HomeMy WebLinkAboutHO2014-001 - REQUEST FOR REASONABLE ACCOMMODATION - 610 36th StRESOLUTION NO. HO2014 -001
A RESOLUTION OF A HEARING OFFICER OF THE CITY OF
NEWPORT BEACH DENYING REASONABLE
ACCOMMODATION NO. 2013 -001 FOR A RESIDENTIAL CARE
FACILITY LOCATED AT 610 36th STREET AND OPERATED BY
OHIO HOUSE, INC. (PA2013 -198)
THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Brandon Stump, as owner of Ohio House, LLC, with respect
to property located at 610 36th Street, and legally described as Lot 6, Block 635 of Canal
Section Tract, requesting accommodation from the requirements of Newport Beach
Municipal Code (NBMC) Section 20.18.020 (Residential Zoning Districts Land Uses
and Permit Requirements).
2. The applicant proposes to allow the continued operation of an existing unlicensed
residential care facility for up to 10 clients in recovery from alcohol and /or drug
addiction and one resident supervisor in a duplex.
3. The subject property is located within the Two -Unit Residential (R -2) Zoning District and
the General Plan Land Use Element category is Two -Unit Residential (R -2).
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Two -Unit Residential (RT -D).
5. A public hearing was held on February 24, 2014, in the Corona del Mar Conference
Room (Bay E -1st Floor) at 100 Civic Center Drive, Newport Beach. 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 Hearing Officer at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines,
projects which a public agency rejects or disapproves are not subject to CEQA review.
SECTION 3. REQUIRED FINDINGS.
In accordance with Section 20.52.070 of the Newport Beach Municipal Code, the following
findings and facts in support of such findings are set forth:
Hearing Officer Resolution No. HO2014 -001
Page 2 of 5
Finding:
A. The requested accommodation is requested by or on the behalf of one or more individuals
with a disability protected under the Fair Housing Laws.
Facts in Support of Finding:
1. The Ohio House submitted a statement signed under penalty of perjury that every
client of the facility is in recovery from alcohol and /or drug addiction. Federal
regulations and case law have defined recovery from alcoholism and drug
addiction as a disability because it is a physical or mental condition that
substantially impairs one or more major daily life activities.
Finding:
B. The requested accommodation is necessary to provide one or more individuals with a
disability an equal opportunity to use and enjoy a dwelling.
Facts Do Not Support The Finding:
1. There are several other facilities in the City which provide a sober living
environment for 6 or fewer persons and 7 or more persons in duplex structures
located in the R -2 Zoning District. The number of sober living beds available in
other previously authorized facilities provide ample alternatives to offer current and
potential Ohio House clients with an opportunity to enter the housing type of their
choice within the same Balboa Peninsula neighborhood as the subject property.
Overcrowding of the facility or institutionalization of the neighborhood interferes
with the clients' reintegration into society.
2. In February 2014 City staff estimated that there are 335 authorized residential care
facility client beds with 201 of those beds currently operating in the 26 open
facilities within the City. These residential care facilities within the City include
several in R -2 Zoning Districts in the Balboa Peninsula area and could provide a
person recovering from addiction with an equal opportunity to live in a sober living
environment without granting the accommodation.
3. The applicant has not provided adequate evidence or information clearly
demonstrating that the size or type of facility requested is necessary for the
facility's financial viability. In addition, the information that has been provided by the
applicant does not clearly state why exemption from the Residential District Land
Use Regulations requirements is necessary to make its facilities viable in light of
the current market for the type of services it provides. The applicant does state that
Ohio House is more affordable than other facilities but does not provide evidence
of this.
4. The applicant has not submitted any information that would demonstrate that
clients of the facility will receive any greater therapeutic benefit from this unlicensed
10 -15 -2013
Hearing Officer Resolution No. HO2014 -001
Paqe 3 of 5
large facility than several other large facilities licensed and authorized by the City
within the Balboa Peninsula area.
Finding:
C. That the requested accommodation will not impose an undue financial or administrative
burden on the City as "undue financial or administrative burden" is defined in Fair Housing
Laws and interpretive case law.
Facts Do Not Support The Finding:
1. The applicant states the clients are not transient, and has reported that the typical
length of stay is eight months. However, to date there has been increased Code
Enforcement activity associated with the large facility. Code Enforcement has been
provided evidence of parking, littering, and noise violations discussed in detail on
page 17 of the staff report. This could impose an undue financial or administrative
burden on the City.
Finding:
D. That the requested accommodation will not result in a fundamental alteration in the nature
of a City program, as `fundamental alteration" is defined in Fair Housing Laws and
interpretive case law.
Facts Do Not Support The Finding:
1. Authorizing the continued use by an operator who established a facility illegally
would undermine a basic purpose of the City's General Plan and Zoning Code.
Policy LU 6.2.7 of the City of Newport Beach General Plan requires the City to
regulate day care and residential care facilities to the maximum extent allowed by
federal and state law to minimize impacts on residential neighborhoods. The City
adopted Ordinance No. 2008 -5 in order to implement General Plan Policy LU 6.2.7.
2. To implement the stated purposes of the General Plan and Zoning Code,
Ordinance No. 2008 -5 placed regulations on all groups not living either as single
housekeeping units or in a residential care facility classified as "Residential Care
Facilities ". These regulations are in place to ensure that the fundamental purposes
of the Zoning Code can be achieved, and so that adverse secondary impacts that
residential care facilities may have on the surrounding neighborhood can be
mitigated. The Zoning Code requires that:
• Unlicensed Residential Care Facilities are only allowed within the Multi -
Family Residential Zoning Districts and may not operate without the
approval of a conditional use permit.
10 -15 -2013
Hearing Officer Resolution No. HO2014 -001
Paqe 4 of 5
An express purpose of requiring operational standards for conditional use
permits in residential zones is to ensure that conditional uses are operated
in a manner consistent with federal, state, and local law; and
A required finding to grant approval of a conditional use permit in a
residential zoning district is that the operator does not have a demonstrated
pattern or practice of operating similar uses in violation of federal, state, or
local law.
3. To support the General Plan's purpose of minimizing impacts of residential care
facilities on residential neighborhoods, the Zoning Code regulates such facilities to
the maximum extent permitted by law, even when granting reasonable
accommodations. Waiving operational standards provided by a conditional use
permit and permitting a large residential care facility where it is prohibited inhibits
the City Council to provide the maximum protection required by the General Plan
and would undermine a basic purpose of the General Plan and the Zoning Code. In
the case of Ohio House, the operator has demonstrated a practice of operating a
facility in violation of local laws.
4. Ohio House established the facility in May 2013 without first applying for and
receiving a reasonable accommodation from the City, which is a violation of
Section 20.18.030 of the NBMC. The Hearing Officer found that given the violations
of the NBMC, allowing Ohio House to continue operating at its current location
would undermine one of the basic purposes and operational standards the
Conditional Use Permit requirement was put in place to achieve. Specifically, the
use does not conform to the operational standards established by Section
20.52.030(G.2.c).
5. Overlooking the violations of local law by Ohio House, and waiving the Conditional
Use Permit operational standards related to those violations is not consistent with
the provisions of the General Plan. The establishment of "Residential Care Facility,
General Unlicensed" uses in residential zoning districts where such uses are not
permitted without first applying for and receiving a reasonable accommodation
would be detrimental to the harmonious and orderly growth of the City.
Finding:
E. The requested accommodation will not, under the specific facts of the case, result in a
direct threat to the health or safety of other individuals or substantial physical damage to
the property of others.
Facts In Support Of The Finding:
1. A request for reasonable accommodation may be denied if granting it would pose "a
direct threat to the health or safety of other individuals or result in substantial physical
damage to the property of others." See 42 U.S.C. § 3604(f)(9). This is a very limited
exception and can only be used when, based on the specific facts of a situation, a
10 -15 -2013
Hearing Officer Resolution No. HO2014 -001
Page 5 of 5
requested accommodation results in a significant and particularized threat. Federal
cases interpreting this exception in the FHAA indicate that requested accommodations
cannot be denied due to generalized fears of the risks posed by disabled persons. In
this case, there are no facts that suggest granting the requested accommodation
would result in a significant and particularized threat.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Hearing Officer of the City of Newport Beach hereby denies Reasonable
Accommodation No. RA2013 -001, and the operator shall abate the use in the lower
unit by May 21, 2014, and shall abate the use in the upper unit by July 31, 2014. Both
units are subject to the Abatement Operational Conditions set forth in Exhibit "A"
attached hereto and made a part hereof.
2. This action shall become final and effective 14 days after the adoption of this
Resolution unless within such time an appeal is filed with the City Clerk in accordance
with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal
Code.
PASSED, APPROVED AND ADOPTED THIS 28" DAY OF FEBRUARY, 2014.
Ho' : JbHn "C. Wooll y, retired Judge
(California S perior ourt, Orange County)
Hearing Offi r for th City of Newport Beach
ATTEST:
4
City Clerk
10 -15 -2013
ABATEMENT CONDITIONS ASSOCIATED WITH DENIAL OF
REASONABLE ACCOMMODATION NO, RA2013 -001
Ohio House, LLC
61036 th Street, Newport Beach
1. Abatement Period. This use shall abate no later than May 21, 2014, from the
lower unit and no later than July 31, 2014, from the upper unit.
2. Occupancy Level. The Operator shall limit occupancy of the lower unit to five
client beds and occupancy of the upper unit to five client beds and one on -site
resident manager can reside in either of the units. Operator shall not accept
any new resident clients for either of the units during the abatement period.
3. Staffing. Operator shall have one qualified manager on -site at all times clients
are present at the facility to appropriately and responsibly manage the facility.
4. 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 this
facility by any governmental agency, including but not limited to probationers or
parolees.
5. Assembly Uses. Assembly uses, including meetings and gatherings with non-
resident attendees, are prohibited at the facility, except those that are limited
solely to client residents of the facility and facility staff.
6. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the Newport Beach Municipal
Code, all other laws and best industry standards and practices.
7. Trash. Operator shall abide by the City's regulations regarding trash disposal
including providing the proper amount of trash cans for the property's use (so
that cans do not overflow), placing the cans out no earlier than 7:00 p.m. the
evening prior to collection, and placing the cans back in the side yard (or other
contained area) no later than 6:00 p.m. the day of collection.
8. Smoking & Cigarette Litter. 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.
Ohio House, LLC shall enforce house rules against litter, including prohibiting
clients, staff, and /or residents from littering cigarette butts on the ground,
sidewalk, gutter or street.
9. Vehicles, Parking & Garages. All vehicles associated with this facility,
including the client transportation vehicle, shall park on site. This facility may
have a maximum of two vehicles associated with its use. The Operator shall
keep the two designated garage parking spaces at the facility open and
available for parking for the manager and resident clients at all times. Client
move -out shall be accomplished in such a manner that traffic on area streets
and /or neighboring driveways is not blocked.
10. Transportation. Facility residents and staff shall abide by and respect all City
rules regarding parking, stopping and waiting to load and unload resident
clients, and driving on City streets. All client transportation drivers are
prohibited from stopping or double - parking in a traffic lane, or blocking a
sidewalk.
11. Quiet Hours. The on -site facility manager shall maintain "Quiet Hours"
between 10:00 p.m. to 8:00 a.m., daily, where persons on the street or on
adjacent properties cannot hear any noise (including music, TV's, voices) from
the facility except in an emergency.
12. 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.
13. Deliveries. Any deliveries of business products, or other packages, goods, or
other tangible items to the facility shall be made during weekdays between the
hours of 9:00 a.m. and 5:00 p.m.
14. Contact Information. Operator shall provide area residents and the City with a
24/7 contact name, phone number and e-mail address to assist residents and
the City with problems or concerns arising from the facility. E -mails or messages
left for the Operator's designated contact shall be responded to within the next
24 -hour period.
15. Building and Zoning. Operator recognizes that the subject property has
specific setbacks from the side yards, front yard, and /or back yard per the City's
Building and Zoning Codes. Operator will keep these setbacks clear of
obstructions, including building obstructions. The orderly storage of trashcans is
acceptable in setbacks.
16. Facility Nuisances. The subject property shall not be unsafe, unsightly or
poorly maintained. If Operator receives a nuisance violation from the City in
regard to any of these issues, Operator shall correct the violation within seven
(7) days or contact the City directly to negotiate a mutually agreeable timeline.
17. Beaches and Other Common Gathering Areas. Operator's use of the
beaches and /or other common or public gathering places for meetings, prayer,
conversation, or any other gatherings shall show due respect to non - resident
visitors, residents, and /or other beachgoers, thus allowing them to take full
enjoyment of the beach and /or other common or public gathering places.
Operator shall not conduct business on the beach and /or other common or
public gathering places (per NBMC 10.08.030).
18. 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
encouragement of 12 -Step meetings or counseling). Operator shall ensure that
any client or resident removed from Operator's program or facility has the
resources necessary to return home.
19. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance of this reasonable accommodation shall not
constitute a waiver of the requirements of any federal, state or local law,
including the requirements of the California Building Code and Fire Code.
20. Compliance with Conditions. Operator shall comply with these conditions
during the conditional abatement period, which concludes on May 21, 2014,
for the lower unit and on July 31, 2014, for the upper unit.
MINE