HomeMy WebLinkAbout27 - Morningside Recovery Development AgreementCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 27
September 14, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Office of the City Attorney
David R. Hunt, City Attorney
949 - 644 -3131; dhunt @newportbeachca.gov
Planning Department
Patrick J. Alford, Planning Manager
949 - 644 -3235; palford @newportbeachca.gov
SUBJECT: Morningside Recovery Development Agreement
ISSUE:
Staff is recommending approval of a development agreement between Morningside
Recovery and the City of Newport Beach providing an entitlement for the operation of
residential care facilities in the City while also containing limitations on the total number of
clients in recovery for drug and alcohol abuse in the City, on occupancies at its current
facilities and within the Peninsula Zone, and controls on the operation of these facilities.
RECOMMENDATION:
1) Conduct a public hearing; and
2) Introduce Ordinance No. approving Development Agreement No. DA2010 -001
and pass to second reading on September 28, 2010 (Attachment No. CC 1).
DISCUSSION:
Introduction:
On April 27, 2010, the City entered into a Settlement and Release Agreement with
Morningside Recovery which would allow the operation of its residential care facilities
with limitations on the total number of clients and controls on the operation of these
facilities.
Morningside Recovery Development Agreement
September 14, 2010
Page 2
Development Agreement DA2010 -001 (Attachment CC 2) will serve as a "Zoning
Implementation and Public Benefit Agreement" (Zoning Agreement) and will be included
as an attachment to the Settlement and Release Agreement (Settlement Agreement)
between the City and Morningside Recovery. Only the Development Agreement is the
subject of this public hearing. The Settlement and Release Agreement was approved in
closed session.
Analysis:
The City Council is tasked with determining if the Development Agreement is consistent
with Chapter 15.45 (Development Agreements) of the Newport Beach Municipal Code
(NBMC) and the General Plan.
The restrictions contained in the Development Agreement are consistent with Section
15.45.040 (Contents) of the NBMC, which requires a development agreement to specify
the permitted uses of the property and the density or intensity of use. Section
15.45.040 also provides that a development agreement may contain such other
provisions as may be considered necessary or proper by the City Council to further
legitimate City interest or to protect the public health, safety and welfare so long as such
terms are not inconsistent with the provisions of state law relating to development
agreements, nor inconsistent with the ordinances, policies, plans or resolutions of the
City. Finally, NBMC Section 15.45.040 requires the development agreement to specify
the duration of the agreement. The term of the Development Agreement would
commence on the effective date (on the 91 st day after adoption by the City Council) and
will expire 25 years thereafter.
The operational conditions contained in the Development Agreement will minimize
impacts to residential neighborhoods and protect public health, safety and welfare. The
Development Agreement's operational conditions are similar to those that the City
would have required under a use permit. The occupancy level limits and dispersal
requirements contained in the Development Agreement will assist in reducing the over -
concentration of recovery homes and sober living homes in residential areas and place
limits on the establishment of new facilities, including licensed facilities with six or fewer
residents. Had this Agreement not been reached, Morningside could potentially have
opened an unlimited number of recovery facilities within the City. State law permits
Morningside to establish any number of licensed alcohol and drug abuse recovery and
treatment facilities for six or fewer residents in any residential location, and prohibits the
City from requiring use permits or limiting residential zones in which such facilities can
establish. In addition, the Development Agreement includes restrictions that prohibit
Morningside from providing housing or treatment services to any individuals who have
been convicted of certain categories of criminal offenses. This protection would also not
be available without the entering into of this Development Agreement. Therefore, the
Development Agreement is consistent with Land Use Policy LU 6.2.7 (Care Facilities),
which states:
Morningside Recovery Development Agreement
September 14, 2010
Page 3
Regulate Day Care and Residential Care facilities to the maximum extent allowed by
federal and state law to minimize impacts on residential neighborhoods, and actively
pursue federal and state legislation that would give cities the ability to prohibit an over -
concentration of recovery homes or sober living homes in residential areas.
Planning Commission Action:
On June 3, 2010, the Planning Commission held a public hearing on the Development
Agreement DA2010 -001. On 6 to 0 vote (one abstention), the Commission
recommended approval of the Development Agreement, finding it consistent with
Chapter 15.45 (Development Agreements) of the NBMC and the General Plan. The
Commission also recommended the following revisions:
1. The number of beds shall be restricted to the number of clients plus one bed for
staff.
2. The occupancy limit shall be changed from three (3) clients per bedroom to no
more than two (2) clients per bedroom unless the size of the structure warrants a
larger occupancy for any single bedroom.
3. The facility located at 29 Ima Loa shall be relocated within a reasonable amount of
time due to the fact that it is located within a private condominium complex with
private streets and has shared common walls with private residences.
4. The Compliance Report Template included as Exhibit "3" to the Development
Agreement shall include the operator's certification as to compliance with all
operating conditions.
5. The Compliance Reports shall be submitted on a quarterly basis.
6. Include additional remedies for non - compliance with terms of Development
Agreement.
Amendments reflecting Planning Commission Recommendations:
Staff has revised the attached Development Agreement to incorporate several of the
Planning Commission's recommendations. The occupancy limit of each Morningside
facility shall be restricted to no more than two (2) clients per bedroom, unless the size of
the structure warrants a larger occupancy for any single bedroom. The revised
Development Agreement requires quarterly Compliance Reports, and the Compliance
Report form includes the operator's certification under penalty of perjury that
Morningside is in compliance with all operating conditions. Additional remedies for non-
compliance with the terms of the Agreement are also included. The recommendation
Morningside Recovery Development Agreement
September 14, 2010
Page 4
that 29 Ima Loa be relocated was not incorporated, due to the facility's small resident
population (six).
Other Amendments:
Since the Planning Commission's public hearing on this matter, Morningside has
continued the process of dispersing its facilities out of the West Newport area of the
Peninsula zone. Morningside will be relocating up to 12 female clients to a triplex in a
district zoned for Multi - Family Residential (MFR) use at 100 Via Antibes, 102 Via
Antibes and 208 Via Lido Soud. (Until, July 31, 2010, a residential care facility for up to
12 female clients was operated by another facility operator, Sober Living by the Sea, at
this location.) Morningside has also stated that it will close its facilities at 5015 A River
and 5015 B River after September 30, 2010. During this transitional period,
Morningside staff has agreed to report the numbers and location of all clients to the City
to demonstrate that the 30 client limit in the Peninsula Zone is not exceeded.
In addition, the Operational Conditions (Exhibit A of the Development Agreement) have
been amended to prohibit Morningside from housing any client within the City who is
required to register as a sex offender or criminal street gang member by the California
Penal Code, or any client whose housing or treatment costs are paid for by the State of
California through a funded Proposition 36 program. The Operational Conditions were
also amended to require that Morningside comply with the restrictions imposed by
NBMC Section 20.05.03, which limits the number of parolees - probationers per
residence.
Morningside has voluntarily agreed to these further restrictions. While the NBMC
prohibits Parolee- Probationer Homes, that prohibition is less restrictive than the
prohibitions provided under the Development Agreement. Under the Development
Agreement, Morningside has agreed not to house even a single registered sex offender
or criminal street gang member, and to not accept any Proposition 36- funded diversion
clients. Staff believes that this aspect of the Development Agreement furthers the City's
interest in protecting public health, safety and welfare.
Environmental Review:
Consideration and adoption of the Development Agreement has been determined to be
categorically exempt under the requirements of the California Environmental Quality Act
(CEQA) under Class 1 (Existing Facilities). This class of projects has been determined
not to have a significant effect on the environment and is exempt from the provisions of
CEQA. This activity is also covered by the general rule that CEQA applies only to
projects that have the potential for causing a significant effect on the environment
(Section 15061(b)(3) of the CEQA Guidelines). It can be seen with certainty that there is
no possibility that this activity will have a significant effect on the environment and it is
not subject to CEQA.
Morningside Recovery Development Agreement
September 14, 2010
Page 5
Public Notice:
Notice of this hearing was published in the Daily Pilot, mailed to property owners and
occupants within 300 feet of the property and posted at the site a minimum of 10 days in
advance of this hearing consistent with the Municipal Code. Additionally, the item
appeared upon the agenda for this meeting, which was posted at City Hall and on the
City website. Furthermore, pursuant to Section 15.45.050 (Public Hearing — Notice) of
the Municipal Code, this meets the public notice requirements provided in Sections
65090 and 65091 of the California Government Code.
Prepared and Submitted by:
C4r/(/ FDl
P.africk J. Alford, Plannin anager
Attachments
Prepared and Submitted by:
OFFICE OF THE CITY ATTORNEY
LL. 4 -
David R. Hunt, City A torney
CC 1 Draft ordinance
CC 2 Development Agreement (Zoning Implementation and Public Benefit
Agreement)
CC 3 June 3, 2010 Planning Commission staff report
CC 4 June 3, 2010 Planning Commission meeting minutes
ATTACHMENT CC1
City Council Staff Report (9/14/10)
Morningside Recovery Development Agreement
Draft ordinance
ORDINANCE NO. 2010-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH CITY COUNCIL APPROVING
DEVELOPMENT AGREEMENT NO. 2010 -001 (ZONING
IMPLEMENTATION AND PUBLIC BENEFIT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
MORNINGSIDE RECOVERY, LLC) (PA2010 -069)
WHEREAS, when adopting Ordinance No. 2008 -005 on January 22, 2008, the City
Council of the City of Newport Beach found that the City has a disproportionately high
number of licensed and unlicensed residential group uses serving the disabled recovering
from drug or alcohol use; and
WHEREAS, when adopting Ordinance No. 2008 -005, evidence was presented of
increasing numbers of residential care facilities that do not house permanent residents and
operate in a manner similar to boarding house or institutional uses rather than as single
housekeeping units; and
WHEREAS, when adopting Ordinance No. 2008 -005, evidence was presented that
certain areas of the City, including West Newport and the Balboa Peninsula have significantly
higher numbers of group residential uses than other parts of the City and other parts of the
state, and that secondary impacts from group residential uses change the residential
character of a neighborhood and are not beneficial to persons in recovery as they attempt to
re- integrate their new sober lifestyle into typical society; and
WHEREAS, the City has prohibited all other group residential uses that are not single
housekeeping units from establishing in residential zones since 1997; and
WHEREAS, the City recognizes and agrees that the federal Fair Housing Act and
other state and federal laws provide that individuals recovering from drug and alcohol
addiction are deemed disabled and are entitled to housing opportunities. As such, Ordinance
2008 -005 provides for applicants representing the disabled or the disabled themselves to
apply for reasonable accommodation from all or portions of the Ordinance to ensure that
housing opportunities for the disabled continue to be provided in all residential areas of the
Newport Beach community; and
WHEREAS, the City desires to maintain zoning provisions benefiting disabled persons
by allowing disabled persons to live in residential districts, while forbidding all other group
residential uses in residential districts, but desires to ensure that the uses are consistent with
the residential character of neighborhoods and do not recreate an institutional environment
that would defeat the purpose of community -based care; and
WHEREAS, to achieve these goals, on April 27, 2010, the City of Newport Beach
entered into a Settlement and Release Agreement with Morningside Recovery, LLC, which
would allow the operation of its residential care facilities with limitations on the total number of
clients and controls on the operation and location of these facilities; and
WHEREAS, Development Agreement No. DA2010 -001 consists of a Zoning
Implementation and Public Benefit Agreement between the City of Newport Beach and
Morningside Recovery, LLC; and
WHEREAS, on June 3, 2010, the Planning Commission held a public hearing in the City
Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time,
place and purpose of the meeting was given in accordance with the Newport Beach
Municipal Code. Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this meeting. Pursuant to Section 15.45.050 of the Municipal Code,
this meets the public notice requirements provided in Sections 65090 and 65091 of the
California Government Code; and
WHEREAS, the Planning Commission found that the Development Agreement is
consistent with Chapter 15.45 of the Municipal Code and California Government Code
Section 65865.2 and is consistent with the General Plan; and
WHEREAS, consideration and adoption of the Development Agreement has been
determined to be categorically exempt under the requirements of the California Environmental
Quality Act (CEQA) under Class 1 (Existing Facilities). This class of projects has been
determined not to have a significant effect on the environment and is exempt from the provisions
of CEQA. This activity is also covered by the general rule that CEQA applies only to projects
that have the potential for causing a significant effect on the environment (Section 15061(b)(3)
of the CEQA Guidelines). It can be seen with certainty that there is no possibility that this
activity will have a significant effect on the environment and it is not subject to CEQA; and
WHEREAS, The Development Agreement specifies the permitted uses of the property
the density or intensity of use, and the duration of the agreement; and
WHEREAS, the occupancy level limits, location requirements, and operational
conditions contained in the Development Agreement will protect the public health, safety and
welfare; and
WHEREAS, the Development Agreement is consistent with the General Plan, as the
operational conditions will minimize impacts to residential neighborhoods and the occupancy
level limits and dispersal requirements will assist in reducing the over - concentration of
recovery homes and sober living homes in residential areas.
NOW THEREFORE, the City Council of the City of Newport Beach, California, hereby
ordains as follows:
SECTION 1: The City Council here by adopts the recitals above as their findings in
support of the passage of this ordinance.
SECTION 2: Development Agreement No. 2010 -001 shall be adopted as provided in
Exhibit "A ".
2
SECTION 3: 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 on the 91St day after its adoption.
SECTION 4: This ordinance was introduced at a regular meeting of the City Council of
the City of Newport Beach, held on the 14th day of September, 2010, and adopted
on the 28th day of September, 2010, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MAYOR
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
a
avid R. Hunt Cit A
Y me Y
For the City of Newport Beach
ATTACHMENT CC2
City Council Staff Report (9/14110)
Morningside Recovery Development Agreement
Development Agreement (Zoning Implementation and
Public Benefit Agreement)
(EXHIBIT A)
ZONING IMPLEMENTATION
AND PUBLIC BENEFIT AGREEMENT
(Pursuant to California Government Code §§ 65864 - 65869.5)
This Zoning Implementation and Public Benefit Agreement (the "ZONING
AGREEMENT ") is entered into on , 2010, by and between the CITY
OF NEWPORT BEACH, a charter city ( "CITY ") on the one hand, and
MORNINGSIDE RECOVERY, LLC, ( "MORNINGSIDE ") on the other. The CITY
and MORNINGSIDE are collectively referred to as the "PARTIES."
I.
Recitals
A. The City Council hereby finds this ZONING AGREEMENT is
consistent with the provisions of California Government Code §65867, the City of
Newport Beach Municipal Code Chapter 15.45, and the City's General Plan.
B. On June 3, 2010, the City's Planning Commission held a public
hearing on this ZONING AGREEMENT, made findings and determinations with
respect to this ZONING AGREEMENT, and recommended to the City Council that
the City Council approve this ZONING AGREEMENT.
C. On September 14, 2010, the City Council also held a public hearing
on this ZONING AGREEMENT and considered the Planning Commission's
recommendations and testimony and information submitted by City staff,
MORNINGSIDE, and members of the public. On September 28, 2010, pursuant to
applicable state law (California Government Code §§ 65864- 65869.5) and local law
(City of Newport Beach Municipal Code Chapter 15.45), the City Council passed its
Ordinance No. finding this ZONING AGREEMENT to be consistent with
the City of Newport Beach General Plan and approving this ZONING
AGREEMENT.
II.
Definitions
The following terms when used in this ZONING AGREEMENT shall have the
meanings set forth below:
A. "BLOCK" shall mean an area that is bounded on all sides by streets. In
the Peninsula Zone, a BLOCK length is 617 feet, which is the calculable median
block length within the City of Newport Beach's Nonstandard Subdivision Areas.
B. "CITY" shall mean the City of Newport Beach and its City Council.
[L09 -0011] - Zoning Agreement - Morningside - 10.09.02 Final
C. "CLIENT" (or "CLIENTS ") shall mean any persons residing at any
MORNINGSIDE FACILITY for the purpose of recovering from drug and /or alcohol
abuse.
D. "CLIENT BEDS" shall mean physical accommodations in each Facility
where Clients sleep or otherwise overnight.
E. "CONTROL" (including the terms "controlling," "controlled by," and "under
common control with, ") shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or otherwise.
F. "FACILITY" (or "FACILITIES ") is a residential unit used or occupied by
persons in recovery from alcoholism and /or drug abuse. Facilities may be "licensed
facilities" or unlicensed "sober living homes." As used in this AGREEMENT, all
facilities constitute "residential care facility' uses within the context of the City's
zoning ordinance.
G. "GENERAL PLAN" shall mean the 2006 General Plan adopted by the
City Council on July 25, 2006, by Resolution No. 2006 -76 as periodically amended.
The Land Use Plan of the Land Use Element of the General Plan was approved by
Newport Beach voters in a general election on November 7, 2006.
H. "LICENSED FACILITIES" shall mean alcoholism and drug abuse
recovery facilities licensed by the California Department of Alcohol and Drug
Programs ( "ADP ").
I. "PARTY" or "PARTIES" shall mean either the CITY or MORNINGSIDE
or any of MORNINGSIDE's affiliates or both, as determined by the context.
J. "PROPERTY" or "PROPERTIES" shall mean MORNINGSIDE's
facilities at 4823 A River Avenue and 4823 B River Avenue; 112 B 39th Street; 5015
A River Avenue and 5015 B River Avenue until September 30, 2010; 100 Via
Antibes, 102 Via Antibes and 208 Via Lido Soud beginning September 1, 2010; and
29 Ima Loa Court in Newport Beach. Additionally, this ZONING AGREEMENT shall
apply to parcels not yet identified upon which MORNINGSIDE may operate facilities
within CITY in the future.
K. "SOBER LIVING HOMES" shall mean alcoholism and /or drug abuse
recovery facilities that are not licensed by the ADP.
L. "7- and - OVER" shall mean any FACILITY licensed by the ADP to
house more than 7 persons in recovery for drug and /or alcohol abuse.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09 -0011] — Zoning Agreement - Morningside — 10. 09.02 Final
2
Ill.
Agreement
A. Terms of Agreement. This ZONING AGREEMENT allows
MORNINGSIDE a vested right to the following:
1.) MORNINGSIDE may operate FACILITIES with up to thirty -six
(36) CLIENTS and thirty -six (36) CLIENT BEDS in Newport
Beach pursuant to certain operational guidelines described
more particularly in Exhibit 1 attached hereto. Except as
described in Section A (3), below, MORNINGSIDE may not
exceed 36 CLIENTS and 36 CLIENT BEDS in Newport Beach.
2.) MORNINGSIDE may house up to 30 of its 36 total CLIENTS
and have up to 30 of its CLIENT BEDS in the Newport Beach
"Peninsula Zone." The Peninsula Zone is more particularly
defined in Exhibit 2 attached hereto;
3.) MORNINGSIDE can exceed its 36 CLIENT and 36 CLIENT
BED maximum only by acquiring 7- and -OVER FACILITIES that
have obtained use permits under Chapter 20.91A of the
Newport Beach Municipal Code.
4.) MORNINGSIDE shall conduct its operations in Newport Beach
in conformance with the Operational Conditions attached
hereto as Exhibit 1.
5.) MORNINGSIDE will comply with the following dispersal and
distancing requirements for its FACILITIES in Newport Beach:
a. Only one (1) treatment home or sober living facility (licensed
or unlicensed by ADP) is allowed per BLOCK, and no
FACILITIES facing each other;
b. No FACILITIES (licensed or unlicensed by ADP) within
1,000 feet of public elementary schools or large, state -
licensed day -care facilities.
B. Significant Public Benefits. The significant public benefits that this
ZONING AGREEMENT provides include, but are not limited to, the following:
1.) Settlement and avoidance of litigation costs, including the
continued expenditure of attorneys' fees;
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09 -0011] — Zoning Agreement - Morningside — 10.09.02 Final
3
2.) Preservation of the regulatory ordinance that was the subject
matter of this lawsuit;
3.) Avoidance of potential federal administrative proceedings;
4.) A reduction and limitation on the size of a residential care
operation in Newport Beach, including a limitation on
LICENSED FACILITIES;
5.) Dispersal of LICENSED
HOMES to reduce the
residential districts;
FACILITIES and SOBER LIVING
concentration thereof in the City's
6.) The placement of operational controls on said FACILITIES to
reduce the perceived negative impacts on the City's residential
neighborhoods;
C. General Plan Consistency and Zoning Implementation. This ZONING
AGREEMENT and the regulations applied herein to MORNINGSIDE will cause the
City of Newport Beach's zoning and other land use regulations to remain consistent
with the GENERAL PLAN.
D. Warranties and Representations. Both PARTIES represent they have
legal authority to enter into this ZONING AGREEMENT and the remainder of the
agreements and documents that comprise the settlement documents herein, and
that the necessary authorizations have been obtained, by resolution or other action,
and that the persons whose names appear as signatories below were authorized to
accept this ZONING AGREEMENT on behalf of the PARTY under whose name
they signed.
1.) Each PARTY specifically represents and warrants that it has
the legal authority to enter into a ZONING AGREEMENT of the
type and kind herein, and,
2.) The City of Newport Beach represents and warrants that this
ZONING AGREEMENT and the regulations applied to
PROPERTY are:
a. Consistent with the GENERAL PLAN for the City of Newport
Beach and any Specific Plans that apply to the area in
which any portion of MORNINGSIDE's PROPERTIES are
located, and;
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09 -00111 — Zoning Agreement - Morningside — 10.09.02 Final
4
b. Consistent with the Local Coastal Land Use Plan ( "CLUP ")
for the City of Newport Beach and that the CLUP has been
approved by the California Coastal Commission.
E. Operation of Property; Applicable Regulations. Other than as
expressly set forth in this ZONING AGREEMENT, the terms and conditions
concerning the operation of the PROPERTIES, including but not limited to the
permitted uses, density, intensity of use, and the location of buildings involved, shall
be those set forth in the City of Newport Beach's ordinances and regulations. The
City of Newport Beach shall not prevent operation of the PROPERTIES in
compliance with the applicable regulations and all other applicable laws and
regulations in Section I, below.
F. Vested Rights. During the term of this ZONING AGREEMENT,
except to the extent the City of Newport Beach reserves its discretion as expressly
set forth in this ZONING AGREEMENT or in the applicable regulations and all other
applicable laws and regulations specified in Section I, MORNINGSIDE shall have
the vested right, within the limits and constraints of the applicable regulations, to
conduct operations of LICENSED FACILITIES and SOBER LIVING HOMES at its
PROPERTIES. In the event Ordinance 2008 -5 is repealed by action of the City
Council of the City of Newport Beach or the electorate, or if a court of competent
jurisdiction declares the Ordinance invalid or unenforceable, this ZONING
AGREEMENT shall remain in full force and effect.
G. Police Power. In all respects not provided for in this ZONING
AGREEMENT, the City of Newport Beach shall retain full rights to exercise its
police power to regulate the operation of residential care facilities on the
PROPERTIES provided such powers are applied consistently with the provisions of
state law and the terms of this ZONING AGREEMENT.
H. No Conflicting Enactments. During the term of this ZONING
AGREEMENT the City of Newport Beach shall not apply to the PROPERTIES any
City- adopted ordinance, policy, rule, regulation, or other measure relating to
operation of the FACILITIES to the extent it conflicts with this ZONING
AGREEMENT.
I. Reservations of Authority. Regardless of any provisions set forth in
this ZONING AGREEMENT to the contrary, the laws, rules, regulations, and official
policies set forth herein shall apply to and govern operations at the PROPERTIES
below in this section:
1.) Procedural Regulations. Then current procedural regulations
relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations,
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09- 0011] — Zoning Agreement - Morningside — 10. 09.02 Final
5
appeals, and any other matter of procedure shall apply to the
PROPERTY, provided that they are adopted and applied
Citywide.
2.) Consistent City Regulations. Newport Beach City ordinances,
resolutions, regulations, and official policies governing
development and building that do not conflict with the ZONING
AGREEMENT, or where MORNINGSIDE has consented in
writing to the regulations, application to the PROPERTIES.
3.) Public Health and Safety. Any Newport Beach City ordinance,
regulation, rule, program, or official policy of general application
that is necessary to protect persons on the PROPERTIES or in
the immediate community from conditions dangerous to their
health or safety. The City of Newport Beach may unilaterally
enact any ordinance, regulation, rule, program, or official policy
of general application necessary to protect persons from
conditions dangerous to their health of safety.
J. No Agency. Neither PARTY is acting as the agent of the other in any
respect. Each PARTY is an independent contracting entity with respect to the
terms, covenants, and conditions contained in this ZONING AGREEMENT. This
ZONING AGREEMENT forms no partnership, joint venture, or other association of
any kind. The only relationship between the PARTIES is that of a government
entity regulating the operation of private property by the owner or lessee of the
property.
K. Effective Date. This ZONING AGREEMENT shall not become
effective, and except as set forth in subsection (1) of this Section, neither PARTY
shall have any rights or obligations hereunder, until the "Effective Date."
1.) This ZONING AGREEMENT shall become effective on:
a. The 91St day following the City Council of the City of
Newport Beach's passage of the ordinance approving this
ZONING AGREEMENT. or
b. If a referendum or other elective challenge to the
ordinance approving this ZONING AGREEMENT qualifies
for the ballot, then on the 31 st day after the City Clerk of
the City of Newport Beach certifies that the referendum or
other elective challenge has failed to pass, or
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[109 -0011] - Zoning Agreement - Morningside - 10. 09.02 Final
6
C. If litigation is initiated to challenge this ZONING
AGREEMENT prior to the Effective Date established in
accordance with Section K (1) (a), and (b), above, then on
the 31St day after the litigation has terminated, or the time
for appeal has expired, and the legal challenge has been
unsuccessful.
2.) The term of this ZONING AGREEMENT shall commence on
the Effective Date and shall expire at the conclusion of the 25th
year thereafter. However in no event shall the term of this
ZONING AGREEMENT exceed thirty (30) years after its
execution.
3.) Stay of Ordinance 2008 -5 Pending Effective Date. Prior to the
effective date of the ordinance adopting this ZONING
AGREEMENT, or that date upon which it becomes clear that
there will be no Effective Date, whichever is later, the CITY
shall not otherwise enforce the provisions of Ordinance 2008 -5
against MORNINGSIDE.
L. Amendment or Cancellation of the Zoning Agreement. Other than
modifications of this ZONING AGREEMENT under section I subsection (3) of this
ZONING AGREEMENT, this ZONING AGREEMENT may be amended or cancelled
in whole or in part only by mutual written and executed consent of the PARTIES in
compliance with California Government Code section 65868, and City of Newport
Beach Municipal Code section 15.45.070.
M. Enforcement. Unless amended or cancelled as provided in Section L,
above, or modified or suspended pursuant to California Government Code section
65869.5, this ZONING AGREEMENT is enforceable by either PARTY despite any
change in any applicable GENERAL PLAN or Specific Plan, zoning, subdivision, or
building regulation, or other applicable ordinance or regulation adopted by the City
(including by the City's electorate), that purports to apply to any or all of the
PROPERTIES.
N. Periodic Review of Compliance. CITY and MORNINGSIDE shall each
comply in good faith with the terms of this ZONING AGREEMENT. The PARTIES
shall review this ZONING AGREEMENT at least once every 12 months from the
Effective Date for good faith compliance with its terms, consistent with Government
Code sections 65865 and 65865.1 and City of Newport Beach Municipal Code
section 15.45.080. At the reviews, MORNINGSIDE shall document the current
status of its operations. MORNINGSIDE also agrees to furnish such evidence of
good faith compliance with this ZONING AGREEMENT as the CITY may require in
the reasonable exercise of its discretion, and after reasonable notice to
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09 -0011 ] — Zoning Agreement - Morningside — 10.09.02 Final
7
MORNINGSIDE. On or before March 31st, June 30th, September 30th and
December 31st of each year during the term of this ZONING AGREEMENT,
MORNINGSIDE shall submit a Compliance Review Report, whose template is
attached hereto as Exhibit 3. The requirement of good faith compliance shall be
met upon the submittal to the CITY of an accurate Compliance Review Report,
signed by a principal of MORNINGSIDE certifying personally and on
MORNINGSIDE's behalf, demonstrating MORNINGSIDE's compliance with
operating conditions, facility locations and the number of CLIENTS and CLIENT
BEDS at each MORNINGSIDE FACILITY. The CITY, shall have the right to audit
the accuracy of the Compliance Review Report through on -site inspections of
MORNINGSIDE's FACILITIES, including its administrative headquarters, upon
reasonable notice to MORNINGSIDE and following the Inspection Protocol as
shown in Exhibit 4.
O. Events of Default and Remedies.
1.) Default by Morningside. Morningside's compliance with the
terms of this Agreement is subject to the following enforcement
provisions:
a. For Violations of the Operational Conditions: The City may,
at its sole discretion, follow its Administrative Citation
process (Newport Beach Municipal Code Chapter 1.05) to
remedy violations of the Operational Conditions until such
time as the City Council, at a noticed public hearing, deems
that Morningside is unable or unwilling to remedy the
violations and comply with the terms of this ZONING
AGREEMENT. At that point, subdivision (b) of this section
applies.
b. Pursuant to California Government Code section 65865.1, if
the CITY determines that MORNINGSIDE has not complied
in good faith with its obligations pursuant to this ZONING
AGREEMENT, the CITY shall by written notice to
MORNINGSIDE specify the manner in which
MORNINGSIDE has failed to comply and state the steps
MORNINGSIDE must take to bring itself into compliance. If
MORNINGSIDE does not commence efforts to achieve
compliance within thirty (30) days after receipt of written
notice from the CITY specifying the manner in which
MORNINGSIDE has failed to comply and diligently pursue
steps that achieve full compliance, then MORNINGSIDE
shall be deemed to be in default under the terms of this
ZONING AGREEMENT. The CITY may then seek available
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09- 00111- Zoning Agreement - Morningside — 10.09.02 Final
8
remedies as provided in Government Code section
65865.1, subsections (3) and (4), below, and section G
above.
2.) Default by City. If the CITY has not complied with any of its
obligations and limitations under this ZONING AGREEMENT,
MORNINGSIDE shall by written notice to the CITY specify the
manner in which the CITY has failed to comply and state the
steps necessary for the CITY to bring itself into compliance. If
the CITY does not commence efforts to achieve compliance
within thirty (30) days after receipt of the written notice from
MORNINGSIDE specifying the manner in which the CITY has
failed to comply and diligently pursue steps that achieve full
compliance, then the CITY shall be deemed to be in default
under the terms of this ZONING AGREEMENT.
MORNINGSIDE may then seek specific performance or similar
equitable remedy as provided in subsection (3) of Section O,
below.
3.) Specific Performance and Remedies. The PARTIES
acknowledge that remedies at law are generally inadequate
and that specific performance is appropriate for the
enforcement of this ZONING AGREEMENT. Except as
otherwise expressly provided in this section, the remedy of
specific performance or, in the alternative, a writ of mandate,
shall be the sole and exclusive remedy available to either
PARTY in the event of the default, or alleged default, by the
other.
4.) Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding between the PARTIES that seeks to
enforce the provisions of this ZONING AGREEMENT, the
prevailing party shall recover all of its actual and reasonable
costs and expenses. These costs and expenses shall include
expert witness fees, attorneys' fees, and costs of investigation
and preparation before the initiation of the action. The right to
recover these costs and expenses shall accrue upon initiation
of the action.
P. Cooperation. Each PARTY covenants to take all reasonable actions
and execute all documents that may be necessary to achieve the purposes and
objectives of this ZONING AGREEMENT.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09- 0011]— Zoning Agreement - Morningside — 10. 09.02 Final
9
Q. Force Majeure. Neither PARTY shall be deemed to be in default
where failure or delay in performance of any of its obligations under this ZONING
AGREEMENT is caused, through no fault of the PARTY whose performance is
prevented or delayed, by floods, earthquakes, other acts of God, fires, war, riots or
other hostilities, strikes or other labor hostilities, state or federal regulations, or court
actions.
R. Third Party Legal Challenge. If a third party brings a legal action
challenging the validity or enforceability of any provision of this ZONING
AGREEMENT or the applicable regulations or the manner in which the ordinance
approving this ZONING AGREEMENT was processed and approved, including the
application of the California Environmental Quality Act ( "CEQX) to that process, the
PARTIES shall defend the third party challenge jointly, and each party shall be
responsible for its legal expenses incurred in connection with the challenge, except
that either or both parties may seek recovery of all legal expenses from the third
party challenger.
S. Estoppel Certificate. At any time, either PARTY may deliver written
notice to the other PARTY that the PARTY certify in writing that, to the best of its
knowledge:
1.) This ZONING AGREEMENT is in full force and effect and is
binding on the PARTY;
2.) This ZONING AGREEMENT has not been amended or
modified either orally or in writing. If this ZONING
AGREEMENT has been amended, the PARTY providing the
certification shall identify the amendments; and,
3.) The requesting PARTY is not in default in the performance of
its obligations under this ZONING AGREEMENT. If the
requesting PARTY is in default, the other PARTY must
describe the nature of the default.
The certifying PARTY shall execute and forward the certificate within sixty (60)
days following receipt of notice. Any assignee of a PARTY's rights and obligations
hereunder, as referred to in this Section, shall be entitled to rely on the certificate.
T. Further Actions and Instruments. Each PARTY shall cooperate with
and provide reasonable assistance to the other PARTY to the extent consistent with
and necessary to implement this ZONING AGREEMENT. Upon the request of a
PARTY at any time, the other PARTY shall promptly execute, with
acknowledgement or affidavit if reasonably required, and file or record the required
instruments and writings and take any actions as may be reasonably necessary to
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(109 -0011) — Zoning Agreement - Morningside — 10. 09.02 Final
10
implement this ZONING AGREEMENT or to evidence or consummate the
transactions contemplated by this ZONING AGREEMENT.
U. Notices. Any notice or demand that shall be required or permitted by
law or any provision of this ZONING AGREEMENT shall be in writing. If the notice
or demand will be served upon a PARTY, it shall be personally served to the
PARTY; deposited in the U.S. Mail, certified, return receipt requested, and postage
prepaid; or delivered by a reliable courier service that provides a receipt showing
date and time of delivery with courier charges prepaid. The notice or demand shall
be addressed as follows:
To City: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Attn: City Manager
Fax: 949-644-3020
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
To Operator: Morningside Recovery, LLC
3404 A Via Lido
Newport Beach, California 92663
(949) 675 -0006
With a copy to: Mary Helen Beatificato
Beatificato & Associates, APC
28562 Oso Parkway, Ste. D -42
Rancho Santa Margarita, California 92688
Either PARTY may change the address stated in this Section by notice to the other
PARTY in the manner provided in this Section, and notices shall be addressed and
submitted to the new address. Notice shall be deemed to be delivered upon the
earlier of. (a) the date received; or (b) three business days after deposit in the mail
as provided above.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09- 0011]— Zoning Agreement -Morningside — 10.09.02 Final
11
V. Rules of Construction and Miscellaneous Terms.
1.) Rules of Construction. The singular includes the plural; the
masculine and neuter include the feminine; "shall" is
mandatory; "may" is permissive.
2.) Time is of the essence. Time is of the essence regarding each
provision of this ZONING AGREEMENT in which time is an
element.
3.) Waiver. Failure by a PARTY to insist upon the strict
performance of any of the provisions of this ZONING
AGREEMENT by the other PARTY, and failure by a PARTY to
exercise its rights upon a default by the other PARTY, shall not
constitute a waiver of that PARTY's right to demand strict
compliance by the other PARTY in the future.
4.) Counterparts. This ZONING AGREEMENT may be executed
in two or more counterparts, each of which shall be identical
and may be introduced in evidence or used for any other
purpose without any other counterpart, but all of which shall
together constitute one and the same ZONING AGREEMENT.
5.) Entire Agreement. Except for the Settlement Agreement, this
ZONING AGREEMENT constitutes the entire agreement and
supersedes all prior agreements and understandings, both
written and oral, between the PARTIES with respect to the
subject matter addressed in this ZONING AGREEMENT.
6.) Construction. This ZONING AGREEMENT has been drafted
after extensive negotiation and revision. Both the CITY and
MORNINGSIDE are sophisticated parties who were
represented by independent counsel throughout these
negotiations. The CITY and MORNINGSIDE each agree and
acknowledge that the terms of this ZONING AGREEMENT are
fair and reasonable, taking into account their respective
purposes, terms, and conditions. This ZONING AGREEMENT
shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract
construction or interpretation shall be used to construe the
whole or any part of this ZONING AGREEMENT in favor of, or
against, either PARTY.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09- 0011]— Zoning Agreement - Momingside — 10.09.02 Final
12
7.) No Third Party Beneficiaries. The only parties to this ZONING
AGREEMENT are the CITY and MORNINGSIDE. This
ZONING AGREEMENT does not involve any third party
beneficiaries, and it is not intended and shall not be construed
to benefit or to be enforceable by any other person or entity.
8.) Applicable Law and Venue. This ZONING AGREEMENT shall
be construed and enforced consistent with the internal laws of
the State of California. Any action arising under this ZONING
AGREEMENT or brought by any PARTY for the purpose of
enforcing, construing, or determining the validity of any
provision of this ZONING AGREEMENT shall be filed and tried
in the Superior Court of the County of Orange, State of
California, or the United States District Court for the Central
District of California. The PARTIES waive all provisions of law
providing for the removal or change of venue to any other
court.
9.) Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect construction
or interpretation of this ZONING AGREEMENT.
10.) Authority to Execute. The persons executing this ZONING
AGREEMENT warrant and represent that they have the
authority to execute this ZONING AGREEMENT on behalf of
the entity for which they are executing this ZONING
AGREEMENT. They further warrant and represent that they
have the authority to bind their respective PARTIES to the
performance of its obligations under the ZONING
AGREEMENT.
The agreement of the parties to the terms and conditions of this Zoning
Agreement is evidenced by the signatures below.
"CITY ":
CITY OF NEWPORT BEACH
in
"MORNINGSIDE ":
MORNINGSIDE RECOVERY, LLC
M
Keith D. Curry David Gates
Title: Mayor of Newport Beach Title: Chief Operating Officer
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09- 0011] — Zoning Agreement - Morningside — 10.09.02 Final
13
APPROVED AS TO FORM:
David R
Title: City Attorney
City of Newport Beach
ATTEST:
In
Leilani Brown
Title: City Clerk
City of Newport Beach
MORNINGSIDE RECOVERY, LLC
Candace Bruce
Title: Chief Executive Officer
APPROVED AS TO FORM:
By:
Mary Helen Beatificato
Title: Counsel for Morningside
Recovery, LLC
[End of Document and Signatures]
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09 -0011] — Zoning Agreement - Morningside — 10. 09.02 Final
14
EXHIBIT 1
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
EXHIBIT 1
OPERATIONAL CONDITIONS
for
MORNINGSIDE RECOVERY, LLC
1. Occupancy Level. The operator of Morningside Recovery, LLC, hereinafter
referred to as "Operator," is limited to a total of thirty -six (36) Clients and thirty six
(36) Client Beds in the City of Newport Beach, and shall limit occupancy of its
current facilities to the following:
a. 4823 A River Avenue — 6 Client and Client Bed maximum
b. 4823 B River Avenue — 6 Client and Client Bed maximum
c. 5015 A River Avenue — 6 Client and Client Bed maximum through
September 30, 2010 only
d. 5015 B River Avenue — 6 Client and Client Bed maximum through
September 30, 2010 only
e. 112 B 39th Street — 6 Client and Client Bed maximum
f. 29 Ima Loa Court — 6 Client and Client Bed maximum
g. 100 Via Antibes, 102 Via Antibes, and 208 Via Lido Soud — 12 Client
and Client Bed maximum, beginning September 1, 2010
The above occupancy levels reflect a maximum of thirty -six (36) Clients and
Client Beds citywide, with a maximum of thirty (30) Clients and Client Beds in the
Peninsula Zone. The Client counts are exclusive of one staff member who also
may reside at each facility. Morningside agrees to manage its Client populations
during September 2010 so that its Client count and Client Bed count do not
exceed thirty (30) within the Peninsula Zone.
The boundaries of the Peninsula Zone are more particularly defined and depicted
in Exhibit 2 of the corresponding Zoning Agreement. Operator may move
Clients from the above properties into other properties but must maintain the 30
Client and Client Bed cap in the Peninsula Zone and 36 total Client and Client
Bed cap citywide, provided that Operator maintains the dispersion standards in
Section III A, subsections 5 (a) & (b) of the Zoning Agreement.
2. Staffing. Operator shall have enough staff to appropriately and responsibly
manage each facility; including at least one qualified manager on -site or on -call
at all times (24 hours a day, seven days each week).
[L09 -00111 Zoning Agreement - Morningside - Exhibit 1 10. 08.04
112 8 7- 000 711 2044 2M. doc
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
3. Governmental Referrals. Operator shall comply with the restrictions imposed by
Newport Beach Municipal Code Section 20.05.030 which limits the number of
parolees - probationers per residence with the additional limitation that Operator
shall not house any client (1) who is required to register as a sex
offender pursuant to Penal Code Sections 290, et seq.; or (2) who is required to
register as a criminal street gang member pursuant to Penal Code Sections
186.30 et seq.; or (3) whose housing or other costs of treatment are paid for by
the state in a funded Proposition 36 program.
4. Assembly Uses. Assembly uses are prohibited in these facilities, except those
that are limited solely to Client residents of the facility and facility staff (and in
some cases small meetings of a Client's family members with facility staff).
5. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the City of Newport Beach's
Municipal Code, all other laws and best industry standards and practices.
6. Trash and Trash Enclosures. Operator shall comply with City code provisions
pertaining to trash enclosures, and if directed by the Planning Director, shall
secure and maintain commercial bin service at the subject properties. Operator
shall provide a sufficient number of plastic trash cans with sealable covers to
contain all of the refuse generated by the facility, which are to be used at all
times. Trash cans shall be put out for pick up no earlier than 7:00 p.m. and
before 8:00 p.m. on the evening before trash collection day, and shall be put
back within the property by 6:00 p.m. on the day of collection.
7. Smoking and Tobacco Products. Per NBMC Section 20.91A.050(A), no
Clients, guests, or any other users of the subject property may smoke in an area
from which the secondhand smoke may be detected on any parcel other than the
parcel upon which the use is located. Operator shall make good faith best efforts
to contain secondhand smoke generated by patients, Clients, customers, and
staff within the lot line of the subject property. In addition, Operator will not allow
Clients, staff, or residents to litter cigarette butts on the ground, floor, deck,
sidewalk, gutter, boardwalk or street. Operator's administrators and managers
shall actively enforce, on the City's behalf, the City's prohibition tobacco use on
beaches, boardwalks, and piers (NBMC §11.08.080). This includes any
meetings Morningside's Clients participate in "off- site."
8. Parking. Operator shall keep garages and other parking spaces at its facilities
clear, unobstructed and available for parking for staff, and visiting family
members' vehicles, cleaning persons' vehicles, and client transport vans at all
times. Clients to the facility are not permitted to have personal vehicles at the
facility.
[1-09 -0011] Zoning Agreement - Morningside - Exhibit 1 10.09.02
11287- 000711204428v3.doc
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morninqside Recovery, LLC
9. Client Transport. Operator shall ensure that loading and unloading of
passengers of the facility's transportation van shall occur only in open parking
spaces or garage spaces. The van driver is prohibited from stopping or double -
parking in a traffic lane to load and unload passengers. In addition, client drivers
shall respect all City rules regarding parking and /or stopping and waiting to load
residents. Client transport vehicles shall not block adjacent alleys or street ends.
Client drivers shall not leave vehicles in reverse gear if reverse has an audible
back -up warning sound. Client drivers shall speak to residents at a level
protective of neighborhood peace, cognizant of the hour, to avoid waking
neighbors.
10. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City
upon the property owner and operator or other enforcement action authorized
under the Zoning Agreement.
11. Noise. Operator shall strictly adhere to the City's noise standards (NBMC
§10.26.025; 10.26.030). Operator shall be responsible for minimizing clapping,
stomping, or other noises at meetings or gatherings at the subject property,
consistent with NBMC §10.26.030.
12. Quiet Hours. Operator shall enforce the Quiet Hours of 9:00 p.m. to 8:00 a.m.
daily to its patients, Clients and customers occupying beds in its facility. Quiet
means noise, including music, television, and voices, is not audible beyond the
perimeter of the facility except in a demonstrable emergency.
13. Route Plans. Operator shall adhere to the Route Plans for transport of its staff,
residents, clients, and customers. The Route Plans for all Morningside facilities
are attached hereto as Exhibit 5. Short -term interruptions, such as medical
emergencies or street maintenance beyond Operator's control, are allowable
modifications to the Route Plans.
14. Deliveries. Staff members in their private vehicles may deliver business
products and other packages and goods to the facility during weekdays between
the hours of 9:00 a.m. to 5:00 p.m.
15. Hotline. Operator shall establish, provide public notice of, and operate a hotline
for receiving inquiries and /or complaints in reference to its operation of its facility.
The phone number need not be staffed 24 hours a day seven days a week, but
callers should be responded to within the next 24 -hour period. Alternatively, the
Operator shall provide area residents and the City with a contact name, phone
number, and e-mail address that is available 24 hours a day, seven days each
week. This contact shall be available to assist residents and the City with any
problems or concerns arising from the facility. E -mails or messages left for the
[L09 -0011] Zoning Agreement - Morningside - Exhibit 1 10.09.02
1 1287-0007\1 204428v3.doc
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
Operator's designated contact shall be returned promptly within a 24 -hour period
from receipt.
16. Stakeholder Group. Upon invitation by the City, Operator shall participate in the
activities of any stakeholder committee or group established by the City to
address complaints and concerns of residents of the City regarding the operation
of Residential Care Facilities in the City.
17. Persons per Bedroom. Operator shall not allow more than two clients in one
bedroom unless the size of the structure warrants a larger occupancy for any
single bedroom.
18. Building and Zoning. Operator recognizes that each of its facilities have
specific setbacks from the side yards, front yard, and /or back yards per the City's
Building and Zoning Codes. Operator will keep these setbacks clear of
obstruction, including building obstruction. The orderly storage of trashcans is
acceptable in setbacks.
19. Facility Nuisances. The subject properties shall not be unsafe, unsightly or
poorly maintained. If Operator receives notice of a nuisance violation from the
City in regards to any of these issues, Operator shall correct the violation within
seven calendar days.
20. Beaches and Other Common Gathering Areas. Operator's use of the
beaches for meetings, prayer, conversation, or other gatherings shall show due
respect to non - resident visitors, residents, and other beachgoers, thus allowing
them to take full enjoyment of the beach. Operator shall not conduct business on
the beach (per NBMC §10.08.030).
21. Services to Facility's Clients or Residents. Operator will use industry's best
practices to ensure that the facility's clients or residents stay in recovery
(including scheduled substance testing, random substance testing, and required
counseling).
22. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance of this use permit shall not constitute a waiver of
the requirements of any federal, state or local law, including the requirements of
the California Building Code.
23. Affidavit of Disability. The Operator shall execute an affidavit declaring that all
clients receiving services from this facility are disabled persons, as that term is
defined by federal and state fair housing laws.
[L09 -00111 Zoning Agreement — Morningside — Exhibit 1 10. 09.02
1 1287-0007\ 120442 8 v3.doc
EXHIBIT 2
Exhibit 2
Depiction and Description of "Peninsula Zone"
Depiction of Peninsula Zone:
The lands within the yellow boundary as shown below.
Description of Peninsula Zone:
Starting at the mouth of the Santa Ana River:
• The land area southerly of the Newport and Seminouk Sloughs known as Newport Shores, and
• The land coastward of Pacific Coast Highway to Newport Boulevard known as Balboa Coves, West
Newport Beach, Lido Sands, and Newport Island; and
• The land southerly of a line extending along the Federal Navigational Channel between Newport
Boulevard and the Newport Harbor Jetty, known as the Balboa Peninsula, Lido Peninsula, Lido Isle,
Bay Island, and Cannery Village; and
• Southward on Newport Boulevard about 50 feet to Lower Newport Bay; and
• All lands southerly of Lower Newport Bay between Newport Boulevard down the Federal Navigational
Channel within the Lower Bay, inclusive of Lido Isle and Bay Island and inclusive of the Balboa
Peninsula.
[L10-001 Ij 10.15.14 Momingside —Zoning Agreement Exhibit 2 (Peninsula Zone)
EXHIBIT 3
Exhibit 3
Morningside Recovery
Quarterly Compliance Review Report
Date Report Submitted:
This form covers the 3 -month period of
through
During the above period, Morningside Recovery managed or controlled the following facilities in
Newport Beach:
Note: In the above chart, "Clients" are subject to the same numerical restrictions as
"Client Beds" in the Zoning Agreement. In other words, if Morningside is authorized to
house six Clients in a particular facility, then it is limited to an equal number of Client
Beds in that facility.
The Morningside Staff Member to join the City in any inspection of the above facilities
shall be: (e -mail: ,phone #: )
By my signature below I certify and declare under the penalty of perjury under the laws
of the State of California, in my personal capacity and on behalf of Morningside
Recovery, LLC that Morningside Recovery
has met all Operational Conditions as
j1,09 -001I]-Zoning
Agreement — Morningside — Exh. 3 — Quarterly Compliance Report— 10 -08 -04
Morningside Recovery Facilities
Date of Report: September 30, 2010
Location
Peninsula
Zone?
Peninsula
Clients &
Client Beds
Off - Peninsula
Clients &
Client Beds
ASP
Licensed?
1. 4823 Riker Avenue - A
Y
6
N
2. 4823 Riker Avenue - B
Y
6
N
3. 100 Via Antibes
Y
4
N
4. 102 Via Antibes
Y
4
N
N
6
N
5. 208 Via Lida Soud
Y
4
N
6. 112 B 39th Street
Y
6
Y
7. 29 Ima Loa Court
Note: In the above chart, "Clients" are subject to the same numerical restrictions as
"Client Beds" in the Zoning Agreement. In other words, if Morningside is authorized to
house six Clients in a particular facility, then it is limited to an equal number of Client
Beds in that facility.
The Morningside Staff Member to join the City in any inspection of the above facilities
shall be: (e -mail: ,phone #: )
By my signature below I certify and declare under the penalty of perjury under the laws
of the State of California, in my personal capacity and on behalf of Morningside
Recovery, LLC that Morningside Recovery
has met all Operational Conditions as
j1,09 -001I]-Zoning
Agreement — Morningside — Exh. 3 — Quarterly Compliance Report— 10 -08 -04
N
6
N
Total:
30
6
Note: In the above chart, "Clients" are subject to the same numerical restrictions as
"Client Beds" in the Zoning Agreement. In other words, if Morningside is authorized to
house six Clients in a particular facility, then it is limited to an equal number of Client
Beds in that facility.
The Morningside Staff Member to join the City in any inspection of the above facilities
shall be: (e -mail: ,phone #: )
By my signature below I certify and declare under the penalty of perjury under the laws
of the State of California, in my personal capacity and on behalf of Morningside
Recovery, LLC that Morningside Recovery
has met all Operational Conditions as
j1,09 -001I]-Zoning
Agreement — Morningside — Exh. 3 — Quarterly Compliance Report— 10 -08 -04
Exhibit 3
Morningside Recovery
Quarterly Compliance Review Report
described in Exhibit 1 to the Zoning Agreement during the above Compliance Review
Period.
DATE
DATE
[Name], [Title]
MORNINGSIDE RECOVERY, LLC
z
[Name], [Title]
[L09-00I I]-Zoning Agreement — Morningside — Exh. 3 — Quarterly Compliance Report — 10 -08 -04
EXHIBIT 4
Exhibit 4
Inspection Protocol
The following protocol reflects the CITY's compliance review under Section N (Periodic Review
of Compliance) of the Zoning Agreement between Morningside Recovery and the City of
Newport Beach.
On or before March 31, June 30, September 30 and December 31 of each year,
Morningside shall submit to the City's code enforcement division ( "CED ") the Compliance
Review Report ( "Report") shown in Exhibit 3 to the Zoning Agreement. At the same time,
Morningside shall also submit the name, phone number, and e-mail of the Morningside staff
member that Morningside designates to join any inspection ( "Morningside Staff Member ").
2. On a quarterly basis, CED shall submit the list of Morningside facilities to the Police
Department for verification that no persons known to have been referred to Morningside by
the government (such as parolees) in violation of the Zoning Agreement live at any of the
facilities.
3. On a quarterly basis, CED shall select up to two (2) facilities on the list to verify the Client
count and Client Bed count through an onsite inspection during a weekday. CED and
Morningside shall endeavor to schedule this inspection at a time when Clients are present.
4. CED shall notify the Morningside Staff Member by e -mail and telephone of the time of the
inspection and which facilities will be inspected. Such notification will occur a reasonable
amount of time prior to the inspection, generally four (4) but not less than two (2) hours prior
to inspection.
5. While inspecting each facility, CED staff shall not obtain Client names nor take photos of
Clients and shall be respectful at all times of Client privacy. CED staff shall count Clients or
Client Beds and verify that the Client and Client Bed Count at each facility match those on
the report submitted by Morningside.
6. An inspection report shall be made for each facility.
7. All inspection reports shall be submitted to the Planning Department for inclusion in the
City's annual review of Morningside's compliance with the Zoning Agreement.
[L09 -0011[ 10 -16 -14 Morningside - Zoning Agreement Exhibit 4 (Inspection Protocol)
EXHIBIT 5
Exhibit 5
Client Transport Routes
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NOTES:
1 — Within the boundaries of the above chart, Morningside's Client Transport Routes are limited the following streets,
except during emergencies or if approved routes are closed:
• Balboa Boulevard
• Newport Boulevard
• Superior Ave
• 32nd Street
• 39th Street, Seashore between 39th and 38th, and 38th Street
• Ticonderoga
• River Avenue (only between 51 at Street and Balboa Boulevard — not the section of River Ave between 45th and 32nd
Street)
• Via Lido, Via Antibes, Via Lido Soud, Via Lido Nord
• Coast Highway
2 — The General Rule for Morningside's Client Transport vans shall be that Morningside shall use major thoroughfares
(Newport Boulevard and Balboa Boulevard) whenever possible, avoiding narrow neighborhood streets such as River
Avenue between 45th and 32nd Street).
4 — The City and Morningside shall work cooperatively to amend these routes whenever Morningside moves a facility.
[L 10 -0011] 10 -16 -04 Momingside — Zoning Agreement Exhibit 5 (Client Transport Routes) — 10 -08 -04
ATTACHMENT CC3
City Council Staff Report (9/14/10)
Morningside Recovery Development Agreement
June 3, 2010 Planning Commission staff report
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
June 3, 2010
Agenda Item No. 5
SUBJECT: Morningside Recovery Development Agreement - (PA2010 -069)
4823 A, 4823 B, 5015 A, 5015 B River Avenue, 112 39th Street, and 29
Ima Loa Court
• Development. Agreement No. DA2010 -001
APPLICANT: City of Newport Beach
PLANNER: Patrick J. Alford, Planning Manager
(949) 644 -3235, palford(a)newportbeachca.gov
PROJECT SUMMARY
The application consists of a development agreement between Morningside Recovery
and the City of Newport Beach that provides an entitlement for the operation of residential
care facilities in the City while also containing limitations on the total number of clients in
recovery for drug and alcohol abuse in the City, on occupancies at its cutrent facilities and
within the Peninsula Zone, and controls on the operation of these facilities.
1) Conduct a public hearing; and
2) Adopt R esolution No. _recommending approval of Development Agreement
DA2010 -001 to the City Council (Attachment No. PC 1).
aemg; de Recovery De mwm«lGee a,
June i99
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Morningside Recovery Development Agreement
June 3, 2010
Page 3
Project Settinq
The project site consists of four separate parcels:
• 4823 A and 4823 B River Avenue are located in a two -unit dwelling on a 3,420 -
square -foot lot. The zoning classification is Two - Family Residential (R -2) and the
General Plan land use designation is Two -Unit Residential (RT). The
surrounding land uses are Two -Unit Residential and Single -Unit Residential
(RS).
• 5015 A and 5015 B River Avenue are located in a two -unit dwelling on a 3,250 -
square -foot lot. The zoning classification is Two - Family Residential (R -2) and the
General Plan land use designation is Two -Unit Residential (RT). The
surrounding land uses are Two -Unit Residential and Single -Unit Residential
(RS).
• 112 39th Street is located in a two -unit dwelling on a 3,598- square -foot lot. The
zoning classification is Two - Family Residential (R -2) and the General Plan land
use designation is Two -Unit Residential (RI). The surrounding land uses are
Two -Unit Residential.
• 29 Ima Loa Court is a residential condominium in a 7 -unit building in the Newport
Crest Planned Community. The zoning classification is PC -14 and the General
Plan land use designation is Multiple Unit Residential (RM 460 DU). Surrounding
land uses are Multiple Unit residential (Newport Crest), Open Space/Residential
Village (Newport Banning Ranch property), and Parks and Recreation (Sunset
Ridge Park).
The dwelling at 112 39th Street is licensed by the State of California's Department of
Alcohol and Drug Programs (ADP) to house and provide treatment services to six
individuals in recovery from drug and /or alcohol abuse. The dwellings at 4823 A River
Avenue, 4823 B River Avenue, 5015 A River Avenue, 5015 B River Avenue, and 29 Ima
Loa Court each operate as non - licensed, non - treatment sober living facilities capable of
housing six individuals in recovery from drug and /or alcohol abuse.
Background
On January 22, 2008, the City Council adopted the Group Residential Uses Ordinance
(Ordinance No. 2008 -05) to protect the integrity of residentially -zoned areas of the City.
Group residential uses like boarding houses and fraternities /sororities have been
prohibited in all residential districts, and additional regulations were established for
residential uses that do not constitute a single housekeeping unit, but allow group home
Morningside Recovery Development Agreement
June 3, 2010
Page 4
living arrangements for the disabled, including sober living homes and alcohol and drug
recovery treatment homes licensed by the ADP. The key elements of Ordinance No.
2008 -05 are summarized in Attachment No. PC 2. For detailed background about
Ordinance No. 2008 -05, please see the City's website at
hftp://www.newportbeachea.govlindex.aspx?page=1 04,
On April 27, 2010, the City entered into a Settlement and Release Agreement
(Attachment PC 3) with Morningside Recovery which would allow the operation of its
residential care facilities with limitations on the total number of clients and controls on the
operation of these facilities.
DISCUSSION
The Development Agreement DA2010 -001 will serve as a "Zoning Implementation and
Public Benefit Agreement" (Zoning Agreement) and will be included as an attachment to
the Settlement and Release Agreement (Settlement Agreement) between the City and
Morningside Recovery. The Settlement Agreement itself is not under consideration by
the Planning Commission. Rather, the Planning Commission is tasked with making a
recommendation to the City Council as to the Zoning Agreement consistency with
Chapter 15.45 (Development Agreements) of the City of Newport Beach Municipal
Code and the General Plan.
The Zoning Agreement (DA2010 -001)
The key elements of the Zoning Agreement are summarized as follows:
Occupancy Levels
Morningside Recovery operations would be subject to the following limits:
• No more than 36 clients citywide
• No more than six clients at each of its current facilities
• No more than 30 clients within the Peninsula Zone (See Exhibit 2 of Attachment
PC 3)
• No more than six clients outside of the Peninsula Zone
Morningside Recovery may move clients from its current facilities to other properties,
but must maintain the 30- client cap in the Peninsula Zone and 36- client cap citywide.
Morningside Recovery Development Agreement
June 3, 2010
Page 5
Location Requirements
Existing and new Morningside Recovery facilities will have to comply with the following
dispersal and distancing requirements:
• Only one facility permitted in each block (as "block' is defined in the Agreement)
• No facilities may face each other across a street.
• No facility may be located within 1000 feet of elementary schools or large,
licensed day care facilities.
Other Operation! Conditions
• Staffing — At least one qualified manager must be on -site or on -call at all times.
• No Probationers /Paroles — No services or housing may be provided to clients
referred by a governmental agency.
• Assembly Uses — Limited to residents and staff of the facility.
• Medical Waste — Must be disposed of in accordance with the Municipal Code and
other laws and best industry standards and practices.
• Trash — Operator must provide sufficient trash containers; Agreement establishes
requirements on when trash may be placed out for collection.
• Smoking — Secondhand smoke may not be detected off site. Operator shall use
best efforts to contain smoke and shall prohibit cigarette butt litter by clients.
• Parking — Parking spaces must remain available for staff and visitors; clients are
prohibited from having personal vehicles at the facility.
• Client Transport — Restricts the loading and unloading of passengers and
requires adherence to approved route plans.
• Nuisance Behavior — Operator must control noise and lewd behavior, lewd
speech, and profanity at the facilities; facilities may not be unsafe, unsightly, or
poorly maintained.
• Deliveries — Limited to weekdays between 9:00 am and 5:00 pm.
• Hotline —Must establish and maintain a 24 -hour inquiry/complaint hotline.
Morningside Recovery Development Agreement
June 3, 2010
Page 6
Stakeholder Group — Must participate in any stakeholder committee or group
established by the City.
Persons Per Room — Limited to three clients per bedroom.
• Compliance with Federal, State, and Local Laws.
These restrictions are consistent with Section 15.45.040 (Contents) of the Municipal
Code, which requires a development agreement to specify the permitted uses of the
property and the density or intensity of use. Section 15.45.040 also provides that a
development agreement may contain such other provisions as may be considered
necessary or proper by the City Council to further legitimate City interest or to protect
the public health, safety and welfare so long as such terms are not inconsistent with the
provisions of state law relating to development agreements, nor inconsistent with the
ordinances, policies, plans or resolutions of the City.
Public Benefits of the Zoning Agreement
Section III B of the Zoning Agreement lists the following significant public benefits:
1. Settlement and avoidance of litigation costs, including continued expenditure of
attorney's fees;
2. Preservation of the regulatory ordinance that was the subject matter of the
lawsuit;
3. Avoidance of potential federal administrative proceedings;
4. A reduction and limitation on the size of a residential care operation in Newport
Beach, including limitation on six -or -under licensed facilities;
5. Dispersal of licensed facilities and sober living homes to reduce the
concentration thereof in the City's residential districts;
6. The placement of operational controls on said facilities to reduce the perceived
negative impacts on the City's residential neighborhoods.
Term
Section 15.45.040 (Contents) of the Municipal Code requires the development
agreement to specify the duration of the agreement. The term of the Zoning Agreement
would commence on the effective date (30 days after adoption by the City Council) and
will expire 25 years thereafter.
Morningside Recovery Development Agreement
June 3, 2010
Page 7
General Plan Consistency
Land Use Policy LU 6.2.7 (Care Facilities) states
Regulate Day Care and Residential Care facilities to the maximum extent allowed by
federal and state law to minimize impacts on residential neighborhoods, and actively
pursue federal and state legislation that would give cities the ability to prohibit an over -
concentration of recovery homes or sober living homes in residential areas.
The operational conditions contained in the Zoning Agreement will minimize impacts to
residential neighborhoods. The occupancy level limits and dispersal requirements
contained in the Zoning 'Agreement will assist in reducing the over - concentration of
recovery homes and sober living homes in residential areas.
Environmental Review
Consideration and adoption of the Development Agreement has been determined to be
categorically exempt under the requirements of the California Environmental Quality Act
(CEQA) under Class 1 (Existing Facilities). This class of projects has been determined
not to have a significant effect on the environment and is exempt from the provisions of
CEQA. This activity is also covered by the general rule that CEQA applies only to
projects that have the potential for causing a significant effect on the environment
(Section 15061(b)(3) of the CEQA Guidelines). It can be seen with certainty that there is
no possibility that this activity will have a significant effect on the environment and it is
not subject to CEQA.
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to property owners and
occupants within 300 feet of the property and posted at the site a minimum of 10 days in
advance of this hearing consistent with the Municipal Code. Additionally, the item
appeared upon the agenda for this meeting, which was posted at City Hall and on the
City website. Furthermore, pursuant to Section 15.45.050 (Public Hearing — Notice) of
the Municipal Code, this meets the public notice requirements provided in Sections
65090 and 65091 of the California Government Code.
Morningside Recovery Development Agreement
June 3, 2010
Page 8
CONCLUSION
The Zoning Agreement is consistent with Chapter 15.45 of the Municipal Code and the
General Plan.
Prepared by:
Patrick J. Alrord, Planning Manager
ATTACHMENTS
Submitted by:
Davie' Director
PC 1 Draft Resolution
PC 2 Key Elements Ordinance 2008 -05
PC 3 Development Agreement (Zoning Implementation and Public Benefit Agreement)
PC 4 Residential Care Facilities: Licensed and Unlicensed
F.Wsers \PLNtShared\PAs\PA2010- 06912010 -06 -03 PC staff rpt.docx
Attachment No. PC 1
Draft Resolution
RESOLUTION NO. _
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL
ADOPTION OF DEVELOPMENT AGREEMENT 2010 -001
(ZONING IMPLEMENTATION AND PUBLIC BENEFIT
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND
MORNINGSIDE RECOVERY, LLC) (PA2010 -069)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. On April 27, 2010, the City of Newport Beach entered into a Settlement and Release
Agreement with Morningside Recovery, LLC, which would allow the operation of its
residential care facilities with limitations on the total number of clients and controls on the
operation and location of these facilities.
2. Development Agreement DA2010 -001 consists of a Zoning Implementation and Public
Benefit Agreement between the City of Newport Beach and Morningside Recovery, LLC.
3. The subject properties are:
• 4823 A and 4823 B River Avenue. The zoning classification is Two - Family
Residential (R -2) and the General Plan land use designation is Two -Unit
Residential (RT).
• 5015 A and 5015 B River Avenue. The zoning classification is Two - Family
Residential (R -2) and the General Plan land use designation is Two -Unit
Residential (RT).
• 112 39th Street. The zoning classification is Two - Family Residential (R -2) and the
General Plan land use designation is Two -Unit Residential (RT).
• 29 Ima Loa Court. The zoning classification is PC -14 and the General Plan land
use designation is Multiple Unit Residential (RM 460 DU).
4. A public hearing was held on June 3, 2010 in the City Hall Council Chambers, 3300
Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of
the meeting was given in accordance with the Newport Beach Municipal Code.
Evidence, both written and oral, was presented to, and considered by, the Planning
Commission at this meeting. Pursuant to Section 15.45.050 of the Municipal Code,
this meets the public notice requirements provided in Sections 65090 and 65091 of the
California Government Code.
Planning Commission Resolution No.
Paae 2 of 3
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
Consideration and adoption of the Development Agreement has been determined to be
categorically exempt under the requirements of the California Environmental Quality Act
(CEQA) under Class 1 (Existing Facilities). This class of projects has been determined not to
have a significant effect on the environment and is exempt from the provisions of CEQA. This
activity is also covered by the general rule that CEQA applies only to projects that have the
potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA
Guidelines). It can be seen with certainty that there is no possibility that this activity will have a
significant effect on the environment and it is not subject to CEQA.
SECTION 3. FINDINGS.
The Development Agreement is consistent with Chapter 15.45 of the Municipal Code
and California Government Code Section 65865.2. The Zoning Implementation and
Public Benefit Agreement specifies the permitted uses of the property the density or
intensity of use, and the duration of the Agreement. The occupancy level limits,
location requirements, and operational conditions contained in the Zoning Agreement
will protect the public health, safety and welfare.
2. The Development Agreement is consistent with the General Plan. The operational
conditions contained in the Zoning Implementation and Public Benefit Agreement will
minimize impacts to residential neighborhoods. The occupancy level limits and
dispersal requirements contained in the Zoning Agreement will assist in reducing the
over - concentration of recovery homes and sober living homes in residential areas.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Planning Commission of the City of Newport Beach hereby recommends that the
City Council adopt Development Agreement 2010 -001 (Zoning Implementation and
Public Benefit Agreement Between the City of Newport Beach and Momingside
Recovery, LLC)
PASSED, APPROVED AND ADOPTED THIS 3RD DAY OF JUNE, 2010.
AYES:
NOES:
ABSTAIN:
ABSENT:
Tmplt 04/14/10
Planning Commission Resolution No. _
Page 3 of 3
M
Robert Hawkins, Chairman
BY:
Charles Unsworth, Secretary
Tmpl1: 04/14/10
Attachment No. PC 2
Key Elements Ordinance 2008 -05
Key Elements of Group Residential Uses Ordinance
(Ordinance 2008 -05)
A. Reasonable Accommodation. The concept of reasonable accommodation is a process by
which a disabled person in need of housing, or provider of housing for the disabled, can request
an exception from an existing local law to allow that disabled person or persons to obtain or
retain housing. This process is fully described in Chapter 20.98 of the Newport Beach Municipal
Code (NBMC).
B. Integral Facilities & Integral Uses. Ordinance 2008 -05 defines "Integral Facilities" and
"Integral Uses." In addition to defining the terms, the Ordinance states that the City can
consider small (housing six or fewer clients) ADP - licensed treatment and recovery facilities that
operate integrally to be uses subject to a Use Permit and regulated similarly to small unlicensed
facilities or general (7 and over ") facilities. We defined "Integral Facility" and "Integral Uses" as
follows:
Integral Facility. Any combination of two or more Residential Care (Small Licensed,
Small Unlicensed, or General) facilities which may or may not be located on the same or
contiguous parcels of land, that are under the control and management of the same
owner, operator, management company, or licensee or any affiliate of any of them, and
are integrated components of one operation shall be referred to as Integral Facilities and
shall be considered one facility for purposes of applying federal, state, and local laws to
its operation. Examples of such Integral Facilities include, but are not limited to, the
provision of housing in one facility and recovery programming, treatment, meals, or any
other service or services to program participants in another facility or facilities or by
assigning staff or a consultant or consultants to provide services to the same program
participants in more than one licensed or unlicensed facility.
Integral Uses. Any two or more licensed or unlicensed residential care programs
commonly administered by the same owner, operator, management company, or
licensee, or any affiliate of any of them, in a manner in which participants of two or more
care programs participate simultaneously in any care or recovery activity or activities so
commonly administered. Any such Integral Use shall be considered one use for
purposes of applying federal, state, and local laws to its operation.
In early May, 2008, Judge James Selna of the US District Court blocked the City's enforcement
of the "integral facilities" definition within Ordinance 2008 -05 as it applies to ADP - licensed "6
and Unders ". Special Counsel Jim Markman of Richards, Watson, Gershon ( "RWG ") believes
that the Judge's stay applies to the City's "integral uses" concept, too.
C. Siting of New Facilities. Ordinance 2008 -05 allows various group residential uses in the
following zones as shown in Table 1.
Table f
This provision of the Ordinance was blacked via Judge Selna's actions of May 2008
The prohibitions of certain group residential uses in the R -1, R -1.5, and R -2 Districts apply to
new facilities. Many existing group residential facilities became "non- conforming" after
February 20, 2008. All non - conforming uses in residential zones then became subject to
abatement. However, to accommodate disabled housing uses, all non - conforming residential
care uses had the opportunity to apply for a Use Permit to remain in their current locations, so
long as the applications were submitted by May 22, 2008. Ordinance No. 2008 -05 also allowed
residential care facility uses to apply for a reasonable accommodation at any time. The
residential care facilities that have received Use Permits and reasonable accommodations to
continue in their current locations are listed in Section E.4, below.
D. Abatement. Ordinance No, 2008 -05 directed that any operator within one of the zones
shown in Table 1 where their operation is either prohibited or allowed with a Use Permit but who
did not apply for or obtain a Use Permit or secure Reasonable Accommodation in a timely
manner must have ceased this use no later than:
• February 20, 2009; or
• The date an operator's lease expired to use the property. (This was only applicable if
the lease was entered into prior to December 7, 2007); or
• The date that an operator's State license expires (ADP licenses are good for up to 24
months if not revoked or if uses are unchanged).
whichever of the above three criteria occurred sooner, An operator can ask a Hearing Officer
for an extension of the abatement period, subject to certain findings. The Hearing Officer's
extension decision can be appealed to the City Council.
E. The Use Permit Process. As noted in Table 1, existing non - conforming uses and new uses
in the Multi- Family Residential ("MFR") District had to apply for a Use Permit to remain in
operation or to start operation. The key provisions of this process follow:
1 — Timing. Any existing operator had to apply for a Use Permit by May 22, 2008.
Applications for new facilities in MFR Districts may be submitted at any time.
2 — Application. Applicants have been asked to provide information to ensure that any use
is operated in compliance with applicable laws, that the operator has a history of operating
facilities consistent with any applicable laws, and that the applicant operating under a Use
Permit will operate in a manner that minimizes adverse impact on facility residents,
neighbors, the community, or the character of the neighborhood and that the use conforms
with established industry standards for the well -being of the facility residents.
3 — Notice and Hearing. Following Council Policy F -26, the City Council designates
hearing officers to approve, conditionally approve, or disapprove group residential Use
Permits at noticed public hearings. Decisions of the hearing officers may be appealed to the
City Council. In 2008 and 2009, hearings were held on use permits and reasonable
accommodations for the following residential care facilities:
• Balboa Horizons (Use Permit granted for 11 beds, female)
• Newport Coast Recovery (Use Permit denied for 18 beds, male)
• Ocean Recovery (Use Permits granted for two separate facilities - 18 beds, male,
and 16 beds, female)
• Kramer Center (Applications for Use Permit and reasonable accommodation
withdrawn for 12 -bed facility; facility closed.)
• Yellowstone Women's First Step House (Use Permits and reasonable
accommodations for four facilities denied; currently in litigation)
• Pacific Shores Properties, LLC (Reasonable accommodation denied by Hearing
Officer; amended reasonable accommodation request granted with conditions by
City Council on appeal for 24 beds at one duplex building.)
• Balboa Recovery (Reasonable accommodation granted for two duplexes with 6
residents per duplex building; accommodation request denied for third duplex
with 10 residents per duplex building. Applicant has requested reconsideration of
the reasonable accommodation request at the third building for 6 residents in the
duplex building, hearing pending.)
• LMS Properties (Reasonable accommodation granted for 4 residents in one unit
of a duplex building.)
4 — Revocation of the Use Permit. The Ordinance provides that the Hearing Officer can
revoke a UP (similar to other uses subject to a UP) if these findings are made:
• The permit was issued under erroneous information or misrepresentation; or
• The applicant made a false or misleading statement of material fact, or omitted a
material fact; or
• The conditions of use or other regulations or laws have been violated; or
• There has been a discontinuance of use for 180 days or more.
Attachment No. PC 3
Development Agreement (Zoning
Implementation and Public Benefit
Agreement)
SETTLEMENT AGREEMENT AND RELEASE
1. Introduction
This Settlement and Release Agreement ( "AGREEMENT ") is made and entered
� into as of this2zEhiday of April , 2010 by and between the CITY OF NEWPORT
(�j BEACH (the "CITY") on one hand, and MORNINGSIDE RECOVERY, LLC,
( "MORNINGSIDE ") on the other. The CITY and MORNINGSIDE are collectively
referred to as the "PARTIES."
2. Definitions
For the purposes of this AGREEMENT only, the following capitalized terms shall
have the following meanings:
2.1 "ACTION" or "ACTIONS" shall refer to all claims, charges, liabilities,
damages, obligations, costs, expenses, rights of action and causes of action, whether
known or unknown, between MORNINGSIDE RECOVERY and the CITY, including
but not limited to the lawsuits captioned Newport .Beach a Morningside Recovery, LLC,
et aL, (OCSC No. 07CC 11694), and Concerned Citizens ofNewport Beach a City of
Newport Beach, et aL, (USDC Case No. CV 08 -00192 dVS (RNBx)).
2.2 The "CITY" shall mean the City of Newport Beach, and its City Council,
Boards and Commissions, elected and appointed Officers, Agents, Employees and
Attorneys.
. 2.3. "CONTROL," "CONTROLLING ", "CONTROLLED BY," and "UNDER
COMMON CONTROL WITH" as used in this AGREEMENT shall mean the possession,
direct or indirect, or the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by contract or
otherwise.
2.4 "EFFECTIVE DATE" shall mean the date upon which the PARTIES incur
the rights and obligations of this AGREEMENT, as defined in.Paragraph 4, below.
2.5 "MORNINGSIDE" shall refer to the business known as Morningside
Recovery LLC, and its Directors, Trustees, Beneficiaries, Officers, Agents, Employees,
Successors, Heirs, Lessees, Assigns and Attorneys.
2.6 The "ORDINANCE" shall refer to Newport Beach Municipal Ordinance .
No. 2008 -5.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
11287 -00070 2009550.do c
3. Recitals
3.1 WHEREAS the City of Newport Beach is a municipal corporation and
Charter City under the laws of the State of California. On January 8, 2008, the City
Council of the City of Newport Beach conducted a public hearing on a proposed
ordinance modifying the City's municipal code provisions regulating group residential
uses in the City and, thereafter, conducted the first reading of the ORDINANCE.
3.2 WHEREAS, on January 22, 2008, the Newport Beach City Council passed
the ORDINANCE, which, among other things, included provisions requiring then current
operators of certain residential care facilities (as defined in the ORDINANCE) in R -1, R-
1.5, R -2 and MFR Zones to obtain use permits to continue those operations at their pre-
existing locations or to seek alternate forms of relief provided in the ORDINANCE or to
abate those operations within defined time periods.
3.3 WHEREAS MORNINGSIDE is a limited liability company whose
principal place of business is the City of Newport Beach, California. MORNINGSIDE
CONTROLS and operates a facility licensed by the California Department of Alcohol
and Drug Programs capable of housing six individuals in recovery for drug and/or
alcohol abuse located at 112 3911 Street in Newport Beach. MORNINGSIDE
CONTROLS and operates non - licensed, non - treatment facilities capable of housing six
individuals in recovery for drug and/or alcohol abuse at 4823 A River Avenue, 4823 B
River Avenue, 5015 A River Avenue, and 5015 B River Avenue in the City of Newport
Beach.
3.4 WHEREAS at the time of the passage of the ORDINANCE,
MORNINSGIDE operated and CONTROLLED, and presently operates and CONTROLS
drug and/or alcohol recovery facilities in R -2 Zones, but failed to file with the CITY an
application for a Use Permit pursuant to the ORDINANCE to continue it operations in
Newport Beach.
3.5 WHEREAS on March 17, 2008, the City of Newport Beach filed its first
amended complaint in the lawsuit in the Orange County Superior Court captioned
Newport Beach a Morningside Recovery, LL C, et aL, (OCSC No. 07CC 11694), seeking
to enforce moratorium ordinances enacted while it was developing the ORDINANCE
against MORNINGSIDE.
3.6 WHEREAS on January 22, 2008, a group of Newport Beach residents filed
a lawsuit captioned Concerned Citizens of Newport Beach v. City of Newport Beach, et
aL, (USDC Case No. CV 08 -00192 JVS (RNBx)), against the operators of sober living
homes in Newport Beach and the CITY.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
2
11287- 0007V1200955vldo -
3.7 WHEREAS on February 22, 2008, the CITY filed a cross -claim against
MORNINGSIDE and all the sober living homes named in the lawsuit. The CITY's
cross -claim asserted, among other things, that the ORDINANCE does not, on its face,
violate State of California or federal fair housing laws. On November 2, 2009, the Court
granted the CITY leave to amend its cross -claim to include a claim for injunctive relief;
and to add Barry Saywitz Properties — One LP, as a party.
3.8 WHEREAS MORNINGSIDE has not filed, and does not intend to file, any
complaints regarding the CITY or the ORDINANCE with either the United States
Department of Justice ( "DOJ ") or Department of Housing and Urban Development
("HUD').
3.9 WHEREAS MORNINGSIDE and the CITY have engaged in a court -
ordered settlement conference before the Honorable Judge Robert N. Block, and desire to
enter into this AGREEMENT to finally, fully, comprehensively and conclusively settle
all ACTIONS between the PARTIES, and all underlying and related contentions and
allegations, by and through this AGREEMENT and through the passage of an ordinance
that would approve a Zoning Implementation and Public Benefit Agreement ("ZONING
AGREEMENT ") substantially identical to that document attached hereto as Exhibit "A."
NOW, THEREFORE, in consideration of the above Recitals, covenants and
agreements therein, the PARTIES agree.as follows:
4. Effective Date of Agreement
4.1 This AGREEEMENT shall not become effective, and neither party shall
have any rights or obligations hereunder, until the EFFECTIVE DATE. The
EFFECTIVE DATE of this AGREEMENT is:
4.1.1. The thirty -first (31) day after the City Council's passage of the
ordinance approving the ZONING AGREEMENT, or
4.1:2 If a referendum or other elective challenge to the ordinance
approving this AGREEMENT qualifies to be placed on the ballot, then on the thirty -first
(3 1) day after the City Clerk certifies that the referendum or other elective challenge has
failed to pass, or
4.1.3 If litigation is instituted to challenge this AGREEMENT prior to the
EFFECTIVE DATE, then on the thirty -fast (3 1) day after the litigation is terminated
either by dismissal, or by judgment after it becomes final.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
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5. Release Concurrent With Effective Date
5.1 The CITY shall dismiss its cross -claim filed in the action captioned
Concerned Citizens of Newport Beach v. City of Newport Beach, et aL, (Case No. CV
08 -00192 JVS (RNBx)), against MORNINGSIDE and supply a Stipulation for Dismissal
(with prejudice) to MORNINGSIDE within three (3) business days of the EFFECTIVE
DATE of this AGREEMENT. The CITY hereby authorizes counsel for
MORNINGSIDE to file the Dismissal with the Court, and counsel for MORNINGSIDE
agrees to file the Stipulation for Dismissal with the Court within seven (7) business days
of the EFFECTIVE DATE of this AGREEMENT.
5.2 In consideration for that dismissal, MORNINGSIDE hereby knowingly and
intelligently waives and relinquishes any right to challenge the facial legality or facial
validity of the ORDINANCE in any court or administrative proceeding and hereby agrees
that, on its face, the ORDINANCE does not violate any state or federal housing laws and
is not discriminatory.
5.3 This release shall be a fully binding and complete settlement of all
ACTIONS between the CITY, MORNINGSIDE, and their Counsel and respective
assigns and successors save only the executory provisions of this AGREEMENT.
5.4 The PARTIES understand that the approval of the ZONING
AGREEMENT is subject to the following:
5.4.1 Conduct of public hearings required by law and the open and
unbiased application of the CITY's police powers to its Planning Commission and City
Council's consideration of that approval.
5.4.2 Referendum power of the City's electorate.
5.4.3 Legal challenge by any interested party.
5.5 Nothing in this AGREEMENT is intended to or shall have the lawful effect
of contracting away the CITY's zoning authority or any other aspect of the CITY's police
power. City Staff and the City Council have previously reviewed the terms and
conditions of the ZONING AGREEMENT, and have concluded that pursuant to
California law and the Newport Beach Municipal Code, City Staff may lawfully present
the ZONING. AGREEMENT to the City's Planning Commission and City Council for
approval or disapproval, subject to duly noticed public hearings. City Staff has further
preliminarily concluded that no CEQA analysis shall be required to be completed prior to
the CITY considering approval of the ZONING AGREEMENT.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
4
11287- W0741200955v1doc
5.5.1 The CITY shall schedule public hearings on the ordinance that, if
adopted, would approve the ZONING AGREEMENT. If the City Council fails to
approve the ordinance within thirty (30) days following the conclusion of the public
hearings thereon, this AGREEMENT shall be of no further force or effect.
5.5.2 At the CITY's sole and absolute discretion, the CITY shall timely
file a Notice of Determination, Notice of Exemption, or other appropriate CEQA notice if
the ordinance approving the ZONING AGREEMENT is passed, and shall pay the cost of
any environmental assessment, negative declaration or environmental impact report that
is determined to be required..
5.6 The PARTIES stipulate that the Court retain jurisdiction over the PARTIES
to enforce the settlement until performance in full of the terms of the settlement.
5.7 Except as expressly excluded herein, the CITY and MORNINGSIDE waive
all rights or benefits that they may have under California Civil Code section 1542, with
regard to this AGREEMENT. Civil Code section 1542 provides:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of executing
the release, which if known by him or her must have materially
affected his or her settlement with the debtor."
6. Actions Pending Effectiveness of this Agreement
6.1 The PARTIES agree that prior to the EFFECTIVE DATE of this
AGREEMENT, the PARTIES shall jointly seek to maintain a stay of the litigation
pending in federal court captioned Concerned Citizens of Newport Beach a City
of Newport Beach, et at, (Case No. CV 08 -00192 JVS (RNBx)). During this
same period of time:
6.1.1 The CITY shall not enforce any provision of the
ORDINANCE against MORNINGSIDE.
6.1.2 MORNINSIDE agrees to abide by the Operational Conditions
attached as Exhibit "1" to the ZONING AGREEMENT.
7. Ownership of Released Claims
7.1 The CITY and MORNINGSIDE represent and warrant that none of the
matters or rights released herein has been assigned or transferred, in whole or in part, to
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
5
11287.00071I2009550.doc
any person, organization, partnership or any other entity, nor has any person,
organization, partnership or any other entity become subrogated to such rights.
8. All Parties to Bear Own Costs
8.1 The CITY and MORNINGSIDE agree to bear their own attorneys" fees and
costs incurred in connection with this ACTION.
9. Entire Agreement
9.1 This AGREEMENT contains the entire understanding and agreement
between the CITY and MORNINGSIDE with respect to the rnatters referred to herein.
No other representations, covenants, undertakings or other prior or contemporaneous
agreements, oral or written, respecting those matters, which are not specifically
incorporated herein, may be deemed in any way to exist or to bind any of the PARTIES.
9.2 The CITY and MORNINGSIDE acknowledge that they have not executed
this AGREEMENT in reliance on any such promise, representation or warranty. This
AGREEMENT may not be modified except by a written instrument signed by authorized
representatives of the CITY and MORNINGSIDE.
10. Warranties and Iudemnifecation for Successors in Interest
10.1 This AGREEMENT contains the entire agreement between the CITY and
MORNINGSIDE with regard to the matters set forth herein and shall be binding upon
and inure to the benefit of the executors, administrators, personal representatives, heirs,
successors and assigns of each.
10.2 Without limiting the foregoing, the PARTIES hereby represent and warrant
that the releases herein are expressly made on behalf of all council, boards and
commissions, elected and appointed officers, agents, and employees of CITY, as well as
all owners, partners, agents, employees and affiliates of MORNINGSIDE, and their heirs,
assigns and successors in interest, as well as any affected property owners, their spouses,
children, or any other family member, descendant, heir or assign of MORNINGSIDE.
SETTLEMENT AGREEMENT BY AND BETWEEN .
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
6
11289 -000'A1200955v1doc
11. Local California Law to Apply
11.1 This AGREEMENT shall be deemed to have been executed and delivered
within the State of California and the rights and obligations of the CITY and
MORNINGSIDE hereunder shall be construed and enforced in accordance with, and
governed by the local law of the State of California.
12. Construction and Waiver of Benefits of Doctrine of Contra Proferentum
12.1 The CITY and MORNINGSIDE have jointly drafted this AGREEMENT.
Hence, the CITY and MORNINGSIDE agree that the terms of this AGREEMENT, or
any of them, shall not be interpreted against or in favor of any party on the ground that
any party participated in the drafting of this AGREEMENT. The CITY and
MORNINGSIDE accordingly expressly and specifically waive the right to benefit from
application of the doctrine of contra proferentum in any subsequent dispute concerning
interpretation of the provisions of this AGREEMENT.
13. Headings
13.1 The various headings of the sections and paragraphs of this AGREEMENT
have been inserted for convenience of reference only and do not affect the meaning or
interpretation of this AGREEMENT or any provision of it.
14. Signatories Authority
14.1 Each and every one of the persons executing this AGREEMENT expressly
warrants that he or she is authorized to do so on behalf of the entity for which he or she is
executing this agreement. The CITY and MORNINGSIDE represent and warrant that
this agreement is executed voluntarily, with full knowledge of its significance.
15. No Admission of Liability
15.1 The CITY and MORNINGSIDE have entered into this AGREEMENT
solely to compromise and settle disputed claims. The signatories do not admit, concede
or otherwise acknowledge liability in this matter. The PARTIES hereto expressly deny
and disclaim any liability or that either has engaged in any wrongful conduct whatsoever.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
11287- 0007.U200955v3.doc
16. Waiver of Breach
16.1 No waiver of any breach of any term or provision of this AGREEMENT
shall be construed to be, or shall be, a waiver of any other breach of this AGREEMENT.
No waiver is binding unless in writing and signed by the party or PARTIES waiving the
breach.
17. Further Documents and Ongoing Duty of Cooperation
17.1 The CITY and MORNINGSIDE and their Attorneys will cooperate in
executing and delivering all documents necessary to effectuate the agreements set forth
herein.
17.2 MORNINGSIDE shall not oppose the CITY's approval of the ZONING
AGREEMENT and shall support, both verbally and in writing, if requested by the CITY,
the approval of the ZONING AGREEMENT.
17.3 MORNINGSIDE shall not file any lawsuits, administrative appeals
pursuant to the CITY's municipal code, or take any other action whatsoever, in whatever
shape or form, to challenge, appeal, or otherwise seek to influence, in any respect,
approval of the ZONING AGREEMENT, with the sole exception of the activity
described in the preceding paragraph (17.2). '
18. Execution and Counterparts
18.1 This AGREEMENT may be executed in multiple counterparts, each of
which shall be deemed an original AGREEMENT, and all of which shall constitute one
AGREEMENT. These counterparts may be transmitted by facsimile with the originals to
be thereafter provided by the PARTIES. Such facsimiles shall be deemed original
signatures.
19. Confidentiality
19.1 All PARTIES agree that neither they nor their representatives shall disclose
the terms of this Agreement to any individual or entity not a Party hereto. This
Agreement may be disclosed only if such disclosure is required: (i) in response to an
order of a court of competent jurisdiction; (ii) in response to an inquiry or order issued by
a state or federal agency of competent jurisdiction; (iii) to comply with any reporting
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
8
11287- 0007\12009550.40c
obligation of any federal or state law and agency, including without limitation the
Internal Revenue Service or the State Franchise Tax Board; (iv) in response to a request
from the PARTIES' insurers or prospective insurers; (v) in connection with any future
litigation between the PARTIES hereto; (vi) to the PARTIES legal, tax, and financial
advisors; (vii) in order to account to the PARTIES shareholders, partners, or investors; or
(viii) in response to a Public Records Act request made pursuant to section 6253 of the
Government Code.
20. Invalid Clause May Be Severed
20.1 If any provision, clause, or part of the AGREEMENT is adjudged illegal,
invalid or unenforceable, the balance of this AGREEMENT shall remain in full force and
effect.
CROSS - CLAIMANT•
By:
KEITH D. CURRY
The CITY OF NEWPORT BEACH
MAYOR, CITY OF NEWPORT BEACH
Date:
AS TO FORM AND CONTENT
4—I h A A
By:'
PAT K. BO KO
RICITARDS, WATSON & GERSHON Attorneys for CROSS - CLAIMANT
Date: MAP0.10
[MORE SIGNATURES FOLLOW]
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
9
11287- 0007112009550.doc
ORIGIN .
MORNINGSIDE RECOVERY, LLC
Title: CHIEF EXECUTIVE OFFICER
Date:
APPROVED AS TO FORM AND CONTENT
By:
MARY HELEN BEATIFICATO
BEATIFICATO & ASSOCIATES, Attomeys for CROSS - DEFENDANT
Date:
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
10
11287 -00MI200955v1doc
ORIGINAL.
CAN AC BRUC
MO INGSIDE RECOVERY, LLC
Title: CHIEF EXECUTIVE OFFICER
Date:
AFPR VEDAS T
By:
MARY HELEN
BEATIFICATIP &
Date:
Date: �c3i
Attorneys for CROSS- DEFENDANT
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
Ia
11267 -0007U 2009550.doc
ORIGINAL,
(EXHIBIT "A ")
ZONING IMPLEMENTATION
AND PUBLIC BENEFIT AGREEMENT
(Pursuant to California Government Code §§ 65864- 65869.5)
This Zoning Implementation and Public Benefit Agreement (the "ZONING
AGREEMENT") is entered into on , 2010, by and between the
CITY OF NEWPORT BEACH, a charter city ( "CITY") on the one hand, and
MORNINGSIDE RECOVERY, LLC, ( "MORNINGSIDE") on the other. The
CITY and MORNINGSIDE are collectively referred to as the "PARTIES."
I.
Recitals
A. The City Council hereby finds this ZONING AGREEMENT is
consistent with the provisions of California Government Code §65867, the City of
Newport Beach Municipal Code Chapter 15.45, and the City's General Plan.
B. On 2010, the City's Planning Commission held a
public hearing on this ZONING AGREEMENT, made findings and
determinations with respect to this ZONING AGREEMENT, and recommended to
the City Council that the City Council approve this ZONING AGREEMENT.
C. On , 2010, the City Council also held a public hearing
on this ZONING AGREEMENT and considered the Planning Commission's
recommendations and testimony and information submitted by City staff,
MORNINGSIDE, and members of the public. On , 2010, pursuant to
applicable state law (California Government Code §§ 65864- 65869.5) and local
law (City of Newport Beach Municipal Code Chapter 15.45), the City Council
passed its Ordinance No. finding this ZONING AGREEMENT to be
consistent with the City of Newport Beach General Plan and approving this
ZONING AGREEMENT.
IL
Definitions
The following terms when used in this ZONING AGREEMENT shall have
the meanings set forth below:
A. "BLOCK" shall mean an area that is bounded on all sides by streets.
In the Peninsula Zone, a BLOCK length is 617 feet, which is the calculable
median block length within the City of Newport Beach's Nonstandard Subdivision
Areas.
B. "CITY" shall mean the City of Newport Beach and its City Council.
C. "CLIENT" (or "CLIENTS ") shall mean any persons residing at any
MORNINGSIDE FACILITY for the purpose of recovering from drug and/or
alcohol abuse.
D. "CONTROL" (including the terms "controlling," "controlled by,"
and "under common control with, ") shall mean the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract, or
otherwise.
E. "FACILITY" (or "FACILITIES ") is a residential unit used or
occupied by persons in recovery from alcoholism and/or drug abuse. Facilities
may be "licensed facilities" or unlicensed "sober living homes." As used in this
AGREEMENT, all facilities constitute "residential care facility" uses within the
context of the City's zoning ordinance.
D. "GENERAL PLAN" shall mean the 2006 General Plan adopted by
the City Council on July 25, 2006, by Resolution No. 2006 -76. The Land Use
Plan of the Land Use Element of the General Plan was approved by Newport
Beach voters in a general election on November 7, 2006.
E. "LICENSED FACILITIES" shall mean alcoholism and drug abuse
recovery facilities licensed by the California Department of Alcohol and Drug
Programs ("ADP ").
F. "PARTY" or "PARTIES" shall mean either the CITY or
MORNINGSIDE or any of MORNINGSIDE's affiliates or both, as determined by
the context.
G. "PROPERTY" or "PROPERTIES" shall mean MORNINGSIDE's
facilities at 112 39`s Street, 4823 A River Avenue, 4823 B River Avenue, 5015 A
River Avenue, 5015 B River Avenue, and 29 Ima Loa Court in Newport Beach.
Additionally, this AGREEMENT may apply to parcels not yet identified upon
which MORNINGSIDE may operate facilities pursuant to this AGREEMENT in
the future.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
H. "SOBER LIVING HOMES" shall mean alcoholism and/or drug
abuse recovery facilities that are not licensed by the ADP.
L "7- and - OVER" shah mean any FACILITY licensed by the ADP to
house more than 7 persons in recovery for drug and/or alcohol abuse.
III.
Agreement
A. Terms of Agreement.
This ZONING AGREEMENT allows MORNINGSIDE a vested right to
the following:
1.) MORNINGSIDE may operate FACILITIES housing up to thirty -
six (36) CLIENTS in Newport Beach pursuant to certain
operational guidelines described more particularly in Exhibit "1"
attached hereto. Except as described in Section A (3), below,
MORNINGSIDE may not exceed 36 CLIENTS in Newport
Beach.
2.) MORNINGSIDE may house up to 30 of its 36 total CLIENTS in
the Newport Beach "Peninsula Zone." The Peninsula Zone is
more particularly defined in Exhibit 112" attached hereto;
3.) MORNINGSIDE can exceed its 36 CLIENT maximum only by
acquiring 7- and -OVER FACILITIES that have obtained use
permits under Chapter 20.91 A of the Newport Beach Municipal
Code.
4.) MORNINGSIDE shall conduct its OPERATIONS in Newport
Beach in conformance with the Operational Guidelines attached
hereto as Exhibit "I."
5.) MORNINGSIDE will comply with the following dispersal and
distancing requirements for its FACILITIES in Newport Beach:
a. Only one (1) treatment home or sober living facility (licensed
or unlicensed by ADP) is allowed per BLOCK, and no
FACILITIES facing each other;
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 3
b. No FACILITIES (licensed or unlicensed by ADP) within
1000 feet of elementary schools or large, licensed day -care
facilities.
B. Significant Public Benefits. The significant public benefits that this
ZONING AGREEMENT provides include, but are not limited to, the following:
1.) Settlement and avoidance of litigation costs, including the
continued expenditure of attorneys' fees;
2.) Preservation of the regulatory ordinance that was the subject
matter of this lawsuit;
3.) Avoidance of potential federal administrative proceedings;
4.) A reduction and limitation on the size of a residential care
operation in Newport Beach, including a limitation on
LICENSED FACILITIES;
5.) Dispersal of LICENSED FACILITIES and SOBER LIVING
HOMES to reduce the concentration thereof in the City's
residential districts;
6.) The placement of operational controls on said FACILITIES to
reduce the perceived negative impacts on the City's residential
neighborhoods;
C. General Plan Consistency and Zoning Implementation. This
ZONING AGREEMENT and the regulations applied herein to MORNINGSIDE
will cause the City of Newport Beach's zoning and other land use regulations to
remain consistent with the GENERAL PLAN.
D. Warranties and Representations. Both PARTIES represent they
have legal authority to enter into this ZONING AGREEMENT and the remainder
of the agreements and documents that comprise the settlement documents herein,
and that the necessary authorizations have been obtained, by resolution or other
action, and that the persons whose names appear as signatories below were
authorized to accept this ZONING AGREEMENT on behalf of the PARTY under
whose name they signed.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 4
1.) Each PARTY specifically represents and warrants that it has the
legal authority to enter into a ZONING AGREEMENT of the
type and kind herein, and,
2.) The City of Newport Beach represents and warrants that this
ZONING AGREEMENT and the regulations applied to
PROPERTY are:
a. Consistent with the GENERAL PLAN for the City of
Newport Beach and any Specific Plans that apply to the area
in which any portion of MORNINGSIDE's PROPERTIES
are located, and;
b. Consistent with the Local Coastal Land Use Plan ( "CLUP ")
for the City of Newport Beach and that the CLUP has been
approved by the California Coastal Commission.
E. Operation of Property; Aanlicable Regulations. Other than as
expressly set forth in this ZONING AGREEMENT, during the term of this
ZONING AGREEMENT, the terms and conditions concerning the operation of
the PROPERTIES, including but not limited to the permitted uses, density,
intensity of use, and the location of buildings involved, shall be those set forth in
the City of Newport Beach's ordinances and regulations, and the City of Newport
Beach shall not prevent operation of the PROPERTIES in compliance with the
applicable regulations and all other applicable laws and regulations in Section I,
below.
F. Vested Rights. During the term of this ZONING AGREEMENT,
except to the extent the City of Newport Beach reserves its discretion as expressly
set forth in this ZONING AGREEMENT or in the applicable regulations and all
other applicable laws and regulations specified in Section 1, MORNINGSIDE
shall have the vested right, within the limits and constraints of the applicable
regulations, to conduct OPERATIONS of LICENSED FACILITIES and SOBER
LIVING HOMES at its PROPERTIES. In the event Ordinance 2008 -5 is repealed
by action of the City Council of the City of Newport Beach or the electorate, or if
a court of competent jurisdiction declares the Ordinance invalid or unenforceable,
this AGREEMENT shall remain in full force and effect.
G. Police Power. In all respects not provided for in this ZONING
AGREEMENT, the City of Newport Beach shall retain full rights to exercise its
police power to regulate the operation of residential care facilities on the
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
PROPERTIES provided such powers are applied consistently with the provisions
of state law and the terms of this AGREEMENT.
H. No Conflicting Enactments. During the term of this ZONING
AGREEMENT the City of Newport Beach shall not apply to the PROPERTIES
any City- adopted ordinance, policy, rule, regulation, or other measure relating to
OPERATION of the FACILITIES to the extent it conflicts with this ZONING
AGREEMENT.
I. Reservations of Authority. Notwithstanding any provisions set forth
in this ZONING AGREEMENT to the contrary, the laws, rules, regulations, and
official policies set forth herein shall apply to and govern OPERATIONS at the
PROPERTIES:
l.) Procedural Regulations. Then current procedural regulations
relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the PROPERTY,
provided that they are adopted and applied Citywide.
2.) Consistent City Regulations. Newport Beach City ordinances,
resolutions, regulations, and official policies governing
development and building that do not conflict with the
AGREEMENT, or where MORNINGSIDE has consented in
writing to the regulations, shall apply to the PROPERTIES.
3.) Public Health and Safety. Any Newport Beach City ordinance,
regulation, rule, program, or official policy of general application
that is necessary to protect persons on the PROPERTIES or in
the immediate community from conditions dangerous to their
health or safety, shall apply to the PROPERTIES. The City of
Newport Beach may unilaterally enact any ordinance, regulation,
rule, program, or official policy of general application necessary
to protect persons from conditions dangerous to their health of
safety.
J. No Agency. Neither PARTY is acting as the agent of the other in
any respect. Each PARTY is an independent contracting entity with respect to the
terms, covenants, and conditions contained in this ZONING AGREEMENT. This
ZONING AGREEMENT forms no partnership, joint venture, or other association
of any kind. The only relationship between the PARTIES is that of a government
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 6
entity regulating the operation of private property by the owner or lessee of the
property.
K. Effective Date. This ZONING AGREEMENT shall not become
effective, and except as set forth in subsection (1) of this Section, neither PARTY
shall have any rights or obligations hereunder, until the "Effective Date."
1.) This ZONING AGREEMENT shall become effective on:
a. The 91" day following the City Council of the City of
Newport Beach's passage of the ordinance approving this
ZONING AGREEMENT, or
b. If a referendum or other elective challenge to the ordinance
approving this ZONING AGREEMENT qualifies for the
ballot, then on the 31s` day after the City Clerk of the City of
Newport Beach certifies that the referendum or other
elective challenge has failed to pass, or
C. If litigation is initiated to challenge this ZONING
AGREEMENT prior to the Effective Date established in
accordance with Section K (1) (a), and (b), above, then on
the 31" day after the litigation has terminated, or the time
for appeal has expired, and the legal challenge has been
unsuccessful.
2.) The term of this ZONING AGREEMENT shall commence on
the Effective Date and shall expire at the conclusion of the 2501
year thereafter. However in no event shall the term of this
ZONING AGREEMENT exceed thirty (30) years after its
execution.
3.) Stay of Ordinance 2008 -5 Pending Effective Date. Prior to the
effective date of the ordinance adopting this ZONING
AGREEMENT, or that date upon which it becomes clear that
there will be no Effective Date, whichever is later, the CITY
shall not otherwise enforce the provisions of Ordinance 2008 -5
against MORNINGSIDE or its AFFILIATES.
L. Amendment or Cancellation of the Zonine Aereement. Other than
modifications of this ZONING AGREEMENT under section I subsection (3) of
this ZONING AGREEMENT, this ZONING AGREEMENT may be amended or
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 7
cancelled in whole or in part only by mutual written and executed consent of the
PARTIES in compliance with California Government Code section 65868, and
City of Newport Beach Municipal Code section 15.45.070.
M. Enforcement. Unless amended or cancelled as provided in Section
L, above, or modified or suspended pursuant to California Government Code
section 65869.5, this ZONING AGREEMENT is enforceable by either PARTY
despite any change in any applicable GENERAL PLAN or Specific Plan, zoning,
subdivision, or building regulation, or other applicable ordinance or regulation
adopted by the City (including by the City's electorate,) that purports to apply to
any or all of the PROPERTIES.
N. Periodic Review of Compliance. CITY and MORNINGSIDE shall
each comply in good faith with the terms of this ZONING AGREEMENT. The
PARTIES shall review this ZONING AGREEMENT at least once every 12
months from the Effective Date for good faith compliance with its terms,
consistent with Government Code sections 65865 and 65865.1 and City of
Newport Beach Municipal Code section 15.45.080. At the reviews,
MORNINGSIDE shall document the current status of its OPERATIONS.
MORNINGSIDE also agrees to furnish evidence of good faith compliance with
this AGREEMENT as the CITY may require in the reasonable exercise of its
discretion, and after reasonable notice to MORNINGSIDE. On or before
December 31n and June 30th of each year during the term of this ZONING
AGREEMENT, MORNINGSIDE shall submit a Compliance Review Report,
whose template is attached hereto as Exhibit "3." The requirement of good faith
compliance shall be met upon the submittal to the CITY of an accurate
Compliance Review Report showing information relating to facility locations and
the number of CLIENTS at each MORNINGSIDE FACILITY. The CITY shall
have the right to audit the accuracy of the Compliance Review Report through the
on -site inspections of MORNINGSIDE's FACILITIES at mutually agreeable
times during regular business hours.
O. Events of Default.
1.) Default by Morningside. Pursuant to California Government
Code section 65865.1, if the CITY determines that
MORNINGSIDE has not complied in good faith with its
obligations pursuant to this ZONING AGREEMENT, the CITY
shall by written notice to MORNINGSIDE specify the manner in
which MORNINGSIDE has failed to comply and state the steps
MORNINGSIDE must take to bring itself into compliance. If
MORNINGSIDE does not commence compliance within thirty
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
(30) days after receipt of written notice from the CITY
specifying the manner in which MORNINGSIDE has failed to
comply and diligently pursue steps to achieve full compliance,
then MORNINGSIDE shall be deemed to be in default under the
terms of this ZONING AGREEMENT. The CITY may then
seek available remedies as provided in subsections (3) and (4),
below.
2.) Default by City. If the CITY has not complied with any of its
obligations and limitations under this ZONING AGREEMENT,
MORNINGSIDE shall by written notice to the CITY specify the
manner in which the CITY has failed to comply and state the
steps necessary for the CITY to bring itself into compliance. If
the CITY does not commence compliance within thirty (30) days
after receipt of the written notice from MORNINGSIDE
specifying the manner in which the CITY has failed to comply
and diligently pursue steps to achieve full compliance, then the
CITY shall be deemed to be in default under the terms of this
ZONING AGREEMENT. MORNINGSIDE may then seek a
specific performance or similar equitable remedy as provided in
subsection (3) of Section O, below.
3.) Specific Performance and Damages Remedies. The PARTIES
acknowledge that remedies at law are generally inadequate and
that specific performance is appropriate for the enforcement of
this ZONING AGREEMENT. The remedy of specific
performance or, in the alternative, a writ of mandate, shall be the
sole and exclusive remedy available to either PARTY in the
event of the default, or alleged default, by the other. Prior to
exercising such a remedy, the PARTY seeking to do so shall
submit the matter to non - binding arbitration through JAMS or
another mutually acceptable arbitrator.
4.) Recovery of Legal Expenses by Prevailing Party in Any Action.
In any-judicial proceeding between the PARTIES that seeks to
enforce the provisions of this ZONING AGREEMENT, the
prevailing party shall recover all of its actual and reasonable
costs and expenses. These costs and expenses shall include
expert witness fees, attorneys' fees, and costs of investigation
and preparation before the initiation of the action. The right to
recover these costs and expenses shall accrue upon initiation of
the action.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
P. Cooperation. Each PARTY covenants to take all reasonable actions
and execute all documents that may be necessary to achieve the purposes and
objectives of this ZONING AGREEMENT.
Q. Force Majeure. Neither PARTY shall be deemed to be in default
where failure or delay in performance of any of its obligations under this ZONING
AGREEMENT is caused, through no fault of the PARTY whose performance is
prevented or delayed, by floods, earthquakes, other acts of God, fires, war, riots or
other hostilities, strikes or other labor hostilities, state or federal regulations, or
court actions.
R. Third Party Legal Challenge. If a third party brings a legal action
challenging the validity or enforceability of any provision of this ZONING
AGREEMENT or the applicable regulations or the manner in which the ordinance
approving this ZONING AGREEMENT was processed and approved, including
the application of the California Environmental Quality Act ( "CEQA') to that
process, the PARTIES shall defend the third party challenge jointly, and each
parry shall be responsible for its legal expenses incurred in connection with the
challenge, except that either or both parties may seek recovery of all legal
expenses from the third party challenger.
S. Right to Assign. MORNINGSIDE shall have the right to transfer or
assign the rights and obligations contained herein in whole to any person,
partnership, joint venture, firm, or corporation at any time during the term of this
ZONING AGREEMENT without the consent of the CITY. Upon the effective
date of any such transfer or assignment, the transferor - assignor shall notify the
CITY of the name and address of the transferee. Any assignment of this ZONING
AGREEMENT must be pursuant to a sale or transfer of MORNINGSIDE's rights
in their entirety. Any sale or transfer of the PROPERTY shall include the
assignment and assumption of the rights, duties, and obligations arising from this
ZONING AGREEMENT to the transferee with respect to all of the
PROPERTIES. MORNINGSIDE shall no longer be obligated under this
ZONING AGREEMENT for the PROPERTY if MORNINGSIDE is not in default
under this ZONING AGREEMENT at the time of the sale or transfer.
T. Zoning Agreement Binding on Successors and Assigns. The
burdens of this ZONING AGREEMENT are binding upon, and the benefits of this
ZONING AGREEMENT shall inure to, all successors in interest of the parties to
this ZONING AGREEMENT.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 10
U. Estoppel Certificate. At any time, either PARTY may deliver
written notice to the other PARTY that the PARTY certify in writing that, to the
best of its knowledge:
1.) This ZONING AGREEMENT is in full force and effect and is
binding on the PARTY;
2.) This ZONING AGREEMENT has not been amended or
modified either orally or in writing. If this ZONING
AGREEMENT has been amended, the PARTY providing the
certification shall identify the amendments; and,
3.) The requesting PARTY is not in default in the performance of its
obligations under this ZONING AGREEMENT. If the
requesting PARTY is in default, the other PARTY must describe
the nature of the default.
The requesting PARTY shall execute and return the certificate within sixty
(60) days following receipt. Any assignee of a PARTY's rights and obligations
hereunder, as referred to in this Section, shall be entitled to rely on the certificate.
V. Further Actions and Instruments. Each PARTY shall cooperate with
and provide reasonable assistance to the other PARTY to the extent consistent
with and necessary to implement this ZONING AGREEMENT. Upon the request
of a PARTY at any time, the other PARTY shall promptly execute, with
acknowledgement or affidavit if reasonably required, and file or record the
required instruments and writings and take any actions as may be reasonably
necessary to implement this ZONING AGREEMENT or to evidence or
consummate the transactions contemplated by this ZONING AGREEMENT.
W. Notices. Any notice or demand that shall be required or permitted
by law or any provision of this ZONING AGREEMENT shall be in writing. If the
notice or demand will be served upon a PARTY, it shall be personally served to
the PARTY; deposited in the U.S. Mail, certified, return receipt requested, and
postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or
demand shall be addressed as follows:
To City: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Morningside Recovery, LLC Zoning Agreement
Exhibit " N' to Settlement Agreement
1193897 -7 11
Attn: City Manager
Fax: 949-644-3020
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
To Operator: Morningside Recovery, LLC
3404 A Via Lido
Newport Beach, California 92663
(949) 675 -0006
With a copy to: Mary Helen Beatificato
Beatificato & Associates, APC
28562 Oso Parkway, Ste. D -424
Rancho Santa Margarita, California
92688
Either PARTY may change the address stated in this Section by notice to
the other PARTY in the manner provided in this Section, and notices shall be
addressed and submitted to the new address. Notice shall be deemed to be
delivered upon the earlier of: (a) the date received; or (b) three business days after
deposit in the mail as provided above.
X. Rules of Construction and Miscellaneous Terms.
1.) Rules of Construction. The singular includes the plural; the
masculine and neuter include the feminine; "shall" is mandatory;
"may" is permissive.
2.) Time is of the essence. Time is of the essence regarding each
provision of this ZONING AGREEMENT in which time is an
element.
3.) Waiver. Failure by a PARTY to insist upon the strict
performance of any of the provisions of this ZONING
AGREEMENT by the other PARTY, and failure by a PARTY to
exercise its rights upon a default by the other PARTY, shall not
constitute a waiver of that PARTY's right to demand strict
compliance by the other PARTY in the future.
Morningside Recovery, LLC Zoning Agreement
Exhibit W' to Settlement Agreement
1193897 -7 12
5.) Counterparts. This ZONING AGREEMENT may be executed in
two or more counterparts, each of which shall be identical and
may be introduced in evidence or used for any other purpose
without any other counterpart, but all of which shall together
constitute one and the same ZONING AGREEMENT.
6.) Entire Agreement. Except for the Settlement Agreement, this
ZONING AGREEMENT constitutes the entire agreement and
supersedes all prior agreements and understandings, both written
and oral, between the PARTIES with respect to the subject
matter addressed in this ZONING AGREEMENT.
7.) Construction. This ZONING AGREEMENT has been drafted
after extensive negotiation and revision. Both the CITY and
MORNINGSIDE are sophisticated parties who were represented
by independent counsel throughout these negotiations. The
CITY and MORNINGSIDE each agree and acknowledge that the
terms of this ZONING AGREEMENT are fair and reasonable,
taking into account their respective purposes, terms, and
conditions. This ZONING AGREEMENT shall therefore be
construed as a whole consistent with its fair meaning, and no
principle or presumption of contract construction or
interpretation shall be used to construe the whole or any part of
this ZONING AGREEMENT in favor of, or against, either
PARTY.
8.) No Third Party Beneficiaries. The only parties to this ZONING
AGREEMENT are the CITY and MORNINGSIDE. This
ZONING AGREEMENT does not involve any third party
beneficiaries, and it is not intended and shall not be construed to
benefit or to be enforceable by any other person or entity.
9.) Applicable Law and Venue. This ZONING AGREEMENT shall
be construed and enforced consistent with the internal laws of the
State of California. Any action arising under this ZONING
AGREEMENT or brought by any PARTY for the purpose of
enforcing, construing, or determining the validity of any
provision of this ZONING AGREEMENT shall be filed and tried
in the Superior Court of the County of Orange, State of
California, or the United States District Court for the Central
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 13
District of California. The PARTIES waive all provisions of law
providing for the removal or change of venue to any other court.
10.) Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect construction or
interpretation of this ZONING AGREEMENT.
11.) Authority to Execute. The persons executing this ZONING
AGREEMENT warrant and represent that they have they have
the authority to execute this ZONING AGREEMENT on behalf
of the entity for which they are executing this ZONING
AGREEMENT. They further warrant and represent that they
have the authority to bind their respective PARTIES to the
performance of its obligations under the ZONING
AGREEMENT.
CITY:
CITY OF NEWPORT BEACH
By:
Keith D. Curry
Title: MAYOR of Newport Beach
MORNINGSIDE RECOVERY, LLC
By:
JEFFREY YATES
Title: President
MORNINGSIDE RECOVERY, LLC
By:
CANDACEBRUCE
Title: Chief Executive Officer
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 14
APPROVED AS TO FORM:
By:
Leonie H. Mulvihill
Title: ACTING CITY ATTORNEY
CITY OF NEWPORT BEACH
ATTEST:
By:
Leilani Brown
Title: CITY CLERK
CITY OF NEWPORT BEACH
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
I193897 -7 15
Exhibit "I" to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
EXHIBIT "1"
OPERATIONAL CONDITIONS
for
MORNINGSIDE RECOVERY, LLC
1. Occupancy Level. The operator of Morningside Recovery, LLC, hereinafter
referred to as "Operator," is limited to housing a total of thirty -six (36) clients in
recovery from drug and alcohol abuse in the City of Newport Beach, and shall
limit occupancy of its current facilities to the following:
a. 4823 A River Avenue — 6 client maximum
b. 4823 B River Avenue — 6 client maximum
c. 5015 A River Avenue — 6 client maximum
d. 5015 B River Avenue — 6 client maximum
e. 112 39 "' Street — 6 client maximum
f. 29 Ima Loa Court — 6 client maximum
The above occupancy levels reflect a maximum of thirty (30) clients in the
Peninsula Zone and a maximum of six (6) outside of the Peninsula Zone. The
boundaries of the Peninsula Zone are more particularly defined in Exhibit "2" of
the corresponding Zoning Agreement. Operator may move clients from the above
properties into other properties but must maintain the 30 client cap in the
Peninsula Zone and 36 total client cap citywide, provided that Operator maintain
the dispersion standards in Section III A, subsections 5 (a) & (b) of the Zoning
Agreement.
2. Staffing. Operator shall have enough staff to appropriately and responsibly
manage each facility; including at least one qualified manager on -site or on -call at
all times (24 hours a day, seven days each week).
3. Governmental Referrals. Operator shall not provide any services to any client or
house any client who has been referred or caused to be referred to a Morningside
Recovery facility by any governmental agency, including but not limited to
probationers or parolees, due to the limitations that Section 509.9 of the California
Building Code places on Group I and R occupancies.
11287- 0007U204428v1.doc
Exhibit "2" to Settlement Agreement
City of Newport Beach
Morningside Recovery, LLC
4. Assembly Uses. Assembly uses are prohibited in these facilities, except those that
are limited solely to client residents of the facility and facility staff (and in some
cases small meetings of a client's family members with facility staff).
5. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the City of Newport Beach's
Municipal Code, all other laws and best industry standards and practices.
6. Trash and Trash Enclosures. Operator shall comply with City code provisions
pertaining to trash enclosures, and if directed by the Planning Director, shall
secure and maintain commercial bin service at the subject properties. Operator
shall provide a sufficient number of plastic trash cans with sealable cowers to
contain all of the refuse generated by the facility, which are to be used at all times.
Trash cans shall be put out for pick up no earlier than 7:00 p.m. and before 8:00
p.m. on the evening before trash collection day, and shall be put back within the
property by 6:00 p.m. on the day of collection.
Smoking and Tobacco Products. Per NBMC Section 20.91A.050(A), no clients,
guests, or any other users of the subject. property may smoke in an area from
which the secondhand smoke may be detected on any parcel other than the parcel
upon which the use is located. Operator shall use its best efforts to contain
secondhand smoke generated by .patients, clients, customers, and staff within the
lot line of the subject property. In addition, Operator will not allow clients, staff,
or residents to litter cigarette butts on the ground, floor, deck, sidewalk, gutter,
boardwalk or street. Operator's administrators and managers shall use their best
efforts to ensure that its clients comply with the City's prohibition on clients'
tobacco use on beaches, boardwalks, and piers (NBMC §11.08.080). This
includes any meetings Mort ingside's clients participate in "off-site."
8. Parking. Operator shall keep garages and other parking spaces at its facilities
open and available for parking for staff, and visiting family members' .vehicles,
cleaning persons' vehicles, and client transport vans at all times. Clients to the
facility are not permitted to have personal vehicles at the facility.
9. Client Transport. Operator shall ensure that loading and unloading of passengers
of the facility's transportation van shall occur only in open parking spaces or
garage spaces. The van driver is prohibited from stopping or double- parking.in a
traffic lane to load and unload passengers. In addition, client drivers shall respect
all City rules regarding parking and/or stopping and waiting to load residents.
Client transport vehicles shall not block adjacent alleys or street ends. Client
drivers shall not leave vehicles in reverse gear if reverse has an audible back -up
> > 2s7- 000Al2oaa2svi.doo
Exhibit "2" to Settlement Agreement
City of Newport Beach
Momingside Recovery, LLC
warning sound. Client drivers shall speak to residents at a level protective of
neighborhood peace, cognizant of the hour, to avoid waking neighbors.
10. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City
upon the property owner and operator.
11. Noise. Operator shall strictly adhere to the City's noise standards (NBMC
§10.26.025; 10.26.030). Operator shall be responsible for minimizing clapping,
stomping, or other noises at meetings or gatherings at the subject property,
consistent with NBMC §10.26.030.
12. Route Plans. Operator shall adhere to the Route Plans for transport of its staff,
residents, clients, and customers. The Route Plans for all Morningside facilities
are attached hereto as "Exhibit 4." Short -term interruptions, such as medical
emergencies or street maintenance beyond Operator's control, are allowable
modifications to the Route Plans.
13. Deliveries. Staff members in their private vehicles may deliver business products
and other packages and goods to the facility during weekdays between the hours
of 9:00 a.m. to 5:00 p.m.
14. Hotline. Operator shall establish, provide public.notice of, and operate a hotline
for receiving inquiries and/or complaints in reference to its operation of its facility.
,The phone number need not be staffed 24 hours a day seven days a week, but
callers should be responded to within the next 24 -hour period. Alternatively, the
Operator shall provide area residents and the City with a contact name, phone
number, and e-mail address that is available 24 hours a day, seven days each
week. This contact shall be available to assist residents and the City with any
problems or concerns arising from the facility. E -mails or messages left for the
Operator's designated contact shall be returned promptly within a 24 -hour period
from receipt.
15. Stakeholder Group. Upon invitation by the City, Operator shall participate in the
activities of any stakeholder committee or group established by the City to address
complaints and concerns of residents of the City regarding the operation of
Residential Care Facilities in the City.
16. Persons per Bedroom. Operator shall not allow more than three clients to sleep
in one bedroom.
I I287.000R1204428v1.doc
Exhibit "2" to Settlement Agreement
City of Newport Beach
j Morningside Recovery, LLC
17. Building and Zoning. Operator recognizes that each of its facilities have specific
setbacks from the side yards, front yard, and/or back yards per the City's Building
and Zoning Codes. Operator will keep these setbacks clear of obstruction,
including building obstruction. The orderly storage of trashcans is acceptable in
setbacks.
18. Facility Nuisances. The subject properties shall not be unsafe, unsightly or
poorly maintained. If Operator receives a nuisance violation from the City in
regards to any of these issues, Operator shall correct the violation within seven
days or contact the City directly to negotiate a mutually agreeable timeline.
19. Beaches and Other Common Gathering Areas. Operator's use of the beaches
for meetings, prayer, conversation, or other gatherings shall show due respect to
non - resident visitors, residents, and other beachgoers, thus allowing them to take
full enjoyment of the beach. Operator shall not conduct business on the beach (per
NBMC §10.08.030).
20. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance of this use permit shall not constitute a waiver of the
requirements of any federal, state or local law, including the requirements of the
California Building Code.
21. Affidavit of Disability. The Operator shall execute an affidavit declaring that all
clients receiving services from this facility are disabled persons, as that term is
defined by federal and state fair housing laws.
11287- WU2044280.doc
Exhibit "2"
Depiction and Description of "Peninsula Zone"
Depiction of Peninsula Zone:
Description of peninsula zone:
Starting at the mouth of the Santa Ana River.
• The land area southedy.of the Newport and Saminouk'Sloughs known as Newport Shores, and
• . The land coastward of PWft Coast Highway to Newport Boulevard known as Balboa Coves, West
Newport Beach, Lido Sands, and Newport Island; and
• The (and southerly of a, line extending along the Federal Navigational, Channel between Newport
Boulevard and the Newport Harbor Jetty, known as the Balboa Peninsula, Lido Peninsula, Lido Isle,
Bay Island, and CanneryVNage; and
Southward on Newport Boulevard: about 50 feet to Lower Newport Bay; and
. All lands southerly of Lower Newport Bay between Newport Boulevard down the Federal Navigational
Channel within the Lower Bay., inclusive of Lido Isle and Bay Island and inclusive of the Balboa
Peninsula.
r-
Exhibit 113" to the Zoning Agreement
Compliance Report Template
(Date Report Submitted)
This form covers the period of (month, day) through (month, day),
20
During the above period, Momingside Recovery, LLC, managed or controlled the following
facilities in Newport Beach:
- -..... ...--- -----
�_...
._--,......_— i1289z106T1121314 v4. cdocdo _._.. _..... _
Morningside Recovery
Travel Routes (draft #1)
s
H
P
H
H
NOTES:
1— Within the boundaries of the above chart, Morningside's Client Transport routes are limited the following streets, except during emergencies
or if approved routes are closed:
• Balboa Boulevard
• Newport Boulevard
• River Avenue (only between S1" Street and Balboa Boulevard — not the section of River Ave between 45`" and 32 0d Street)
• 32nd Street
• Coast Highway
2— The General Rule for Morningside's Client Transport vans shall be that Morningside shall use major thoroughfares (Newport Boulevard and
Balboa Boulevard) whenever possible, avoiding narrow neighborhood streets such as River Avenue between 45d' and 32nd Street).
3 — Access to Morningside's facility at 112 39th Street shall be from 39`h Street, 40`h Street or 38th Street, and Seashore Drive.
4 —The City and Morningside shall work cooperatively to amend these routes whenever Morningside moves a facility.
Attachment No. PC 4
Residential Care Facilities: Licensed and
Unlicensed
Residential Care Facilities:
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ATTACHMENT CC4
City Council Staff Report (9/14/10)
Morningside Recovery Development Agreement
June 3, 2010 Planning Commission meeting minutes
CITY OF NEWPORT BEACH
Planning Commission Minutes
June 3, 2010
Regular Meeting — 6:30 p.m.
ROLL CALL
SUBJECT: MINUTES of the regular meeting of April 22, 2010.
Commissioners Eaton, Unsworth, Peotter, Hawkins, McDaniel, Toerge, and
Motion was made by Commissioner Unsworth, seconded by Commissioner
Hillgren — present
Peotter, to approve the minutes as filed.
STAFF PRESENT:
Motion carried with the following vote:
David Lepo, Planning Director
Ayes:
Patrick J. Alford, Planning Manager
James Campbell, Principal Planner
McDaniel
Leonie Mulvihill, Assistant City Attorney
SUBJECT: MINUTES of the Study Session of May 20, 2010.
Gregg Ramirez, Senior Planner
Motion was made by Commissioner Unsworth, seconded by Commissioner
Melinda Whelan, Assistant Planner
Peotter, to approve the minutes as filed.
Ga lene Olson, Department Assistant
POSTING OF THE AGENDA:
The Planning Commission Agenda was posted on May 28, 2010.
PUBLIC COMMENTS: None
REQUEST FOR CONTINUANCES
None
CONSENT ITEMS
SUBJECT: MINUTES of the regular meeting of April 22, 2010.
ITEM NO. 1
Motion was made by Commissioner Unsworth, seconded by Commissioner
Approved
Peotter, to approve the minutes as filed.
Motion carried with the following vote:
Ayes:
Eaton, Unsworth, Peotter, Hawkins, Toerge, and Hillgren
Abstained:
McDaniel
SUBJECT: MINUTES of the Study Session of May 20, 2010.
ITEM NO. 2
Motion was made by Commissioner Unsworth, seconded by Commissioner
Approved
Peotter, to approve the minutes as filed.
NEWPORT BEACH PLANNING COMMISSION MINUTES 06/03/2010
Motion carried with the following vote:
Ayes:
Eaton, Unsworth, Peotter, Hawkins, McDaniel, Toerge, and Hillgren
Noes:
None
SUBJECT: MINUTES of the regular meeting of May 20, 2010.
ITEM NO. 3
Motion was made by Commissioner Hillgren, seconded by Commissioner
Approved
McDaniel, to approve the minutes as amended.
Motion carried with the following vote:
Ayes:
Eaton, Unsworth, Peotter, Hawkins, McDaniel, Toerge, and Hillgren
Noes:
None
NEW BUSINESS
SUBJECT: Review of Preliminary Fiscal Year 2010 -2011 Capital Improvemeni
ITEM NO. 7
Program (PA2007 -131)
PA2007 -131
An annual review of the Preliminary Fiscal Year 2010 -2011 Capital
Approved
Improvement Program (CIP) is required by the City Charter and State
Statute to determine consistency with the General Plan and to make
recommendations to the City Council concerning the proposed public
works projects.
Public comment was opened.
Public comment was closed.
Motion made by Commissioner Eaton, seconded by Commissioner Hillgren,
after debate, finds the CIP projects are consistent with the policies of the
General Plan, and to report this finding to the City Council.
Motion carried with the following vote:
Ayes:
Eaton, Unsworth, Peotter, Hawkins, McDaniel, Toerge, and Hillgren
Noes:
None
PUBLIC HEARING ITEMS
SUBJECT: D.I.S.C. - (PA2010 -062)
ITEM NOA
3501 Jamboree Road and 301 Bayview Circle
PA2010 -062
An amendment to the Bayview Planned Community (PC -32) text to
Approved
add outpatient surgery and medical office as permitted uses and to
add a parking requirement of 1/200 square feet for such uses. A
traffic study has been prepared pursuant to the Traffic Phasing
Page 2 of 6
NEWPORT BEACH PLANNING COMMISSION MINUTES 06/03/2010
Ordinance for the proposed conversion of 38,759 square feet of
existing general office space to an outpatient surgical center,
including an imaging center, administrative offices, and a soft tissue
physical therapy center.
Melinda Whelan, Assistant Planner, presented the staff report with a slide show
presentation.
Public comment was opened.
Comments were given by the following:
Rick Wood, architect and applicant
Lyle Brakob, 6 Baycrest Court
Paul Anderson, KLR for AEW Capital Management
Public comment was closed.
Motion made by Commissioner Toerge, seconded by Commissioner Peotter,
to adopt a resolution, after debate, as follows: Recommend City Council
approve Planned Community Amendment PD2010 -004, and find that, based
on the weight of the evidence in the administrative record, including Traffic
Study No. TS2010 -002, the Project complies with the Traffic Phasing
Ordinance.
Motion carried with the following vote:
Ayes:
Eaton, Unsworth, Peotter, Hawkins, McDaniel, Toerge, and Hillgren
Noes:
None
Morningside Recovery (PA2010 -069) ITEM NO. 5
4823 A, 4823 B, 5015 A, 5015 B River Avenue, 112 39th Street, and PA2010 -069
29 Ima Loa Court
The application consists of a development agreement between
Morningside Recovery and the City of Newport Beach that provides
an entitlement for the operation of residential care facilities in the
City, imposes limitations on Morningside Recovery's total number of
clients in recovery for drug and alcohol abuse within the City, limits
occupancy at its current facilities and within the Peninsula Zone, and
places controls on the operation of these facilities.
Chairperson Hawkins recused himself from this item due to a proximity conflict
in owning a condominium within 500 feet of the 29 Ima Loa Court property.
Vice Chairperson McDaniel assumed the duties of Chair over this portion of the
meeting.
Patrick Alford, Planning Manager, gave a brief overview of the staff report.
ment was
Approved
Page 3 of 6
NEWPORT BEACH PLANNING COMMISSION MINUTES 06/03/2010
Comments were given by the following:
Ronald Talmo, attorney for Morningside Recovery
Robert Rush, resident
Cindy Koller, West Newport
David Diamond, 111 39 "h St
Mark Gonzales, Newport Crest
Dennis Conway, 16 Ima Loa Ct
Laura Curran, Corona del Mar
Craig Batley, 120 31" St
Denise Oberman, resident
Ed Vanden Bossche, 121 401h St
Sharon Bolls, Newport Crest
Jim Hillbert, Ima Loa Ct
Joseph McDonald, 31 Ima Loa Ct
Ron Van Winkle, 402 Columbia St
Public comment was closed.
Motion made by Commissioner Hillgren, seconded by Commissioner Peotter
to adopt a resolution, after debate and amendments, as follows: Recommend
City Council approve Development Agreement DA2010 -001 with the following
revisions:
1. Restrict number of beds to number of clients plus one for staff.
2. Change occupancy limit from three (3) clients per bedroom to no
more than two (2) clients per bedroom unless the size of the structure
warrants a larger occupancy for any single bedroom.
3. Require relocation of 29 Ima Loa within a reasonable amount of time
due to its location within a private condominium complex with private
streets and shared common walls with private residences.
4. Expand compliance report template to conclude certification as to
compliance with all operating conditions.
5. Require quarterly compliance reports.
6. Include additional remedies for non - compliance with terms of
Development Agreement.
Motion carried with the following vote:
Ayes:
Eaton, Unsworth, Peotter, McDaniel, Toerge, and Hillgren
Noes:
None
Abstained:
Hawkins
Vice Chairperson McDaniel recessed meeting at 9:37 p.m.
Vice Chairperson McDaniel reconvened meeting at 9:44 p.m. and returned
duties of Chair back to Chairperson Hawkins.
Page 4 of 6
NEWPORT BEACH PLANNING COMMISSION MINUTES 06/03/2010
NEW BUSINESS
5 Year Employee Service pins were awarded to Chairperson Hawkins and
ITEM NO. 8
Commissioner Eaton by Commissioner McDaniel.
PUBLIC HEARING ITEMS
SUBJECT: Zoning Code Update (PA2009 -034)
ITEM NO.6
PA2009 -034
The City of Newport Beach is considering a comprehensive update
of the Zoning Code for the purpose of implementing the 2006 update
Continued to
of the General Plan. The Zoning Code is a regulatory document that
June 15,
implements many General Plan polices related to land use and
2010
development.
Jim Campbell, Principal Planner, made a presentation focusing on Part 2 of the
Draft Zoning Code.
Public comment was opened.
Comments were given by the following:
May Ranck, 156 Mesa Drive
Carol McDermott, Government Solutions representing Newport Harbor Yacht
Club
Public comment was closed.
Note: Text in (Italics) represents Planning Commission consensus on
change(s) to Zoning Code text proposed at this meeting. At the conclusion
of the final Planning Commission hearing on the Zoning Code, all such
changes will be included for final recommendations by the Planning
Commission.
• Page 2 -12 for R -89- reduce minimum lot size to 2,375 square feet
Motion made by Commissioner Toerge, seconded by Commissioner Peotter,
after debate, to adjourn meeting and continue this item to Special Meeting on
June 15, 2010.
Motion carried with the following vote:
Ayes:
Eaton, Unsworth, Peotter, Hawkins, McDaniel, Toerge, and Hillgren
Noes:
None
Page 5 of 6
NEWPORT BEACH PLANNING COMMISSION MINUTES 06/03/2010
NEW BUSINESS
City Council Follow -up — meeting adjourned prior to consideration of this item
ITEM NO. 9
Planning Commission reports — meeting adjourned prior to consideration of this
ITEM NO. 10
item
Announcements on matters that Commission members would like placed on a
ITEM NO. 11
future agenda for discussion, action, or report. - meeting adjourned prior to
consideration of this item
Requests for excused absences — meeting adjourned prior to consideration of
ITEM NO. 12
this item
ADJOURNMENT: 11:06 p.m.
CHARLES UNSWORTH, SECRETARY
CITY OF NEWPORT BEACH PLANNING COMMISSION
Page 6 of 6
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 21
August 10, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Patrick J. Alford, Planning Manager
949 - 644 -3235, palford @newportbeachca.gov
SUBJECT: Morningside Recovery Development Agreement
ISSUE:
The Office of the City Attorney is requesting that this item be continued to the
September 14, 2010 City Council Meeting.
RECOMMENDATION:
1) Open public hearing; and
2) Continue Development Agreement No. DA2010 -001 to September 14, 2010.
Prepared and Submitted by:
LA&
Patrick J. Alford, Planning Manager
I
Brown, Leilani 8 (p ( p
From: murphydd @aol.com
ent: Friday, August 06, 2010 11:34 AM
o: Brown, Leilani
Cc: Wolcott, Cathy
Subject: Morningside Recovery Development Agreement 8/10/10 City Council Meeting
Attachments: Morningside Recovery Development Agreement 8- 6- 2010.pdf
Please see the attached document in regards to the Morningside Recovery Development Agreement which will go in front
of the City of Newport Beach City Council on August 10, 2010.
Thanks,
Dan Murphy
1
August 6, 2010
Dear Leilani Brown,
You may recognize this email address from the Newport Beach Bicycle Safety Task Force distribution
list. I see that the formation of a permanent bicycle safety committee is on the August 10, 2010 city
council agenda. Hopefully this new committee will be able to successfully use some of our task force's
work and ideas as a starting point Moving the City of Newport Beach along the path of more bike usage
and safer bike conditions is an important goal. A permanent committee certainly sends the signal that
Newport Beach is serious about integrating bikes into the community.
As for the Momingside Recovery Development Agreement that is being heard at this same meeting, I am
writing because I am the owner of one of the properties included in this agreement- the triplex on Lido Isle
(100 Via Antibes, 102 Via Antibes and 208 Via Lido Soud.) Several thoughts:
- We purchased this property in January 2004. At that point a lease had already been in place for
several years with a sober living treatment facility, Sober Living by the Sea ( SLBTS). Prior to our
purchase, the property had been sporadically maintained. Upon purchase we immediately initiated plans
to improve the property and specifically worked with several representatives of the Lido Isle Community
Association (LICA) in regards to the exterior of the property. Because this property is one of the first to be
seen upon entering Lido Isle, we felt it important to work together to ensure that the end result was
something which was more welcoming and in concert with the exteriors and landscapes of adjacent
homes and common spaces in the community. With their approval of our plans, we repaired the roof,
repainted the exterior to a new color scheme, changed the entire landscape, removed some unsightly
wrought iron fencing, lowered a block wall, and installed brick pavers. In other words, a complete exterior
makeover was undertaken. This remodel has been maintained and well- received by the neighbors ever
since.
- Coincidentally, at the time we began pursuing changes, Lido Isle was exploring the idea of an island
entrance remodel. While the entire remodel did not take place, we worked with these same LICA
representatives as well as the City of Newport Beach to creatively do some cement sidewalk removal at
two of the entrance comers to increase the amount of landscaping. Planning included coordination with
LICA so that our separate interests would be perceived as a joint improvement for our entire Lido Isle
community.
- Since that time we have been very sensitive to this "first impression" of lido Isle and have maintained
the exterior of the property with this in mind. I have never received a single complaint in regards to
the appearance of the property. In fact, doing much of the work myself on a weekly basis, I receive
regular compliments from residents walking by the property.
- When Sober Living by the Sea's most recent lease expired in July 2010, their management made a
decision to move to another property in Newport Beach. A long term employee of SLBTS who changed
employment to Momingside Recovery earlier this year inquired about the possibility of Momingside
Recovery leasing this property. The property had been on the market for sale since January 2010. Our
intention had been to sell the property or to secure tenants on a long temVshort term basis. Short term
rentals are allowed because of the property's MFR zoning, and with its location being close to off island
activities and relatively dose to the beach we thought this would be a good fit On investigating
Momingside Recovery, however, we decided that continuing with a sober living facility would probably be
an even better fit This was confirmed when an adjacent neighbor expressed their relief that Momingside
Recovery would be their neighbor versus a combination of long and/or continually changing short term
tenants. Similar to us, they have come to appreciate the quiet, managed and respectable behaviors
expected in the most recent and incoming set of tenants who are striving to make significant positive
changes in their lives. Not to mention the lack of parking issues, since a typical tenant mix would bring at
least eight to ten additional vehicles to Lido Isle, in contrast to the one or two vehicles associated with
both the past and incoming tenant J
Page Two
- A new aspect of our lease with Momingside Recovery is that it specifies that the property will be a
female -only residence. This is not a City of Newport Beach requirement and was not included in the
original lease already in place with SLBTS when we purchased the property. This change was done as a
courtesy to the adjacent neighbors gleaned from many conversations over the years.
- Another aspect of this new lease is that it specifies that the property is restricted to three dwelling
units. At some time predating our purchase, one of the bedrooms had been converted to an "owner's
unit" which, in essence, created a four- unit property. When the opportunity presented itself in the
conversion period between tenants, we worked with the City of Newport Beach to remedy this situation.
In addition, a covenant is being recorded to safeguard the future use of this property by confirming its
legal status as a one -, two- or three-dwelling unit or condominium property.
- As with the previous, nearly ten -year tenant, Sober Living by Sea, the property will be used by
Momingside Recovery for residential purposes only. In other words, the normal functions and activities
associated with a typical home. No Gasses, counseling, workshops, or similar functions will take place at
the property. These type functions take place off - site in other Momingside Recovery locations in
Newport Beach and/or Costa Mesa specifically for these purposes.
My understanding is that this correspondence, as well as all correspondence received regarding this
hearing, will be placed in the public record for the City Council. There may very well be negative
comments about this development agreement This would be in direct contrast to the fact that I have
never received any phone calls, notices or negative documentation from LICA or any of its
representatives in our more than six years of ownership.
I doubt that there is an adult among us who does not know a family member, friend or co- worker who has
not been affected by addiction. I suspect that it may be the perception of what happens behind
"closed doors' in the recovery and treatment process of those afflicted, and the desire to stay far
removed, that is upsetting, rather than the reality. Until a "magic pill" is invented to cure addictions, these
facilities play an important role in a person's return to productive life in our communities. l will not be able
to attend Tuesday's night meeting, but I welcome any questions or comments at the contact information
below.
n you,
Dan Murphy
murphydd@aol.com
949-514 -1743
Brown, Leilani
From: lauracurran [lauracurran @mac.comj
Sent: Thursday, August 05, 2010 11:15 AM
To: Kiff, Dave; Hunt, David
Cc: Brown, Leilani; Henn, Michael; Gardner, Nancy; Robert Hawkins
Subject: August 10 Morningside Recovery Public Hearing - Development Agreement draft and
proposed additional Addresses
For entry into the Public Record.
Dave and Dave:
I am writing to express my concern regarding the upcoming hearing on the Proposed Development Agreement
PA2010 -069 for Momingside Recovery based on the Meeting Notice posted on Lido.
Specifically, the June 3 Meeting Notice, Item 5; the Resolution draft, page 1; and the Proposed Development
Agreement PA2010- 069/DA 2010 -001 presented at the June 3, 2010 Planning Commission Meeting
specifically refers to 6 addresses: 4823 A River, 4823 B River, 5015 A River, 5015 B River, 112 39th Street and
20 Ima Loa Court.
The Notice for the August 10 Hearing on same DA references 3 additional addresses:
100 via Antibes
102 via Antibes
208 via Lido Soud.
-Since these addresses were not included in the PA2010 -069 draft reviewed on June 3, the upcoming Council
Hearing will cover aDevelopment Agreement different from that reviewed by the Public and the Planning
Commission.
-This could also directly impact several agreement components, including the # of proposed beds, and
transferability of locations /addresses.
- Additionally, the Hearing Notice indicates that the materials will be available on W. However, Staff has
advised that the revised DA will first be available on Friday, which impacts the ability of the public to review
and prepare any comments.
ACTION
These 3 additional addresses should be removed from the draft Agreement, or a new Agreement draft should be
presented and processed for public input through the same channels, i.e. Planning Commission and City
Council.
If I have misread the Hearing Notice and these addresses are not included in the Development Agreement, thank
you in advance for forwarding the appropriate clarification or copy of the Hearing Notice.
Thank you for your attention to this matter.
Laura C. Curran
Begin forwarded message:
From: 'Brown, Leilani" <LBrown @newportbeachca.gov>
Date: August 05, 2010 10:34:15 AM
To: Laura Curran <lauracurran@mac.com>
Subject: Morningside Recovery Public Hearing
Hi Laura,
Ive discussed your concern with Patrick Alford in the Planning Department and he
indicated that the Planning Commissions recommendation is limited to consistency with
Chapter 15.45 (Development Agreements) of the Citys Municipal Code and the General
Plan. Further, that the Planning Commission was aware that the Development
Agreement applies to all of the Morningside Recovery facilities within the City, both
those existing and any future facility.
The staff report for this item will not be available until Friday.
Leilani I. Brown, MMC
City Clerk
City of Newport Beach
3300 Newport Blvd. I Newport Beach I CA 192663
T (949) 644 -30051 F (949) 644 -3039 1 (brown @newportbeachca.gov
Serving the Public with Integrity and Professionalism
Think of trees before you print please.
2
Treasurer:
As you are aware, the West Newport Beach Association ( "WNBA ") Board of Directors has engaged in
Barbara Thibault
the debate to regulate Drug Rehab Operators in the City of Newport Beach. The focus of this letter
Newport Shores
9491642 -5843
is the Morningside Development Agreement DA2010 -001.
1
On June 3, 2010, the Newport Beach Planning Commission held a public hearing to review the Public
P g p g
West Oceanfront
Benefit portion of the Agreement resulting in a number of recommendations to revise the Public
July 29, 2010
RECEIVED
Directors:
1810 are briefly summarized below:
Ken Bryant
President:
Craig Batley
Keith Curry, Mayor
7C{9 AUG _2 AM {p: 03
Absentee Owners Liaison
and Members of the City Council
Mary Bryant
Numbered Streets
9491293 -4630
City of Newport Beach
0.7910E Or-
Vice President:
3300 Newport Boulevard
l ' il= �^I�Y' CLER(
i
Sharon Boles
Newport Beach, California 92663
_ v�
x�
��i ^r •; ^; BEACH
Superior Ave. Liaison
Agreement shall include the Operators certification as to compliance with all operating
River Avenue
949645 -4752
9491306 -8339
e. Reporting. The Compliance Reports shall be submitted on a quarterly basis; and
Jim Miller
Subject: Morningside Zoning and Public Benefit Agreement
Secretary/Membership:
Agreement.
9491933 -9827
Chris Garber
While WNBA fully supports the above recommendations, we suggest adding the following:
Lido Peninsula Resort
Dear Mayor Curry and Members of the City Council:
9491466 -0605
g. Inspection Notice. The City should limit the advanced notice of Public Benefit Agreement
9491645 -8233
Treasurer:
As you are aware, the West Newport Beach Association ( "WNBA ") Board of Directors has engaged in
Barbara Thibault
the debate to regulate Drug Rehab Operators in the City of Newport Beach. The focus of this letter
Newport Shores
9491642 -5843
is the Morningside Development Agreement DA2010 -001.
Hike on:
Mike Johnson
On June 3, 2010, the Newport Beach Planning Commission held a public hearing to review the Public
P g p g
West Oceanfront
Benefit portion of the Agreement resulting in a number of recommendations to revise the Public
9491642 -3125
Benefit Agreement. Such recommendations outlined in the Planning Commission Resolution No.
Directors:
1810 are briefly summarized below:
Ken Bryant
Numbered Streets
9491644 -6266
a. Bed Count. Beds shall be restricted to the number of clients +one bed for staff;
b. Occupancy. Change from three (3) clients per bedroom to no more than two (2) clients per
Mary Bryant
Numbered Streets
larger bedroom, unless the size of the structure warrants a lar ;
occupancy;
g p Y
9491644 -6166
c. Newport Crest. The facility located at 29 Ima Loa Court shall be relocated witl j
reasonable amount of time because it is located within a private condominium complex
Mary Fryer
Seashore Dave
p � to streets and has shared common walls with private residences;
With private p ,
9491887 -0554
d. Compliance Report. The Compliance Report template included as Exhibit 3 to the Zoning
Nicolai Glaser
Agreement shall include the Operators certification as to compliance with all operating
River Avenue
conditions;
9491306 -8339
e. Reporting. The Compliance Reports shall be submitted on a quarterly basis; and
Jim Miller
f. Miscellaneous. Include additional remedies for non - compliance with terms of Development
Newport Island
Agreement.
9491933 -9827
While WNBA fully supports the above recommendations, we suggest adding the following:
Ann O 'Flynn
Balboa Coves
g. Inspection Notice. The City should limit the advanced notice of Public Benefit Agreement
9491645 -8233
Compliance Inspections to no more than 2 hours advance notice prior to the actual City's
Everette Phillips
inspection, considering the fluidity of Rehab operations and the ease in which: patients and
Newport shores
beds can be moved from site -to -site.
9491650 -7528
Robert Rush WNBA believes an important objective of this "Public Benefit" Agreement is to control the numbers
River /Neptune of rehab patients or "clients" served and to limit the impact a rehab facility has on a neighborhood.
9491645 -2977 Therefore, WNBA strongly urges the City Council to revise the Agreement in a way that provides for
George Schroeder meaningful compliance parameters, monitoring and enforcement. These changes above will ensure
Numbered Streets that the Morningside Agreement provides a true benefit to the "Public."
9491646 -2628
Paul Watkins Very truly yo rs,
West Oceanfront
7141556 -0800
Craig $a ey, President
West Newport Beach Association
cc: Dave Kiff, City Manager
Earl McDaniel, Chairman, Planning Commission
Cane, Walker & Harkins LLP
Bradley D. Walker 17821 East Seventeenth Street
David E. Cane Suite 140
ames C. Harkins, IV Tustin, CA 92780
Telephone (714) 573 -8990
Facsimile (714) 573.8999
August 6, 2010
The City of Newport Beach
Mr. Patrick J. Alford
Planning Manager
3300 Newport Boulevard
Newport Beach, CA 92663
Re: Lido Isle Community Association
Subject: Morningside Recovery; DA 2010401
Dear Mr. Alford:
bwalker@linkline.com
dcane @linkline.com
jharkins@linkline.com
File 30443 -001
Our office serves as general counsel to the Lido Isle Community Association.
With respect to the public hearing scheduled for August 10, 2010, concerning the
Morningside Recovery development agreement, I am writing to express Lido Isle Community
Association's opposition to including 208 Via Lido Soud, and 100 and 102 Antibes in the
development agreement in any manner which would conflict with restrictions and limitations
established by an amendment to the Association's CC &Rs approved by the homeowners of Lido
Isle in May of 2008.
The City of Newport Beach is presently in negotiations with Morningside Recovery
concerning a development agreement which the Association is informed and believes would, among
other things, impose limitations on Morningside Recovery's total number of clients in recovery for
drug and alcohol abuse within the City, limit occupancy at its current facilities and within the
Peninsula Zone, and place controls on the operation of these facilities. It is my understanding based
upon our telephone discussion this morning that the development agreement is still under review by
the City Attorney and may not be available until tomorrow.
Three of the addresses which appear to be subject to the development agreement are 208 Via
Lido Soud, and 100 and 102 Antibes all of which are located within Lido Isle (the "Lido Isle Lots ").
The Association is informed and believes that the Lido Isle Lots are not presently owned by
Morningside Recovery, or operated as a community care facility, residential care facility, group
homes other similar facility by Morningside Recovery. In May of 2008, the Lido Isle homeowners
voted to amend the Declaration of Protective Restriction for Lido Isle Community Association (the
The City of Newport Beach
Mr. Patrick J. Alford
August 6, 2010
Page 2
"CC &Rs" for Lido Isle) to create restrictions concerning the operation, maintenance, and
establishment of community care facilities, residential care facilities, group homes and other similar
facilities, including the types of facilities which are operated by Morningside Recovery. A copy of
the recorded Amendment to Declaration of Protective Restrictions, Instrument No. 2008000235975
is enclosed.
The Lido Isle Community Association opposes including the Lido Isle Lots in the
development agreement in any manner which would conflict with restrictions and limitations
established by the Association's Amendment to Declaration of Protective Restrictions.
If you have any questions, please do not hesitate to contact me.
cc: Board of Directors
Lido Isle Community
Members of the Newport Beach City Council (Via Email)
Enc: Amendment to Declaration of Protective Restrictions
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL T0:
DAVID E. CANE, ESQ.
CANE, WALKER & HARKINS LLP
17821 East Seventeenth Street, Suite 140
Tustin, CA 92780
Recorded in official Records, Orange County
Tom Daly, Clerk- Recorder
1111111 1111111111111111111111( 111111111111111011111111111111111111111166 .00
2008000235975 03:18pm 05116108
12049A17 21
0.00 0.00 0.00 0.00 60.00 0.00 99.00 0.00
(SPACE ABOVE FOR RECORDER'S USE)
AMENDMENT
TO
DECLARATION OF PROTECTIVE RESTRICTIONS
FOR
LIDO ISLE COMMUNITY ASSOCIATION
THIS AMENDMENT TO DECLARATION OF PROTECTIVE RESTRICTIONS
( "Amendment ") is made by the LIDO ISLE COMMUNPITASSOCIATION, California nonprofit
mutual benefit corporation ( "Association ").
• • IC
A. There has been a Declaration of Protective Restrictions for Lido Isle Community
Association recorded with the County Recorder of the County of Orange, State of California on
December 10, 1928. at Book 228, Page 1, et seq, as amended and supplemented from time to time
(the "Declaration ").
LEGAL DESCRIPTION OF PROPERTY
B. The property subject to the Declaration (" the Development ") is situated in the City of
Newport Beach, County of Orange, State of California, and is legally described as follows:
Lots 1 through 1094, inclusive, and Lots A through P of Tract 907 as
shown on a Map filed in Book 28, Pages 25 to 36 inclusive of.
Miscellaneous Maps, in the office of the Orange County Recorder.
LIST OF PROPERTY OWNERS
C. A list of property owners in the Development, as required by Government Code,
Section 27288.1, is attached hereto- as Exhibit "A," and incorporated herein by this reference.
A
D. The undersigned President and Secretary of the Association hereby certify that the
following amendment has been approved by the owners of record of more than one -half (1/2) of the
lots and parcels of Tract 907, which approval was obtained in 2008 by Ballot, and which meet the
requirements of Civil Code Section 1355.
NOW, THEREFORE, the Association hereby amends the Declaration as follows:
1. Amendment to Article III (Prohibition of Nuisances).
The following shall be added as a new Paragraph No. 3 to Article III of the Declaration:
"3. This Paragraph 3 shall apply to the operation, maintenance, and /or establishment within the
Association and its attendant real property, of community care facilities, residential care facilities,
group homes and other similar facilities (collectively and individually referred to herein, without
limitation, as "Facilities" or "Facility "), as defined by the California Health and Safety Code and
other applicable federal, state and local law and to Group Residential uses, as defined by the City of
Newport Beach Ordinance No 2008 -5 and other applicable law, where state law and /or any other
applicable law mandates such Facilities must be permitted.
Each Facility shall maintain a minimum separation of six hundred seventeen feet (617') between that
Facility and any other Facility and all parks and /or common areas of Lido Isle Community
Association. Parks and common areas shall be defined as those certain areas so designated by this
Declaration of Restrictions as well as any City, County and/or State mandate, law or regulations.
Each Facility shall maintain adequate liability insurance, including but not limited to Comprehensive
General Liability Coverage, as well as other, related insurance coverage customarily and reasonably
in use by similarity- situated residential facilities, but in no event less than that certain scope of
coverage and policy limits currently maintainedby the Association. The minimum liability limits
under the coverage shall be $2,0000,000 per occurrence and $5,000,000 total annual aggregate. The
Facility shall name the Association as an additional, named insured on all policies and provide
annual proof of insurance to the Association in writing, disclosing the naming of the Association as
an additional named insured.
The Facility, its owners, managers, employees, and /or other occupants and users shall, as a condition
of operation within the Association, waive any and all claims against the Association, its members,
employees, officers, directors and others for damage to all real and personal property in, on, or about
the Facility, and for injuries to persons in or about the Facility, from any cause arising at any time.
Further, the Facility, its owners, managers, employees and/or other occupants and users agree to
hold Association exempt and harmless for and on account of any damage or injury to any person or
personal property of any persons, arising from (a) Facility's use of the property, or (b) Facility's
failure to keep the property and surrounding areas clean and in good condition. Association shall
not be liable to any third party, whether natural person or corporate, for any damage by or from any
act or negligence of any other user and /or occupant of the Facility, or any occupant of adjoining or
contiguous property. Facility, its owners, managers, employees and /or other occupants agree to pay
for all damages to the Association's property, as well as all damage to occupants of adjacent
property and to the property of those occupants caused by the owner's, occupants, employees, and /or
agents' misuse or neglect of the property. —J
'"2'"
Facility, its owners, managers, employees, occupants and others using the Facility shall abide by and
comply with Association's rules and regulations as amended from time to time.
Facility, its employees, managers, agents, and others in a supervisory or other employment or
contractual capacity, shall supervise and use due and customary care to manage and control the
residents of the Facility, when the residents are on or near the premises.
Facility, its employees, managers, agents, and others in a supervisory or other employment or
contractual capacity, shall comply with all local and state laws regulating the licensing and operation
of the Facility."
This Amendment has been executed by the undersigned of the Association on this
day of May, 2008.
LIDO ISLE COMMUNITY ASSOCIATION
By:
Its: President
M
Its:
_3�
STATE OF CALIFORNIA )
SS.
COUNTY OF�Ad_�TQ )
who proved to me on the basis of satisfactory evide to be the person( whose name(¢ subscribed to the
within instrument and a owledged to .me that h�sbe/hey executed the same in hi heytheir-authorized
capacity(+e5), and that 6 his heNtheir' signature (1) on the instrument the person(p, or the entity upon behalf of which
the person(), acted, exec ed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS m an and official seal.
� A
Signature of Notary
STATE OF CALIFORNIA )
SS.
COUNTYOF )
who proved to me on the basis of satisfactory evidence t the person( whose name! �i ubscribed to the
within instrument and ackn edged to me that he she ey executed the same in 'his er their authorized
capacity(t�), and that by hit their signature(3) on the instrument the person(gj, or the entity upon behalf of which
the person(A), acted, execute a instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature of Notary
EXMOTI- 12/03/07 M
510,09411
r . °
PROPOSED DEVELOPMENT AGREEMENT
MORNINGSIDE RECOVERY
CO;,`fC. IL AGEfriLA
N0. 21
, --H-ID
Page 1 of 2
.d a
•
D
204 Gtymoe
36 Citywide, with 30 in Peninsula
Bed Count
Not Limited
156 in Peninsula Zone. including
12 on Lido Isle
Zone
Per State law, can be placed in any
ADP-Licensed '6 and Unders'
residential area No Use Permit
reouired
Limited by bed cap
Limited by bed Gap
CA Health and Safety Code Section 11834 23
Existing can apply for use permit.
Included in bed cap. - may acquire
Currently only three existing Incensed 7 and Overs with use permits. All
ADP - Licensed 7 and Overs'
Included in bed cap
ex�sbng licensed 7 and Overs with
are in Peninsula Zone. where Mommgside is subfact to 30 client
new can apply in MFR only
Unlicensed Sober Living Homes
Existing can apply for use permit
Included in bed cap
Included in bed cap
newcanap&inMF R only
DocumenUApproval Type/Term
Envisions Use Permits - indefinite
Development Agreement - 25 year
Development Agreement - 25 year
term
ten
ten
No definmon of beds v. occupied
omings a sou reduce confusion over occupy s versus
Definitions of 'beds'
Refers to occupied' beds
Links clients' and client beds'
beds
beds v client beds
Hearing Officer shall consider
1 facility per block or across a
1 facility per Dock, no facilities
bcrdenng street. none within 1000'
Distancing between similar uses. other uses
schools, parks. AOOd
of public elementary schools or
!acing each other, none mmm
and whether e
and whether APA standard should
1000' of public elementary schools
large licensed day care - but four
be applied under circumstances
listed exceptions
or large licensed day care
Agreement approved 29 specific
• 4823 River, A 8 8
t - PC suggested that Mommgsde be asked to relocate the 29 Ima Loa
addresses Nine addresses dosed
• 5015 River. A 8 B (ends 9-30-10)
home 'within a reasonable amount of time - Not included in proposed
• 112 391h Street, Unit B
Approved Locations
Not Applicable
or scheduled !o C,ose r future
Momingsde DA.
ysperals Soy ^.e aid��xses
• 29 Ima Loa
� tione of Momingside s proposed properties nave exUusions from
excluded from o stanc np rules
, 100,102 Via Antibes. 208 Via Lido
102 V:)
stancmg rules as some of SLOTS' homes ao
Soud
Required Staffing
Not addressed
24-hour hotline to receive
Qualified mgr on-site or on -call
complaints
24-hour hotline
Addressed in Mommgside's Lease
Gender - Specific Locations
Not addressed
Not addressed
for Via Antibes. Via Lido Soud
triplex - but not otherwise agreed -
Quiet Hours
Not addressed
10 PM - 7 AM (Sun-Thus)
9 PM - 8 AM Daily
11 PM - 7 AM Fn
Government Referrals
Not addressed except for clef nfon
See next three boxes in column
See next three boxes in column
of Parolee Probationer homes
- Regrsterable Offenses - Sex Offenders.
"Govt
Not prohibited
Prohibited only if a Referral'
Specifically prohibited
Criminal Gang Members
Page 1 of 2
PROPOSED DEVELOPMENT AGREEMENT
MORNINGSIDE RECOVERY
Subject7opc
What City s Ordirarce Says
SLBTS Development -
P-oposed Momirgside DA
Notes
- Clients funded by Prop 36
Not prohibited
Not prohibited
Specifically prohibited
Prohibited it a Govt Referral or
Parolees or Probationers
One per DU allowed
parolee from Cal Dept of
One per DU allowed
Corrections or equivalent • it not,
mA mr 1710 allowed
Generally should not be detectable
Good faith effort to prevent smoke
Generally, should not be detectable
Secondhand Smoke
off the property
M m neiahbonno property
off the property
Clients not permitted to have
Must have sulhcnent onsite parking
Shall comply win all City off -street
personal vehicles, garages clear
Parking & Client Vehicles
for use I1 onsite space lot every 3
and available for parking, client
beds NBMC 2066 030)
parking requirements
loading & unloading in legal spaces
Speol c routes not addressed.
Client Transport Routes
transportaron can't generate more
traffic than norm I
Required
Required
Within hours compatible wl
During customary times lot
9 AM - 5 PM weekdays in staff's
Deliveries
neiamborhDod peace 6 ouiet
deliveries in residential area
private vehicles
2 clients per bedroom pus 1
2 Clients unless size of structure
2 clients unless size of structure
Clients per Bedroom
additional client. unless size of
chlipilino warrants more
warrants more for any single
warrants more in any smgie
bedr�
Proposed DA changed per PC s suggestion
Reporting Frequency
None
Semi-annually
Quarterly
Proposed DA changed per PC s suggestion
Includes SLBTS' lormat plus
Reporting Form & Statement of Compliance
Not addressed
Specific to SLBTS
signature demonstrating
Compliance with On Conditions
Proposed DA changed per PC's suggestion
AdminsiratNe citations. revocation
performance. general
Specific performance
Citations, specific
Remedies for Violations
of use permit. general poiroe
peloonance and general police
Proposed DA changed per PCs suggestion
police powers
Page 2 of 2
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VIA EMAIL
MEMORANDUM
To: Newport Beach City Council
cc: Dave Kiff, David Hunt, Leilani Brown
From: Denys H. Oberman
Date: September 14, 2010
Subject: Comments re Morningside Recovery Zoning "Development' Agreement —
For the Public Record
To the Mayor and City Council:
We appreciate the Council's desire to manage and curtail unnecessary litigation expense.
However, not at the expense of losing residential neighborhood integrity or compromising
public health and safety(of both individuals in legitimate recovery, and residents /members of
the community).
The proposed Zoning Agreement is not in the "public interest"
Safety: Response Requirements
Immediate response to complaints and incident reporting is critical to assuring the safety of all -
those in the (licensed and nonlicensed) residential rehab programs,and other members of the
community. The Agreement proposes a response time of 24 hours. We recommend, Immediate
(1 hr.) response - - - -in 24 hours, someone can be dead or cause injury or nuisance .
This response time is consistent with the stated mission of this (type of)Use.
Additionally, it is essential that there be an On -site manager for EVERY facility..on -call invites
inadequate levels of physical supervision and lack of accountability.
Assemblies
The subject Use runs state - licensed and nonlicensed facilities in a close residential area, and
provides services for all of its clients. The business offers services on and off /outside its
residential sites as part of its business activity, including: group meetings including
sponsorship of ,supervision, and travel to, beach and other meeting locations where various
activities Morningside associates with its business occur - - -" exercise, training and counseling,
prayer and meditation ". In order to prevent to residents and the community associated with
smoking,erratic behavior, and relapse, we request the following be included in the Agreement.
2600 Michelson Drive, Suite 1700
Irvine, CA 92612
Tel 949.476.0790 Fax 949 752.8935
viww.obermanassociates. com
Momingside will not conduct directly or sponsor /refer clients to activities:
a. Within 1,000 ft of elementary schools ,day care of parks with children's component
b. Within 1,000 ft of bars or other establishments offering commercial alcohol or drugs
c. Co- mingled or in close proximity to other similar businesses so as to over - concentrate
a particular area with this type of use, and create risk associated with impacts
Due Process Requirements
The City has not provided the public with due process to which it is entitled in its construction
and approval of the proposed Zoning (aka Development) Agreement, including public review
and hearing processes. The Planning Commission hearing concerning Momingside on June 3,
2010 did not include the 3 Lido "facilities "' /addresses proposed in the current Zoning
Agreement before the Council.
Due process is particularly important given the City's approach of granting a long -term
entitlement of 25 years,which it has not granted to other residential uses. The level of
concentration of residential and supporting recovery business Uses creates a fundamental
change in the land use program and general plan for the Penninsula zone —and undermines
the integrity of its residential and marine and beach recreational areas.
This type of Contract Zoning is not allowed by law without full due process and CEQA review.
(reference Trancas and Richeson),It is clear that the City recognizes this issue, as it has
provided that the City will represent and defend both itself and Momingside Recovery, should
challenge or referendum be initiated.
Unless there is an element of the proposed Agreement whereby Morningside Recovery or the
City have accomplished a formal or informal transaction with Sober Living by the Sea to
assign, transfer its facilities or rights associated with the Lido facilities,property(which would
cause the City /SLBTS Zoning Agreement terms to be violated), the Lido facilities are clearly
new Uses, and should be subject to full public process.
There are vagueries associated with the entitlements in the proposed Morningside and
preceeding SLBTS Agreements with the Citywhich need to be clarified, in order to assure the
public that the Penninsula Zone is not vested in perpetuity with an Over - concentration of drug
rehab businesses:
1) SLBTS presumably vacated the property and its facilities at 100 and 102 Antibes and
208 Lido Soud. Where did SLBTS relocate this capacity?
2) SLBTS vacated operations at the 3 addresses below on or about July 31,2010.
Under the Agreement, does this mean that the property no longer is entitled to the
25 year rights for that Use? This would seem to be consistent with our understanding of the
prior Agreement with SLBTS. If this is the case, then clearly the proposed Momingside
Agreement and Use Review for these locations(including property) needs to be subject to
full due process.
3) If the entitlement concerning this Use remains with the property and other locations are
established, then there is No Further Relief from exisiting Over - concentration in the
Penninsula zone, and these locations plus new ones can be used for
recovey /rehab /sober living businesses without any public process or recourse.
We request that clarification be provided as follows: under the Zoning /Development
Agreement when the operator of the Use vacates , that the property return to the
originally intended Use unless as otherwise permitted through full de novo application,
public hearing and review process.
4) With the locations that Morningside is proposing to vacate at 5105A and B River on
September 30 2010, what then is the status of those properties and allowed Use?
With the advent of the proposed Zoning Agreement with Morningside, and the City's
Agreement with Sober Living by the Sea(SLBTS), over 50% of the City's reported
Rehab business Uses will have been granted long -term entitlements and rights outside of the
required public process.
We urge the Council to take more assertive measures towards an equitable approach for the
community, as well as those in the rehab /recovery business.
Overconcentration and Duty to Mitigate
For the record, and public transparency, it should be noted that over 80% of the City's current
known licensed and nonlicensed recovery/rehab Uses are located in the Penninsula zone.
While the community appreciates that the City enacted an ordinance to reasonably regulate
these Uses, and 4 -5 facilities have closed down, there remains serious Over - concentration in
the Penninsula zone, creating continuing risk to those in recovery, and impacts on neighbors.
We request additional explanation as to why the City has decided not to take a more
aggressive stance on protecting its residential and coastal neighborhood —the City has a duty
to mitigate, both for the community and those individuals seeking legitimate recovery .
This matter is of great importance to the integrity of the Penninsula zone, its residential
neighborhoods, public beach and marine areas, and the overall economic vitality of our
community. Everyone is for legitimate rehab /recovery efforts and programs.
3
Over - concentration of these Uses in a dense, residential neighborhood is NOT in the public
interest .Poor management of operations and lack of enforcement concerning nuisances is
NOT in the public interest.
We urge the City Council to carefully consider this Agreement, and its implications for both the
community and those addicts truly sober and actively seeking rehabilitation.
We would greatly appreciate response to these issues, at the Council meeting or immediately
thereafter.
Thank you for your consideration.
4
AFTER
Brown, Leilani
From:
Laura Curran [lauracurran @mac.com]
Sent:
Monday, September 13, 2010 7:21 PM
To:
City Council
Cc:
KiH, Dave; Hunt, David: Brown, Leilani
Subject:
Comments re Morningside Recovery Development Agreement.
For the Public Record
Dear City Council:
As noted at Planning Commission in June 2010, and during a recent meeting with City Attorney David Hunt,
the provisions of the Development Agreement related to Facility and Block definitions are contradictory, and
may make it difficult to enforce this agreement, other agreements and the City's Group Homes ordinance. These
comments re the Facility /Block definition & application, and Staffing levels are offered with the intent to help
create clarity and enforceable provisions if this Agreement is passed by City Council. Please feel free to email
me with any questions.
ITEM A.
These are the 3 most relevant sections of the Staff Report which apply to the Facility Block definition &
Application.
Exhibit A to Settlement Agreement, p.2 Item F.
FACILITY is a residential unit used or occupied by persons in recovery from alcoholism and/or drug abuse.
Page 3. 111. Agreement Item 5:
'Only on (1) treatment home or sober living facility (licensed & unlicensed by ADP) is allowed per BLOCK,
and no FACILITIES facing each other.
Exhibit 1: Operational Conditions
#I Occupancy Level
Of Momingside Recovery's Current Facilities, in 2 cases, there are individual Residential Care Facilities located
on the same block and facing each other:
On River Ave.
1. 4823 A River Avenue & 4823 B River Avenue (top/bottom duplex, sharing common walls)
On Lido Island
2. 100 Via Antibes, 102 Via Antibes, 208 Via Lido Soud (3 units sharing common walls)
For each of these locations, the agreement should be revised so that only ONE Facility is located on each block.
Momingside Recovery would have the option to locate the remaining facilities at other locations, pending
proper review per the City's Group Homes Ordinance.
This will
1) minimize the risk of the Agreement being invalid from its inception
2) address the impact of OVERCONCENTRATION which would result from multiple facilities being operated
jointly, without any limit on the number of residents in adjoining facilities.
These adjoining Facilities would actually meet the definition of an Integral Facilities and be required to operate
in an MFR zone.
http: / /www. city .ncwport- beach.ca.us/Pln/Group Ordinance/8-
23% 20PC% 20Draft %20StaM/o20Report %20FINAL.odf (see page 7+ of Residential Uses Code Amendment August
23, 2007)
Thus, it is important to either
a) enforce the standard of One Residential Facility per Block, and require Momingside Recovery to disperse its
Facilities, or
b) stipulate that the facilities are being allowed to operate as Integral Facilities on an Exception basis, which
applies only to identified Facilities. Further, such exceptions should not be transferrable to future locations.
Without such language, the Agreement leaves the City vulnerable to challenges regarding the application of the
Integral Facilities component of the Group Homes Ordinance, and also does not reduce overconcentration.
This is consistent with feedback provided at the June 2010 Planning Commission Hearing. This was not,
however, reflected in the Summary Minutes, so the contradictory nature of the language may not have surfaced.
ITEM B.
Exhibit 1, Item 2: STAFFING
Section reads:
"Operator shall have enough staff to appropriately and responsibly manage each facility; including at least one
qualified manager on -site or on -call at all times."
Consistent with the definition of each Facility as a Residential Care Unit, this should he clarified to ensure
adequate staffing to address Staffing for the entire Momingside Recovery Operation:
"At each FACILITY, Momingside Recovery will employ a dedicated Manager, who is on -site, or with the
Residents at all times, for a minimum of 6 Resident Managers, 1 per FACILITY, on staff at all times. A
Manager may only be assigned to ONE FACILITY and FACILITIES may not share Managers."
Thank you for your efforts, and for addressing these matters.
Laura C. Curran
Newport Beach, CA
Brown. Leilani
From:
Cynthia Koller (gracenb1 @yahoo.comj
Sent:
Tuesday, September 14, 2010 8:53 AM
To:
Brown, Leilani
Subject:
Fw: Morningside Development Agreement
Attachments:
Cynthias Pictures 588.JPG; Cynthias Pictures 587.JPG; Cynthias Pictures 589 JPG, Cynthias
Pictures 582.JPG; Cynthias Pictures 584.JPG
Leilani,
Could you please enter this into the record and can you place enough copies on the back table for the public as 1
will not be able to attend this evening.
Thank You
Cindy Koller
- -- On Thu, 9/9/10, Cynthia koller <gracenbICWyahoo.com> wrote:
From: Cynthia koller <gracenb I @yahoo.com>
Subject: Morningside Development Agreement
To: DKiff @city.newport- beach.ca.us, "DavidHunt" <dhunt@newportbeachca.gov >, "Nancy Gardner"
<gardnemcy@aol.com >, lesliejdaigle@aol.com, cunyk @pfn.com, edselich@adelphia.net, "Mike
Henn" <mhenn527@hotmail.com >, pamhdigm @aol.com, "Susan/Barry Eaton"
<eaton727 @earthlink.net >, cwunsworth @cox.net, "Earl McDaniel" <emcdaniel @fullertoncb.com >,
"Robert Hawkins" <rhawkins @earthlink.net >, "Michael Toerge" <strataland @earthlink.net >,
bhillgren @highrhodes.com
Cc: "Dr. Gloria Alkire" <doctorgja @gmail.com >, "Delores otting" <amoderosa@aol.com >, "Bettina
Deininger" <bettina22@roadnumer.com >, "bob rush" <nush @usrealtygroup.com >, "Ed Van den
Bossche" <edvanforte@roadmmner.com >, cindymcneish @gmail.com,
d.oberman @obermanassociates.com, "Drew" < dwetherholt (&,marcusmillichap.com >, "Ken Darleen
Kuhlmann" <darleenkuhl @Yahoo.com >, "wcmer escher" <escherw@southcoastplaza.com >,
joverley @ocregister.com, lauracurrantti mac.com, lennymark @adelphia.net, Igreen002@adelphia.net,
"linda orozco" < lorozco @cxchange.fullerion.edu >, "lori moms" <lorirmorris @gmail.com >,
mkom70@gmail.com, "richard nichols" <raneng @inetworld.net >, "David Obbage"
<dobbage@segadvisors.com >, wdlongyear@gmail.com
Date: Thursday, September 9, 2010, 5:07 PM
This is the link to the paper so you can view more
pictures:
http://www.ocrep-ister.com/news/momingside-266035-newport-
beach. html? nstrack= sid: 273020hnet :1021cat:31655551order: l
Rehab home uses duplex where parties occur
By JEFF OVERLEY
2010 -09 -10 16:39:51
D
NEWPORT BEACH — As one of Newport Beach's larger operators of drug- and - alcohol rehabilitation homes
seeks city blessing for its business, residents are spotlighting the company's placement of patients in the same
duplex where parties occasionally take place.
Momingside Recovery occupies the second floor of a duplex at 112 39th St. The ground floor is a short-term
residential rental, and photos provided by neighbors — purportedly taken on July 4 — show youths drinking and a
beer pong table on the front patio, right below the second -story balcony.
"There were no Momingside clients in Newport Beach (including at the property at 39th) on the 4th of July,"
said Candace Bruce, Momingside chief executive, by e-mail. "It is typically a 'party holiday locally and we, at
Momingside, and our clients prefer to spend that day in a more suitable environment."
Residents back that account, saying Momingside's unit appeared vacant July 4. But they say the first -floor unit
hosts parties on other occasions — not frequently, but definitely from time to time.
"I've partied there on a Tuesday," said neighbor Lacy Hamenka.
"They're not having raging parties all the time," but first -floor tenants will have drinks now and then, said
neighbor Haig Kirkeby.
Law enforcement has responded to four calls for parties at the first floor since Sept. 2008, according to Newport
Beach police Sgt. Steve Burdette. There have also been two calls for noise or music at the first -floor unit, and
another seven party calls in which records do not specify which unit was involved. In addition, one party call
lists both units and one party call lists the upper unit.
City records say Momingside occupied both units in late 2007, but it is unclear when the arrangement changed.
Bruce, in her e-mail, did not answer questions about the dates Momingside has occupied the individual units at
the address.
On its website, Momingside describes patients recovering in a "safe and caring environment, far from the daily
temptations presented by alcohol."
Momingside operates one home in a condo community, and its others are in and around West Newport, a
popular area for companies that provide substance -abuse therapy.
Many residents say West Newport is a poor setting for addiction treatment, given its reputation for keg parties
and all- nighters; the businesses say integration into communities helps recovering addicts adjust to normal life.
Either way, drug - treatment companies usually control entire homes, whereas Momingside is sharing the 39th
Street property.
On Tuesday, the City Council will consider finalizing a deal with Momingside to end litigation related to
Newport Beach's restrictions on addiction - treatment houses, which are in some cases protected by disability
laws and fair - housing codes.
Under the accord, the company would abide by various good - neighbor provisions, and would agree to house no
more than 36 clients in the city at a time, down from a high of 60 -70 clients.
The company could expand in the future by acquiring a state - licensed rehabilitation home that serves seven or
more patients and has a city permit. Three such homes now exist in Newport Beach.
Contact the writer: 714 - 796 -7952 or joverley( ocregister.com
City of Newport Beach
3300 Newport Beach, Ca
Attention: Dave Kiff, Dave Hunt, City Council, Planning Commission and Staff
Reference: City Council Meetingl Morningside Development Agreement
Gentlemen:
In regards to the upcoming Council Meeting and the hearing of the "Agreement" with Morningside Recovery I would like
this entered into the record.
Being a resident of West Newport on July 4Th I decided to go down to the beach. I live on 39Th St on the 200 block.
My husband, my neighbor and myself headed down to the beach around 5 p.m. making our way through the throngs of
drunk party goers in the street.
What we witnessed next was shocking.
At 112 39TH St., the ONLY MORNINGSIDE LICENSED FACILITY IN NEWPORT a huge crowded drunken rage was
taking place downstairs on site. To say I was shocked would be an understatement.
We stood and watched in complete outrage as beer games were being played and person after person came onto the
property yelling, dancing, drinking, one even trying to find a place to urinate in a beer cup (on site).
I left to go home and get my camera and by the time I came back, (not even 10 minutes) the police were on the property
breaking up the party and making the party goers disperse into the street as you will see in the sampling of photos I
attached.
I was told by city staff that Morningside's statement regarding this was "we sent them to Disneyland ".
REALLY, who can verify this and why should we have too?
What about when the addicts came home to the complete chaos outside and below?
What about the addicts being on site while the party continues until the late evening?
What about the addicts being on site while the parties go on the days before the 4Th and days after, or on Holidays or it's
the weekend, party time?
Does Morningside Recovery expect the public to believe that every time the downstairs unit has a drunken brawl they
scoop up the addicts upstairs and take them somewhere else?
If these clients are in detox as this is their only licensed facility, where is it they take them and how long do they stay?
Does someone call home to find out if the party has subsided?
This is a sham and negligent to the addicts and a slap in the face of the residents.
For the record I have been harassed personally by Morningside's employees since I started speaking out on this
issue and I will not be intimidated by them as the vans STILL ARE SPEEDING UP AND DOWN OUR STREETS which is
in direct violation of the routes given to the city.
The vans are still completely blocking Via Lido at all times of the day as I frequent a business in the village. I witnessed
this today, again.
How long do we have to be saddled with their arrogant behavior and the burden of proving their negative impacts as they
show no respect for the community or our city?
As far as I am concerned the public has been left out of the process and now we are expected to deal with this operator
for the NEXT 25 YEARS?
An operator who boast on their website how they "have several private drug rehab facilities in Newport that are staffed 24
hours a day ", and offer intensive detox. But remember Morningside is only licensed for one home with 5 beds in Newport?
Why do you staff a unlicensed facility? Sounds like they are giving treatment in these unlicensed facilities to me.
Now they have moved into Sober Living by the Sea's old addresses on Lido and this address was not mentioned in the
staff report at the planning commission. How can they move forward without public process and a current license? As of
today, no license for Lido on the ADP website, no license for the Newport Crest location, which they advertise on their
website as "THE CREST.
And now my understanding is Morningside is going to put in a CLINIC on Via Lido which will offer a nursing staff and
treatment. Yet again, no license on the ADP website.
Isn't Lido Village suppose to be going through a revitalization? Does the city consider a unlicensed treatment facility a
community benefit. It seems to me it only benefits court assigned Alternative Sentenced clients and Morningside
Recovery.
When will this operator be held accountable for all of their misrepresentations? This is just an ongoing cat and mouse
game and the operators know exactly how to play.
I would hope common sense and "OUR DEFENSIBLE ORDINANCE" would lead you to stop any kind of development
agreement with Morningside Recovery and stand up for the community you serve.
Respectfully,
Cindy Koller and Family
West Newport Beach Resident
Newport Beach Business Owner
This is the link to the paper so you can view more
pictures:
http://www.ocrevister.com/news/mominggide- 266035- newport-
beach. ht ml? nstrack= sid: 2730201met :1021cat:31655551ordcr: I
Rehab home uses duplex where parties occur
By JEFF OVERLEY
2010 -09 -10 16:39:51
NEWPORT BEACH — As one of Newport Beach's larger operators of drug - and - alcohol rehabilitation homes
seeks city blessing for its business, residents are spotlighting the company's placement of patients in the same
duplex where parties occasionally take place.
Momingside Recovery occupies the second floor of a duplex at 112 39th St. The ground floor is a short-term
residential rental, and photos provided by neighbors — purportedly taken on July 4 — show youths drinking and a
beer pong table on the front patio, right below the second -story balcony.
"There were no Momingside clients in Newport Beach (including at the property at 39th) on the 4th of July,"
said Candace Bruce, Momingside chief executive, by e-mail. "It is typically a'party' holiday locally and we, at
Momingside, and our clients prefer to spend that day in a more suitable environment."
Residents back that account, saying Momingside's unit appeared vacant July 4. But they say the first -floor unit
hosts parties on other occasions — not frequently, but definitely from time to time.
"I've partied there on a Tuesday," said neighbor Lacy Hamenka.
"They're not having raging parties all the time," but first -floor tenants will have drinks now and then, said
neighbor Haig Kirkeby.
Law enforcement has responded to four calls for parties at the first floor since Sept. 2008, according to Newport
Beach police Sgt. Steve Burdette. There have also been two calls for noise or music at the first -floor unit, and
another seven party calls in which records do not specify which unit was involved. In addition, one party call
lists both units and one party call lists the upper unit.
City records say Momingside occupied both units in late 2007, but it is unclear when the arrangement changed.
Bruce, in her e-mail, did not answer questions about the dates Momingside has occupied the individual units at
the address.
On its website, Momingside describes patients recovering in a "safe and caring environment, far from the daily
temptations presented by alcohol."
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September 14, 2010
Agenda Item No. 27
Comparing 2007 to 8 -2010
• CCNB's Peninsula Zone Data (est) 2007:
— Beds: range of 447 - 791
— 103 "facilities" (included offices and Hoag)
• Today:
— Beds:
• SLBTS = 94 beds (capacity for 156 in PZ)
• Morningside = 36 beds (capacity for 30 in PZ)
• Others with UPs or RA = about 67 beds
• Total = 197 beds (capacity for 253 in PZ)
— Homes:
• 19 (in PZ — duplexes and triplex counted as single)
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Group Residential Uses
Comparing 2007 and 2010
August 2010 draft
PROPOSED DEVELOPMENT AGREEMENT MORNINGSIDE RECOVERY
Regisimble Offenses - Sea Offenders, Cnminal Gang
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NOM: In the above cited. 'CMIIU' loom susjsCl to the Same nu1M11CY lsO ure ae
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Mwningside Recovery
Ouarwfy Complwncn Re~ Ropnn
desalted w Exhlbd I to the 7orpng Ay l urnent durvtg the above Campo , Rovar
Period
OATE INamel, (Tif I
MOPMKIWIDE RECOVERY, IlC
By —DAh P4111,11FIVIIIII. rTmeI
Momingsids Recovery Facilities j
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NOM: In the above cited. 'CMIIU' loom susjsCl to the Same nu1M11CY lsO ure ae
-C•wa Be&- ti the Zw" Awewlwd. In osw wa, it MonlsgCw Is fttt nww to
Uaaa r, Chords In a varbcuUr facility, then x is lvr to an o0r.N n ffbor d Cant
Beds n that faaldy
The Mwre vitele Stan Mumbef to pit lee Cly In any nipetlron of the aw,n brde r,
mall be Ie -man pnlnF o I
By my Srpnature tx,-luw I caddy and dedere under itat panaity 41 pw;uly unlel the laws
of the $tee of Call .lurra m my pe,.1 uapaGty and on hoha'I o' Mprr,ngsxfo
Recuw LLC that Mornntpa" ft ary 'vrs nni all O mrnlxxtnl Qmdgo,is al
u.w �m.a v�-�- w..u..» rw � ...w. ��w.. a.,_•- �r�e %v
Exhltat J
Mwningside Recovery
Ouarwfy Complwncn Re~ Ropnn
desalted w Exhlbd I to the 7orpng Ay l urnent durvtg the above Campo , Rovar
Period
OATE INamel, (Tif I
MOPMKIWIDE RECOVERY, IlC
By —DAh P4111,11FIVIIIII. rTmeI
Brown, Leilani
From: cynthia koller [gracenbl @yahoo.comj
Sent: Tuesday, September 28, 2010 2:44 PM a q z
To: Brown, Leilani`�
Subject: Fw: Morningside Development Agreement
1 l.J
- -- On Tue, 9/28/10, eynthia koller <graeenbl@yahoo.eom> wrote:
From: cynthia koller <gracenb 1 @yahoo.com>
Subject: Morningside Development Agreement
To: curryk @pfin.com, parandigm @aol.com, lcsliejdaigle @aol.com, "Nancy Gardner" <gardnemcy @aol.com >,
edselich @adelphia.net, "Mike Henn" <mhenn527 @hotmai1.com >, "Susan/Barry Eaton"
<caton727 @earth1ink.net >, DMff @city.newport- beach.ca.us, "DavidHunt" <dhunt @newportbeachca.gov >,
"Robert Hawkins" <rhawkins @earthlink.net >, bhillgren @highrhodes.com, cwunsworth @cox.net, "Earl
Date: Tuesday, September 28, 2010,1:32 PM
Date: Tuesday, September 28, 2010, 1:20 PM
Mayor Curry, City Council, MrXiff, Mr. Hunt and Staff
As I have a prior engagement this evening and do not know if I will be attending tonight's City Council Meeting,
please enter this in to the record concerning the Morningside Development Agreement.
For the last 5 years the residents who have lived by or in the area of the Morningside recovery homes have tirelessly
documented with the city and police the negative impacts of one of the most egregious recovery home operators as was
requested by Mr. Dave Kiff and Mr. Mike Henn.
This burden has been laid SOLELY ON THE RESIDENTS AS THERE HAS BEEN NO CITY ENFORCEMENT. NONE.
spoke with Barbara at the ADP Complaints Department yesterday, September 27, and I was told there is a outstanding
formal complaint against Morningside and their property at 112 39Th St.in regards to the huge party held on site on the
4Th of July.
You remember the party that was so out of control it made the Orange County Register with pictures of the police busting
up the party. Well it seems "because the State has no budget the case has not been assigned and no one will be doing
any investigations because of the furloughs and having to travel on their own (investigators) expense ".
Let's face it, tonight the City is going to strike a 25 year deal with the most corrupt operator on the Peninsula and has
NEVER EVER addressed the harassment to the public by this operator, the underhanded dealings of this operator, or
even the fact that you have access to police records that substantiate the parties being held at the 112 39Th St.address,
their ONLY LICENSED FACILITY.
As to Candace Bruce boasting and LYING at the City Hall Meeting of September 14 on how she "has spent the last year
working hard trying to maintain good relationships with the neighbors"
Really ? ? ?? On Saturday September 25Th I was entertaining company and neighbors on my patio when a Morningside
van came rolling up my sidewalk/curb in front of all of us slowed down almost to a stop in front of my home and then
the driver and front seat passenger just laughed at us. This is Candace's idea of being neighborly ? ??
They have no reason to be on our street. NONE. HOW MANY TIMES DO THE NEIGHBORS HAVE TO COMPLAIN? I
guess forever because Morningside knows you will do nothing about it. They act like spoiled rotten children with an
entitlement attitude.
On Thursday September 23 1 was shopping over on Via Lido as I often do and witness and took pictures this time of the
vans PARKED IN THE RED ON VIA LIDO FOR OVER 33 MINUTES. At some points community traffic COULD NOT
PASS AND WHEN THEY SAW NO ONE WAS IN THE VANS BACKED DOWN THE STREET TO GET OUT.
THIS HAPPENS AT SOME POINT EVERYDAY.
These examples above only represent the last week of one residents dealings with this egregious operator and I guess it
really shows the Morningside Good Neighbor policy put into place by Candace Bruce and what the residents of Newport
really have to look forward to in our daily lives.
So let me see, we have the State telling us (which I am sure you and Morningside already knew) that NO ONE, FROM
THE STATE IS POLICING THESE HOMES, WHAT IS HAPPENING IN THESE HOMES OR WHO IS BEING PLACED IN
THESE HOMES BECAUSE THE STATE IS BROKE and you expect the public to believe you, the city, are going to
protect us and enforce this agreement?
This ENTIRE process gives the public the impression of non transparency and in my opinion has broken the public trust.
This agreement wreaks of backroom dealings and a conspiracy to leave the residents of Newport Beach out of the
process.
Morningside's continued behavior and your response to it has been despicable.
Cindy Koller
West Newport Beach /Peninsula Resident
"RECEIVED AFTER AGENDA
PRINTED:" *21 at- 29, -lb
Stanley, Shana
From:
Brown, Leilani
Sent:
Tuesday, September 28, 2010 4:40 PM
To:
Stanley, Shana
Subject:
FW: FOR THE PUBLIC RECORD
Importance:
High
Sensitivity:
Confidential
From: Denys Oberman [ mailto: d .oberman @obermanassociates.com]
Sent: Tue 9/28/2010 4:33 PM
To: City Council; Brown, Leilani
Subject: FOR THE PUBLIC RECORD
Council Members -
You have this last opportunity to demonstrate to your constituents that you are not "'contract zoning" away
the safety and residential integrity of our Penninsula zone neighborhoods.
Members of this community applaud your desire to minimize unnecessary legal expense.
However, public safety and the proper regulation of businesses(particularly those with responsibility for managing at -risk
individuals)
needs to be asserted and vigorously defended The Public has a right to know the truth.
For the record, as affirmed by Morningside Recovery management and clients:
1. Morningside has been occupying the Facility at Via Antibes in Lido prior to any permit or Agreement to do so.Our
City manager advised them that " it was fine to move in " - -- without public process, or a completed Agreement.
2. This is a Single Facility, with 10 client beds and 1 resident manager(per Morningside). The Agreement should
reflect same.
We request that Morningside be required to obtain an ADP License for this facility, as its residents indicate that they
are receiving treatment.
3. Morningside has established a second location in Lido Village, in which it provides clinical diagnosis, meetings,
other services
including the provision of medication. While Morningside claims that it does not use methadone, it does administer
other medication to its clientele —
including clientele NOT in ADP residential care facilities(of which Morningside has only one in Newport Beach).
4. Morningside does admit clientele from various court- mandated programs. It is legally required for such
Individuals to be in Licensed Residential Care& Treatment facilities.
WHY YOU SHOULD CARE:
- The Penninsula zone remains Over - concentrated, with both residential and nonresidential programs offering
inadequate supervision to
thousands of at -risk individuals circulating in the coastal community. This does NOT support responsible recovery
efforts, and endorses irresponsible business operators.
- Your constituents have been denied Due Process relative to the majority of these Uses located in the City=
including approximately184 beds in residential facilities and 8 commercial meeting sites in the Penninsula zone,
which have NOT been required to undergo Conditional Use Review and Permitting.
You have repeatedly asked the private citizens of this community to come forward at risk of retaliation to provide
evidence and testimony concerning impacts, and incidents - -- -then have advised them that the City will not enforce
its ordinances to protect their health, safety, and the peace and quiet of their homes
Under your watch, You have created a Legacy for our valuable coastal community ,making it an area unsafe and
unhealthful for the families of this community, and visitors, and unattractive for those who may invest in desired
revitalization and home ownership in the Penninsula zone.
This issue will NOT go out of the public eye simply because City leaders decide to cave in to unscrupulous
businesses and "settle up"
with illcrafted agreements with long -term implications.
There are many eyes on you and the City of Newport- - -- we hope that you will stand up for what is right and in the
Public Interest.
Thank you.
Regards,
Denys H. Oberman - resident and community member, Newport Beach
Cell (949) 230 -5868
Fax(949)752 -8935
Email: d. obermanta7obermanassociates.com
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