Loading...
HomeMy WebLinkAbout20 - Newport Coast Recovery - 1216 West Balboa BlvdCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 20 April 14, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Office of the City Attorney David R. Hunt, City Attorney 949/644 -3131 or dhunt @city.newport- beach.ca.us SUBJECT: Appeal of Hearing Officer's Denial of Use Permit —1216 West Balboa Blvd. (Newport Coast Recovery, LLC) ISSUE: Did substantial evidence support the Hearing Officer's denial of Newport Coast Recovery, LLC's ( "Newport Coast Recovery") application for a use permit, and, if not, what action should the City Council take pursuant to Newport Beach Municipal Code section 20.91A.040? RECOMMENDATION: We recommend the Council determine whether substantial evidence in the record supports the Hearing Officer's decision to deny Newport Coast Recovery s application for a use permit. If the Council determines that substantial evidence supports the denial, the Council should sustain the decision of the Hearing Officer. If the Council determines that substantial evidence in the record does not support the denial, the Council must then choose between one of three possible actions: Reverse the Hearing Officer's decision and authorize the issuance of a Use Permit to Newport Coast Recovery at 1216 West Balboa Boulevard under such conditions the Council determines are appropriate based upon the evidence in the hearing record; or 2. Modify the Hearing Officer's decision denying a Use Permit to Newport Coast Recovery at 1216 West Balboa Boulevard based upon the evidence in the hearing record; or 3. Remand the matter to the Hearing Officer for further consideration, which remand shall include direction either to consider specific issues, or to conduct a de novo hearing on whether to grant, conditionally grant, or deny a Use Permit to Newport Coast Recovery at 1216 West Balboa Boulevard. If the Council determines the Hearing Officer's findings are not supported by substantial evidence and directs action be taken based upon choosing one of the three options above, we recommend that a resolution be prepared setting out the determination of the Council and the findings supporting that determination and that the resolution be brought back to the Council for approval and adoption as the Council's final decision on the matter. Appeal of Hearing Officer's Denial of Use Permit Hearing 1216 West Balboa (Newport Coast Recovery) April 14, 2009 Page 2 BACKGROUND: Newport Beach Ordinance 2008 -05 requires group residential uses that were in existence prior to February 22, 2008 and were not in conformity with the provisions of Ordinance 2008 -05 to apply for, and receive, a Use Permit if they wished to remain in operation at their nonconforming location. (Newport Beach Municipal Code ( "NBMC ") section 20.91A.020) All existing group residential uses subject to this requirement must have either received a Use Permit by February 22, 2009 or be within the administrative process in order to remain in operation past that date. (NBMC section 20.62.090.) Newport Coast Recovery operates such a nonconforming use at 1216 W. Balboa Blvd. It applied for a Use Permit. The application was denied and an appeal of that denial was filed by the Applicant. That appeal is now before you for consideration and action. 1. Newport Coast Recovery's Use. Newport Coast Recovery operates an alcohol or drug abuse recovery and treatment facility licensed by the state to treat up to 29 men at 1216 West Balboa Blvd. Newport Coast Recovery was operating this use at the time the City enacted Ordinance 2008 -05. The facility is located in a seven (7) unit apartment building that was constructed in 1949 when the property was zoned R -3. The property was reclassified from R -3 to R -2 zoning in 1989 along with other properties in the area via enactment of Ordinance 89 -24. As a result, the subject structure is legal non - confirming and may continue at its location subject to the provisions of Chapter 20.62 of NBMC (Nonconforming Structures and Uses). Newport Coast Recovery applied for a Use Permit within the time period required by Ordinance 2008 -05. 2. Use Permit Application and Hearing. Newport Coast Recovery originally submitted its application for a use permit on May 20, 2008. The application was not fully complete at the time of the original hearing of the application held on December 8, 2008. Staff recommended a continuance of the hearing to allow the applicant to complete the application. The Hearing Officer continued the hearing to January 12, 2008 after the taking of testimony.' The continued hearing went forward as scheduled on January 12, 2009. At that time the application was complete. Staff recommended that the Hearing Officer make each of the 11 required findings and grant the use permit subject to conditions that established strict operating standards and limited the facility's occupancy to 14 beds. 3. Hearing Officer Action. ' The full record of the proceedings at the Hearing Officer level is submitted to you as the "Hearing Record." Each page of the Hearing Record is numbered consecutively beginning with NCR 000001. References to the Hearing Record are denoted at "HR ", with the bate stamp page number. Appeal of Hearing Officer's Denial of Use Permit Hearing 1216 West Balboa (Newport Coast Recovery) April 14, 2009 Page 3 At the hearings, the Hearing Officer heard testimony from City staff, the applicant and the public. At the January 12, 2009 hearing, Mr. Allen denied the application and directed staff to prepare a Resolution of Denial of this Use Permit, stating that he could not make key findings relating to the preservation of the neighborhood's residential character and overconcentration (see discussion below). A further hearing was held January 22, 2009 for the Hearing Officer to consider the proposed resolution supporting his denial of the application. (HR, NCR 00502.) The resolution, subject to finalized wording, was approved by the Hearing Officer at that hearing. (HR, NCR 00544- 00550.) The Resolution of Denial was then executed on February 4, 2009 (HR, NCCR and a copy of which is attached as Attachment "1." The applicant filed this appeal of the Hearing Officer's denial pursuant to the provisions of NBMC Section 20.91A.040 in a timely fashion on February 11, 2009. A copy of the appeal is attached as Attachment "2." 4. Previous Council Agenda. This appeal was originally noticed for hearing on the March 24, 2009 Council Agenda. Steve Polin, Esq., counsel for Appellant, requested a continuance of the matter due to an irreconcilable scheduling conflict. As a result, staff recommended a onetime continuance. The Council continued the hearing from March 24, 2009 to April 14, 2009. Staff gave notice of the continuance and of the fact that the matter would not be continued again. Appeals of Hearing Officer decisions on residential use permits are heard by the City Council. (NBMC Section 20.91A.040.) If appealed, the Council reviews the Hearing Officer's decision under a "substantial evidence" standard of review. If the Hearing Officer's decision is supported by substantial evidence, it must be sustained by the Council. If the Hearing Officer's decision is not supported by substantial evidence, the Council may reverse, modify and /or remand the matter to the Hearing Officer. 1. Was the Hearing Officer's Decision Supported by Substantial Evidence? Appeals from decisions on residential use permit applications by Hearing Officers are unique under your Municipal Code. You are not given full authority to address the issues as you may choose "de novo." You are restricted to considering whether there is substantial evidence in the record of the proceeding that supports the Hearing Officer's determination. If there is substantial evidence, whether you agree with the determination or not, you must support the determination and deny the appeal. If there is not substantial evidence, then you cannot support the decision of the hearing officer and you should grant the appeal. a. Unique Standard of Review There are two different standards by which the Council makes decisions on appeals of use permit decisions under our Municipal Code, one for use permits in districts zoned for non - residential uses and one for districts zoned for residential uses such as this one. Appeal of Hearing Officer's Denial of Use Permit Hearing 1216 West Balboa (Newport Coast Recovery) April 14, 2009 Page 4 (1) For use permits in districts zoned for non - residential uses. NBMC Chapter 20.91 establishes procedures for approval, conditional approval or disapproval of use permits and variances in all areas of the City that are not zoned for residential use. Section 20.91.060 provides that decisions made by the Planning Commission are reviewed by the City Council on appeal, and that the procedures for such appeals are codified in NBMC Chapter 20.95. Chapter 20.95 states: The public hearing on an appeal shall be conducted "de novo" in that the decision that has been appealed has no force or effect as of the date on which the appeal was filed. The appellate body is not bound by the decision that has been appealed or limited to the issues raised on appeal. The appellate body shall hear testimony of the appellant, the applicant, and any other interested party. (NBMC Section 20.95.060(C).) Therefore, the Council has acted as both the appellate body and the finder of fact in past hearings on appeals from decisions on use permits in areas zoned for commercial or industrial use. Public testimony and evidence not presented at the Planning Commission hearings has been properly presented to and considered by the Council in these de novo hearings. (2) For use permits in districts zoned for residential uses. When considering permits for uses conditionally permitted in residential districts such as this one, NBMC Chapter 20.91A establishes a different decision - making body and a distinctly different standard of appellate review by the Council. Applications for use permits in residential districts are reviewed and approved, conditionally approved or disapproved by a Hearing Officer rather than the Planning Commission, in accordance with the procedures set forth in Chapter 20.91A. Unlike appeals for use permits approved, conditionally approved or disapproved by the Planning Commission, NBMC section 20.91A.040 states: Decisions of the Hearing Officer may be appealed to the City Council. Notwithstanding Section 20.95.060, the standard of review shall not be de novo and the City Council shall determine whether the findings made by the Hearing Officer are supported by substantial evidence presented during the evidentiary hearing. The City Council acting as the appellate body may sustain, reverse or modify the decision of the Hearing Officer or remand the matter for further consideration, which remand shall include either specific issues to be considered or a direction for a de novo hearing. (NBMC Section 20.91A.040 [Italics added].) When reviewing the decisions of a Hearing Officer, the Council is therefore required by NBMC section 20.91A.040 to apply the "substantial evidence test." This means that the Council shall uphold the decision of the Hearing Officer if there is substantial evidence in the hearing record as a whole to support the decision he made. Thus, the inquiry for the Council is whether the Hearing Officer abused his discretion when he denied the application for the permit. Appeal of Hearing Officer's Denial of Use Permit Hearing 1216 West Balboa (Newport Coast Recovery) April 14, 2009 Page 5 While the concept of "abuse of discretion" is well defined in the law, it is a bit obtuse. In finding abuse of discretion, the City Council shall consider whether the Hearing Officer's action was arbitrary, capricious, in excess of his jurisdiction, entirely lacking in evidentiary support, or without reasonable or rational basis as a matter of law. A prejudicial abuse of discretion is established if the Hearing Officer did not proceed in a manner required by law, or if his findings are not supported by substantial evidence in the record. (Sierra Club v. County of Napa (2004) 121 Cal.App.4'h 1490, 1497.) City staff, the applicant and members of the public may make comments regarding this issue at the Council's hearing on the appeal. However, in making its determination the City Council is limited to a review of the hearing record from the proceedings below. It may neither substitute its views for those of the Hearing Officer, nor reweigh conflicting evidence presented to him. The decisions of the Hearing Officer are given substantial deference and are presumed correct. (ld.) The party seeking review (in this case, the applicant) bears the burden of showing that the Hearing Officer's decisions are not supported by substantial evidence in the record and the Council "must resolve reasonable doubts in favor of the administrative findings and determination." (ld.) "Substantial evidence" means "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." Such substantial evidence may include facts, and expert opinions supported by facts, but not argument, speculation, unsubstantiated opinion, or clearly erroneous evidence. (ld.) Although facts in the hearing record might lead the City Council to a conclusion different from the Hearing Officer's, the City Council may not overturn the Hearing Officer's decision on the grounds that an opposite conclusion based on the same set of facts would have been equally reasonable or more reasonable. It also may not weigh conflicting evidence and determine which side has the better argument. Instead, it must resolve all reasonable doubts in favor of the administrative finding and decision below. (Berkeley Keep Jets Over the Bay Committee v. Board of Commissioners of the Port of Oakland (2001) 91 Cal.App.4t' 1344, 1356.) In summary, the City Council may overturn the Hearing Officer's decision only if it finds that there are insufficient facts, or expert opinions supported by facts, in the hearing record to support the Hearing Officer's decision. b. Discussion of Appellant's Specific Grounds for Appeal. Appellant raises two areas of concern with the Hearing Officer's decision: (1) the asserted fact that Appellant "is the only 'Men's Only' primary care facility in Newport;" and (2) Appellant was essentially first in time on the Peninsula, and as such, it should not be responsible for the issues caused by concentration of this type of use in the neighborhood. The Council should consider these issues when analyzing the issue of substantial evidence supporting the Hearing Officer's decision. c. Appropriate Relief. Per NBMC Section 20.91A.040, the City Council may sustain, reverse or modify the decision of the Hearing Officer if it concludes that decision is not supported by substantial evidence. It may also remand the matter to the Hearing Officer for further consideration. If the City Council Appeal of Hearing Officer's Denial of Use Permit Hearing 1216 West Balboa (Newport Coast Recovery) April 14, 2009 Page 6 remands the matter to the Hearing Officer, NBMC section 20.91A.040 requires that the Council either identify specific issues to be considered or direct that the Hearing Officer conduct a de novo hearing on the matter. 2. Environmental Review: This application 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. The City Council's consideration of this Agenda Item does not require environmental review. 3. Public Notice: This agenda item has been properly noticed as an appeal of a denial of a use permit application (published in the Daily Pilot and mailed to property owners within 300 feet of the subject property 10 days in advance of the hearing date) and in accordance with the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). CONCLUSION: Please determine whether the decision of the Hearing Officer should be sustained or reversed, modified, or reversed with conditions, or remanded for further consideration. If the Council reverses or modifies the Hearing Officer's decision, staff recommends that a resolution be prepared setting out and memorializing the Council's findings and conclusions, and will bring that resolution back for Council review, comment, and adoption at the first available meeting. Submitted by: Office of the City Attorney c Davi- unt, City Attomey Attachment 1: A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH DENYING WITH PREJUDICE USE PERMIT NO. 2008 -033 TO ALLOW AN EXISTING GROUP RESIDENTIAL USE TO CONTINUE AT 1216 WEST BALBOA BOULEVARD, NEWPORT BEACH, CALIFORNIA (PA 2008 -104) Attachment 2: Appeal Notification; Application of Appeal Decision of the Hearing Officer Attachment 3: Memorandum from Staff regarding Appeal of Hearing Officer Decision Attachment 4: Hearing Record: Proceedings regarding Newport Coast Recovery, LLC, Application for Use Permit for 1216 West Balboa Boulevard, Newport Beach, California (UP 2008 -033) (PA 2008 -104) (A09- 00397] CC staff Report for 04.94.09 Agenda