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HomeMy WebLinkAbout2007-8 - Making Findings and Establishing a Temporary Moratorium on the Establishment and Operation of New Residential Uses that are Transitory in Nature Such as Parolee-Probationer Homes, Safe Houses, Unlicensed Residential Care Facilities, Residential CORDINANCE NO. 2007- 8 AN INTERIM URGENCY ORDINANCE OF THE CITY OF NEWPORT BEACH, CALIFORNIA, MAKING FINDINGS AND ESTABLISHING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF NEW RESIDENTIAL USES THAT ARE TRANSITORY IN NATURE SUCH AS PAROLEE - PROBATIONER HOMES, SAFE HOUSES, UNLICENSED RESIDENTIAL CARE FACILITIES, RESIDENTIAL CARE FACILITIES, GENERAL, AND BED & BREAKFAST INNS, AS WELL AS THE ISSUANCE OF NEW SHORT - TERM LODGING PERMITS IN ALL RESIDENTIAL ZONING DISTRICTS OF THE CITY WHEREAS, Section 200 of the City Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; and WHEREAS, Government Code Section 65858 provides that for the purpose of protecting the public safety, health and welfare, the City Council may adopt, without following the procedures otherwise required prior to the adoption of a zoning ordinance, as an urgency measure, an interim ordinance, by a vote of four - fifths (4/5) majority, prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time; and WHEREAS, Section 412 of the City Charter provides for the adoption as an emergency measure an interim ordinance to preserve the public peace, health or safety by a vote of at least five (5) City Council members; and WHEREAS, in 2006 the City of Newport Beach adopted a new General Plan and the voters adopted a new Land Use Plan. The General Plan includes a vision statement that provides a framework or vision for the City. The first vision is to Preserve Community Character and provides that "We have preserved our character as a beautiful, unique residential community with diverse upland and coastal neighborhoods. We value our colorful past, the high quality of life, and our community bonds. The successful balancing of the needs of residents, businesses and visitors has been accomplished with the recognition that Newport Beach is primarily a residential community;" and WHEREAS, the City has received evidence of increasing numbers of group homes that are transient in nature and operates more like institutional and boarding housing uses than as Single Housekeeping Unit. These uses are concentrated in residential zoning districts R1.5, R -2, and MFR. Uses such as homes for parolees and probationers, group uses, non - residential uses, and other uses are operating as businesses in residentially 1 zoned areas of the City. These uses and the business operations engendered by these uses are changing the unique character and balance of Newport Beach's residential neighborhoods, violating the General Plan's vision that seeks to retain Newport Beach as primarily a residential community, and in many cases placing incompatible uses in residential neighborhoods, contrary to the policies in the City's Land Use Element (Policies LU 1.1, LU 5.1.1, LU 6.2.6 and LU 6.2.7); and WHEREAS, the number of vacation rentals in the City, which are regulated by requiring a short term lodging permit under Chapter 5.95, has grown steadily over many years, and the City now issues short term lodging permits for approximately 801 residential units on 527 parcels to use as transient rentals. Most are located in residential zoning districts R1.5, R.2, and MFR. The numbers and actions of short-term renters require the City to expend extensive resources on expanded law enforcement, code enforcement, refuse collection and other services, and has strained parking and traffic resources, particularly due to traffic blockages created during the weekly change of tenants; and WHEREAS, citizens of the City have expressed significant concerns regarding the impacts that a proliferation of paroleetprobationer, transient, group, non - residential, and commercial uses has on the community, including, but not limited to, impacts on traffic and parking, excessive delivery times and durations, the commercial use of public property, commercial and /or institutional services offered in private residences, more frequent trash collection, daily arrival of staff who live off -site, loss of affordable rental housing, violations of boardinghouse and illegal dwelling unit regulations of the Municipal Code, obvious business operations in residences, secondhand smoke, use of illegal drugs, and nuisance behaviors such as excessive noise, litter, loud offensive language, and public drunkenness; and WHEREAS, the City has received evidence that residential care facilities licensed to serve six or fewer persons may be operating in duplexes and apartments as a campus or as an integral facility serving seven or more persons without required governmental approvals; and WHEREAS, Land Use Element Policy 6.2.7 provides that the City shall regulate residential and day care facilities to the maximum extent allowed by federal and state law to minimize impacts on residential neighborhoods; and WHEREAS, in 2004 the City Council adopted an ordinance regulating residential care facilities because the transient nature of the uses became of concern to permanent residents; and WHEREAS, significant concerns have been raised by the community regarding the adequacy of current regulations to maintain the residential character of Newport Beach's residentially zoned neighborhoods; and WHEREAS, on January 23, 2007, the City Council adopted Resolution No. 2007 -5 forming the Intense Residential Occupancy Committee to study and evaluate lawful solutions and make recommendations to the City Council on local, state and federal 6 legislation that will allow the City to better mitigate the adverse impacts of intense (dense occupancy and/or transient) residential uses; and WHEREAS, on February 13, 2007, the City Council adopted Resolution No. 2007 -10 initiating an amendment to Title 20 of the Newport Beach Municipal Code to revise land use classifications and definitions related to residential care facilities; and WHEREAS, the City has commenced these studies of appropriate regulations, but additional planning and research are necessary before the City adopts any permanent regulation regarding appropriate uses in residentially zoned districts as well as the issuance of short-term lodging permits; and WHEREAS, the City requires additional time to determine the actual impacts of parolee/probationer, transient, group, non - residential, and commercial uses and short- term lodging permits now permitted in residentially zoned areas. The City also requires additional time to determine appropriate uses in residentially zoned areas, to reduce impacts on residentially zoned areas while complying with federal and state laws protecting the disabled, and to specify appropriate, permitting licensing or registration procedures and desired levels of discretionary review; and WHEREAS, the City Council also needs additional time to receive public comment prior to enacting any permanent regulatory ordinance; and WHEREAS, the City Council finds that owners or operators of parolee /probationer, transient, group, non - residential, and commercial uses and persons desiring to utilize residences to provide short term lodging are likely to submit applications for such uses and /or commence operations of such uses before appropriate regulations and safeguards are in place thereby impacting the peace, health, safety and welfare of the community; and WHEREAS, these uses and facilities may be established in areas that would be inconsistent with surrounding uses or with the character of a residential neighborhood or would be immediately detrimental to the public peace, health, safety, and welfare; and WHEREAS, if those uses are allowed to proceed, such uses could conflict with, and defeat the purpose of, the proposal to study and adopt new regulations regarding these uses. NOW, THEREFORE, the Newport Beach City Council does hereby ordain as follows: SECTION 1: Findings. The City Council finds as follows: A. The above recitals are true and correct and incorporated herein by this reference. 3 B. Based on the recitals above, incorporated into these findings, the City Council hereby finds and determines that there is a current and immediate threat to the public peace, health, safety, and welfare, and that the establishment, commencement of operations, and/or the issuance of use permits, variances, other permits, business licenses, federal exception permits, or other applicable entitlements providing for the establishment or operation of transient uses such as parolee - probationer homes, safe houses, unlicensed residential care facilities, residential care facilities, general, and short-term lodging pursuant to short-term lodging permits, prior to the City completing a study of the existing and potential impact and regulation of these uses and facilities, would pose a current and immediate threat to the public peace, health, safety, and welfare, and that a temporary moratorium on the establishment of these uses and the issuance of such permits, licenses, and entitlements is thus necessary. C. Based on the recitals above, incorporated into these findings, this ordinance is necessary as an emergency measure to preserve the public peace, health or safety. SECTION 2: Imposition of Moratorium. In accordance with the authority granted the City of Newport Beach by the City Charter and Government Code Section 65858, for a period of forty -five (45) days from and after the date of this ordinance, the following provisions are applicable to all residential districts of the City: A. No new transitory use shall be established or operated, and no use permits, variances, short-term lodging permits, other permits, business licenses, federal exception permits, or other applicable entitlements for the establishment or operation of any new transitory use shall be approved or issued, unless otherwise expressly provided for herein. Licensed residential care facilities and small and large family child care homes shall be exempt from the provisions of this ordinance. B. No short-term lodging permit may be issued for any dwelling unit unless, on or before April 24, 2007, the City issued to that dwelling unit a short term lodging permit as required by Section 5.95 of the Newport Beach Municipal Code. C. For purposes of this ordinance the following terms shall have the following meanings: 1. "Large family child care homes" shall have the same meaning as the term is defined in Municipal Code Section 20.05.030(A)(1). 2. "Licensed residential care facilities' are State licensed facilities that are maintained and operated to provide nonmedical residential care, day treatment, or foster agency services for six or fewer adults, children, or adults and children and which are required by State law to be treated as a single housekeeping unit for zoning purposes, but not including State licensed facilities that are operated as integral facilities and together serve seven or more adults, children, or adults and children. Licensed n residential care facilities shall be subject to all land use and property development regulations applicable to single housekeeping units. 3. 'Integral facilities" are two or more licensed residential care facilities that are under the control and management of the same licensee and are integral components of the same facility, such as by providing housing in one facility and recovery, treatment, or other services in another facility, or by designating one facility to provide recovery, treatment, or other services for several residences. Licensed residential care facilities that constitute a campus, as the term is defined in Municipal Code section 23.03.030, are integral facilities. 4. "Parolee- probationer homes" shall mean any residential structure or unit, whether owned and /or operated by an individual or a for - profit or nonprofit entity, that houses two or more parolees - probationers in exchange for monetary or non - monetary consideration given and/or paid by the parolee - probationer and/or any public or private entity or person on behalf of the parolee - probationer. A parolee — probationer includes: A) any individual who has been convicted of a federal crime, sentenced to a United States prison, and received conditional and revocable release in the community under the supervision of a federal parole officer; B) any individual who has served a term of imprisonment in a State prison and who is serving a period of supervised community custody, as defined in Penal Code Section 3000, and is under the jurisdiction of the California Department of Corrections, Parole and Community Services Division; and C) an adult or juvenile sentenced to a term in the California Youth Authority and who has received conditional and revocable release in the community under the supervision of a Youth Authority Parole Officer. 5. `Residential care facilities, general," shall have the same meaning as the term is defined in Municipal Code section 20.05.030(D). 6. `Residential district" shall mean all. areas where the use is designated as a residential use including all residential zoning districts, and residential uses provided for in Planned Community Texts and Special Plan Areas of the City. 7. "Safe houses" shall mean any residential structure or unit, whether owned and/or operated by an individual or a for - profit or nonprofit entity, that houses two or more persons who are not living together as a single family housekeeping unit including, but not limited to, residences providing services to current or former gang members, in exchange for monetary or non - monetary consideration given and/or paid by the current or former gang members and/or any public or private entity or person on behalf of the current or former gang members. 8. "Short term" shall have the same meaning as the term is defined in Municipal Code section 5.95.010(C). 9. "Short term lodging permit" shall mean any permit sought to be acquired or acquired pursuant to the provisions of Chapter 5.95 of the Municipal Code. 5 10. "Single housekeeping unit" shall have the same meaning as the term is defined in Municipal Code Section 20.03.030. 11. "Small family child care homes" shall have the same meaning as the term is defined in Municipal Code Section 20.05.030(A)(2). 12. "Transitory uses" shall include new residential uses where the average tenancy is usually less than ninety (90) days, including but not limited to new parolee- probationer homes, safe house, unlicensed residential care facilities, residential care facilities, general, short-term lodging pursuant to short-term lodging permits and other similar residential uses that are transitory in nature. 13. "Unlicensed residential care facilities" shall mean any residential care facility, limited, as the term is defined in Municipal Code Section 25.05.030(E) that is not licensed by the State. 14. "Bed & Breakfast Inns' shall mean a visitor accommodation as defined in Municipal Code Section 20.050.050(EE) (1). F. As required by State law, the City may continue to accept and process applications for uses prohibited by this moratorium. Any application shall be processed at the applicant's sole cost with the understanding that no use permits, variances, short- term lodging permits, other permits, business licenses, federal exception permits, or other applicable entitlement for a transitory use may be issued until this moratorium is removed. SECTION 3: Planning Study. The Planning Department with the assistance of the City Attorney's Office is directed to analyze the appropriateness of transientory uses within residential districts in the City of Newport Beach, including but not limited to evaluating the actual impacts of such transitory uses on the residential character of the districts, conflicts in state and federal law, other legal issues regarding such uses, the desirability of such uses, and the extent of regulatory controls, should such uses be thought appropriate in residential districts. SECTION 4: Reasonable Accommodation. In compliance with Fair Housing Laws (42 USC Section 3600 et seq. and Government Code Section 12900 et seq.), it is the City's policy to provide reasonable accommodation in the application of this interim urgency ordinance to any person with a disability who seeks fair access to housing. "Disability" shall have the same meaning as the terms "disability" and "handicapped" in the Fair Housing Laws. A. An application for reasonable accommodation in the application of this interim urgency ordinance shall be made to the Planning Director and shall include: 0 1. The provision of this ordinance from which accommodation is being requested; 2. The basis for the claim that the individuals affected are considered disabled under the Fair Housing Laws, and why the accommodation is necessary to provide equal opportunity for housing and to make the specific housing available to the individuals; and 3. Any other information the Planning Director reasonably determines in necessary. B. In making a determination regarding the reasonableness of the requested accommodation, the following factors shall be considered: 1. Special need created by the disability; 2. Potential benefit that can be accomplished by the requested accommodation; 3. Potential impact on property in the vicinity; 4. Physical attributes of the property and structures; 5. Alternative accommodations that may provide an equivalent level of benefit; 6. In the case of a determination involving a one - family dwelling, whether the occupants would be considered a single housekeeping unit; 7. Whether the requested accommodation would impose an undue financial or administrative burden on the City; 8. Whether the requested accommodation would require a fundamental alteration in the nature of a City program; and 9. Whether granting the request would be consistent with the City's General Plan. C. Any request for reasonable accommodation from the provisions of this ordinance shall be reviewed and considered by the Planning Commission at a public hearing and may be approved, conditionally approved, or denied by the Planning Commission. SECTION 5: Amendments to Ordinance. The City Council by ordinance after notice of public hearing, by the affirmative vote of at least four -fifths (4/5) of the voting City Council Members may modify, amend, delete or 1'1 add to this ordinance upon a finding that such action will implement and enforce the goals, policies, and purposes of this ordinance. SECTION 6: Compliance with California Environmental Quality Act. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; in that it prevents changes in the environment pending the completion of the contemplated municipal code review. SECTION 7: Waiver. The City, on a case by case basis, shall have the authority, upon a showing of good cause by an applicant, to waive the interim prohibition /moratorium imposed by this ordinance. Good cause shall mean a factual and evidentiary showing by the applicant that the interim prohibition /moratorium, if not waived, will deprive the applicant of substantially all reasonable use of his/her property. SECTION 8: Term of Urgency Ordinance; Extension. This interim urgency ordinance shall by operation of law be of no further force and effect forty five (45) days from and after the date of this adoption on April 24, 2007; provided, however, that after notice of public hearing pursuant to Government Code Section 65090, the City Council Members may by a four -fifths (4/5) vote of the voting City Councilmembers extend this interim or urgency ordinance for an initial period of time up to ten (10) months and fifteen (15) days. Thereafter, after hearing a further one (1) year extension is also permitted. SECTION 9: Severability. The City Council hereby declares that if any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION 10: Effective Date. This ordinance is hereby declared to be an urgency measure and shall be enforced and be in effect immediately upon its adoption. 93 SECTION 11: Publication. 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 of Newport Beach within fifteen (15) days of its adoption. This Ordinance was introduced and adopted as an urgency measure at a regular meeting of the City Council of the City of Newport Beach held on the 24t" day of April, 2007, and adopted on the 24th dayof April, 2007, by the following vote, to -wit: AYES, COUNCILMEMBERS Henn, Curry, Selich, Daigle, Gardner, Mayor Rosansky NOES,COUNCILMEMBERS Nnnr ABSENT, COUNCILMEMBERS Webb CITY CLERK 9 STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2007 -8 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 24th day of April 2007, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Curry, Selich, Daigle, Gardner, Mayor Rosansky Noes: None Absent: Webb Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 25th day of April 2007. (Seal) 1,4 City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2007 -8 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: April 28, 2007. In witness whereof, I have hereunto subscribed mX name this /Ol r) day of 2007. City Clerk City of Newport Beach, California