertise. The City staff asked that the citizens provide detailed comments on the ordinances. Despite the City's refusal to provide a copy of the draft ordinance presented to the City's Planning Commission in an electronic form, we promptly responded by providing a strikeout/underline version of the ordinances. This document was largely ignored by the City staff. The citizens have attempted to walk through the "public process" with the Planning Commission and City staff to voice their opinions, and invest in development of sound ordinances. We have provided a sound legal basis for the requested reforms and a sound public planning policy foundation that would enable the City to take a reasonable position in its ordinances to regulate these uses. At every opportunity, the City staff, on its own or pursuant to someone's direction, has used procedural delays to avoid getting the issues resolved at the Planning Commission, and forwarding a legitimate, meaningful recommendation to the City Council. Citizens and their advisors have not been af%rded either equitable voice, or serious consideration. There have been no meaningful opportunities for exchange on the pertinent issues involving the draft residential care ordinances. At the public hearings, the citizens and their advisors have been offered a limited, clearly unsatisfactory amount of time to present their case, and engage in meaningful dialog with the Planning Commission about the issues and various recommendations. Yet, the City's outside counsel and staff have unlimited time and opportunity to press their case. This is particularly problematic when the City staff and outside counsel present the Planning Commission with incorrect and misleading information, and staff recommendations are based on invalid information and analysis. 2. THE CITIZENS DEMAND TIM FOLLOWING: That the City Council promptly adopt ordinances amending its Municipal Code that include as a minimum the following: (a) Establish an overlay zone that includes the impacted communities and those with similar characteristics of Lido Isle and village, Balboa Peninsula, Balboa Island; West Newport, Corona del Mar (old & village), Newport Heights; and Santa Ana Heights. (b) Require within the overlay zone that all new and existing residential care facilities be a minimum of 1,000 feet apart Rom each other. Ms. LaVonne M. Harkless October 9, 2007 Page 7 Orange, while providing guidance to the City on its revised 2004 ordinance. The evidence also indicates that Mr. Burnham did not disclose on his Forms 700 (Statement of Economic Interest) for 2003 — 2004 period his activities and his wife's, Kathleen Burnham, compensation as a director of the Drug Court Foundation of Orange County. Further, the evidence indicates that the City did not require Mr. Burnham to complete and file a Form 700 for 2004 — 2007 when he was a consulting attorney with the City. He was not required to file the form even though other consultants did so. In appearance and in fact, he should have been conflicted out of his participation in the City's negotiation of these issues. City Attorneys are, as all lawyers, subject to the Cammia Rules of Professional Conduct, Under to Rules 3 -310, subdivision (B), an attorney may not continue to represent a client without providing written disclosure where: (1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; or, (2) The member knows or reasonably should know that (a) The member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and (b) The previous relationship would substantially affect the member's representation; or (3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter; or (4) The member has or had a legal, business, financial, or Professional interest in the subject matter of the representation." Further, Rules 3 -310, subdivision (E) require that "[a) member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the number has obtained confidential information material to the employment." We are not aware of any such written disclosures being made with respect to these Rules. The government process is supposed to be fair and transparent. Here, that does not appear to be the case. The participation by individuals with an apparent conflict of interest, in the development of ordinances regulating residential care facilities, and presence of malfeasance (and pattern of retaliation) has resulted in a violation of the Citizens' procedural due process Ms. LaVonne M. Harkless October 9, 2007 Page 8 rights. Hearings must be held by disinterested, unbiased decision makers. The right to unbiased decisions makers, was clearly established law at the time of the City's actions. (Bullock v. City and County ofSan Francisco (1990) 221 Cal.App.3d 1072, 1091; Clark v. Hermosa Beach (1996) 48 Cal.App.4th 1152,1172 -73; Stivers v. Pierce (9th Cir. 1995) 71 F.3d 732, 74748.) Likewise, the City cannot evade the public hearing process by allowing a potentially conflicted individual to work behind the scenes on those matters he is likely conflicted. But, this is exactly what has occurred. The entire City Attorney's office and potentially other City staff have been infected with this conflict THE CITIZENS DEMAND THE FOLLOWING: That the City Council: i) Fully cooperate with any inquiries conducted by the Fair Political Practices Commission of Robert Burnham, and other agencies as may conduct inquiry. ii) Require Mr. Burnham to complete and file Form 700 for periods 2004 - 2007 when he was a contract consulting attorney with the City. iii) Determine whether there.has been written disclosure by Mr. Burnham and whether the City has formally ,legally waived any conflicts that exist iv) Disqualify the City Attorneys Office from all participation in this matter and establish an ethical wall. A Further ConjUcis of interest in this Mather Cause Harm to Individual Residents and the Community. If any present and former members of the City Council ,staff or other policy bodies of the City have, or in. the past have had, any direct or indirect financial in other operations of residential care facilities or related types of `residential care facility" uses, the law demands that such ties bb disclosed. For example, the Citizens have obtained information that the City's current Mayor Steven Rosansky may have, or had, undisclosed involvement with residential care facilities operating in the City. If this is true, then the Mayor's participation in this matter will impermissibly taint the proceedings. It is critical that the City immediately conduct an open and impartial investigation of this allegation. .1 Ms. LaVonne M. Harkless October 9, 2007 Page 9 THE CIT ZENS DEMAND THE FOLLOWING. That the City Council: i) Conduct an ethics probe with outside, unrelated investigations to determine whether the Mayor Steven Rosansky may have, or have had, undisclosed involvement with residential care facilities operating in the City. u) If so, demand that the Mayor refrain from participating at hearings or behind the scenes in this matter. iii) Provide similar direction to members of the City Council, staff and other policy - making bodies concerning attestation and reporting of Conflict, relative to their interests in "residential care facilities." The City Council has a fiduciary duty to protect all of its citizens. To do this, the City Council must first disclose all relationships it has with the operators of these residential care facilities, and disqualify those members that have ties to the operators. The City has 45 days to comply with the Citizen's demands. Very truly yours, /Z'- Y 1 ' Michael L. Tidus MLT:seb cc: City Council Members (via e-mail) City Manager (via e-mail) 744789.3 Ms. LaVonne M. Harkless October 9, 2007 Page 9 THE CIT ZENS DEMAND THE FOLLOWING. That the City Council: i) Conduct an ethics probe with outside, unrelated investigations to determine whether the Mayor Steven Rosansky may have, or have had, undisclosed involvement with residential care facilities operating in the City. u) If so, demand that the Mayor refrain from participating at hearings or behind the scenes in this matter. iii) Provide similar direction to members of the City Council, staff and other policy - making bodies concerning attestation and reporting of Conflict, relative to their interests in "residential care facilities." The City Council has a fiduciary duty to protect all of its citizens. To do this, the City Council must first disclose all relationships it has with the operators of these residential care facilities, and disqualify those members that have ties to the operators. The City has 45 days to comply with the Citizen's demands. Very truly yours, /Z'- Y 1 ' Michael L. Tidus MLT:seb cc: City Council Members (via e-mail) City Manager (via e-mail) 744789.3