Loading...
HomeMy WebLinkAbout05 - Supporting Restoring Local Authority in the Regulation of Group Residential Uses - CorrespondenceReceived after Agenda Printed September 27, 2022 Item No. 5 From: City Clerk"s Office To: Mulvey, Jennifer; Rieff, Kim Subject: FW: Comments re. City Council Agenda Item 5 - Council Session Sept. 27 2022 Date: September 26, 2022 2:29:42 PM From: Denys Oberman <dho@obermanassociates.com> Sent: Monday, September 26, 2022 2:29:30 PM (UTC-08:00) Pacific Time (US & Canada) To: Dept - City Council<CityCouncil@newportbeachca.gov>; City Clerk's Office <CityClerk@newportbeachca.gov>; Leung, Grace <gleung@newportbeachca.gov> Cc: Laura Curran <lauracurran@me.com>; william lyon <ablyon@sbcglobal.net>; Lynette Luis <lynette_luis@dell.com>; Erica Keane <ericaakeane@gmail.com>; Steve Fusswinkel <sfusswinkell@gmail.com>; dho@obermanassociates.com <dho@obermanassociates.com> Subject: FW: Comments re. City Council Agenda Item 5 - Council Session Sept. 27 2022 [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. To City Council and City Clerk: I am hereby Recalling my prior correspondence, and replacing it with the Comments below, which include a minor edit. Please confirm receipt. Thank you, Denys Oberman Regards, Denys H. Oberman, CEO 110BERMAN Sftcdogr and FVKmc" hd+«sors OBERMAN Strategy and Financial Advisors 19200 Von Karman Avenue, 6th Floor Irvine, CA 92612 Tel (949) 476-0790 Cell (949) 230-5868 Fax (949) 752-8935 Email: dho e_obermanassociates.com CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error, please notify us immediately at 949/476-0790 or the electronic address above, to arrange for the return of the document(s) to us. From: Denys Oberman <dho(@obermanassociates.com> Sent: Monday, September 26, 2022 2:23 PM To: Denys Oberman <dho(@obermanassociates.com> Subject: RE: Comments re. City Council Agenda Item 5 - Council Session Sept. 27 2022 Regards, Denys H. Oberman, CEO flOBERMAN SIV00W pry FVXVVc,ai dviunr OBERMAN Strategy and Financial Advisors 19200 Von Karman Avenue, 6th Floor Irvine, CA 92612 Tel (949) 476-0790 Cell (949) 230-5868 Fax (949) 752-8935 Email: dhoQobermanassociates.com CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error, please notify us immediately at 949/476-0790 or the electronic address above, to arrange for the return of the document(s) to us. From: Denys Oberman <dhoCcDobermanassociates.com> Sent: Monday, September 26, 2022 2:17 PM To: CityCouncilCcDnewportbeachca.gov; cityclerk(@newportbeachca.gov; gleung(@newportbeachca.gov Cc: Laura Curran <lauracurran(@me.com>; Lynette Luis <Ivnette_luisccDdell.com>,- Erica Keane <ericaakeane(@gmail.com>; william lyon <ablyonPsbcglobal.net>; Steve Fusswinkel <sfusswinkeI1(@gmail.com>; dhoCcDobermanassociates.com; Fred Levine <fredric.mark.levine��mail.com> Subject: Comments re. City Council Agenda Item 5 - Council Session Sept. 27 2022 PLEASE DISTRIBUTE TO THE CITY COUNCIL MEMBERS AND THE PUBLIC, AND ENTER INTO THE PUBLIC RECORD. Mayor and Members of the City Council: I am submitting this comment in connection with the proposed Resolution No. 2022-84 Supporting Restoring Local Authority in the Regulation of Group Residential Uses, before the City Council on Sept. 27,2022, Session Agenda Item #5. Our comments are below: 1. We appreciate that the City Council expresses commitment to,, call on the State of California to Increase its Oversight and Enforcement of Residential Care facilities. 2. We take exception and object to the proposed position that, the City can do nothing to regulate state licensed and unlicensed residential care businesses of any size that are , Integral Facilities/Integral Uses. The City has Ordinances on the books which provide definitions for, and ability to regulate Integral Facilities /integral Uses. These ordinances are applicable to state licensed and unlicensed facilities that are operating in an Integral manner. There are no published Court orders which preclude the application and enforcement of Integral facilities to the City of Newport Beach . City staff and representatives persist in erroneously referred to "Judge Selna's 2008 order " as reason that the City cannot enforce its Ordinances pertaining to Integral Facilities. We object to these statements as inaccurate and misleading, based on the following: In 2008, the residential care and sober living facility business operator„ Sober Living by the Sea ( SLBTS) filed a lawsuit against the City of Newport Beach. During the course of this proceeding,in 2008 the presiding Judge Selna issued a temporary order of injunction staying the City's ability to actively enforce the provision of its 2008 05 Ordinances pertaining to,lntegral facilities. In late 2008/early 2009, Sober Living by the Sea and the City of Newport Beach negotiated settlement of this lawsuit. As part of the Settlement, SLBTS agreed to "dismiss the Action in its entirety without prejudice", and to "dismiss or abandon without prejudice the appeal taken from the order partially granting and partially denying Sober Living's motion for a preliminary injunction,and... affirmatively request that HUD and the U.S. Dept of Justice take no further action based upon the HUD Complaint. ( excerpt taken from Settlement and Release , List of Agreements and Related Document of April 2009 ) It was agreed that the Dismissal of the case would be completed and effective at such time as the City passed ordinance including, Zoning Implementation and Public Benefit5 Agreement memorializing specific terms of the Settlement including provisions for SLBTS' continued business operation in the City. This Ordinance was passed by the City In April, 2009, and action was taken to dismiss the case SLBTS v. City of Newport Beach. Stipulations were filed with the Court to dismiss the case in its entirety on October 23, 2009. Orders confirming dismissal and termination of the case in its entirety were filed by the Court and entered on October 29,2009. ( ref, Court docs. #89. 8.08-cv-0200 JVS-RNB). The case was dismissed and terminated in its entirety. There is no Court action any longer which prevents the City from enforcing its Ordinances re. group residential uses, which include provisions regarding Integral facilities/integral uses. The Agreements pertaining to the above- reference settlement and dismissal of lawsuits and Court actions are all matters of public record. Documents are readily available in the public domain and through the Court. The City CAN regulate its residential care and sober living business uses. It CAN regulate the Integral facilities provisions as defined in its current Ordinances. The City has CHOSEN NOT TO REGULATE THESE USES. It would appear, with the proposed Resolution, and the statement of City Atty in City meeting of August 23, 2022 that the City "can, but chooses not to, enforce its ordinances"( Ref. meeting video). It would appear that the City is defaulting its duty to protect the health and safety of those seeking recovery assistance from business operators, as well as other residents in the community ---- is the City punting to the State, and wrongfully disclaiming responsibility and ability to act pursuant to its Ordinances... at adverse impact to the health and safety of addicts in facilities seeking recovery assistance, and the residents and community at large. We request that the City Council direct staff to : 1. Modify the proposed Resolution to reflect its action towards the State regarding its regulatory and enforcement responsibilities; and, 2. immediately, recognize and actively enforce its current Ordinances on the book, including provisions applicable to Integral facilities/integral uses, and including Operators not complying with local or state law. Thank you. Denys Oberman, Resident of Newport Beach Cc: members of Newport Beach ad hoc committee, members of Concerned Citizens of Newport Beach , various other stakeholders at interest (Note: please disregard the parties and notices, below as those are not relevant to this matter). Regards, Denys H. Oberman, CEO flOBERMAN Slvcdogy prod VXVnc"i Advkuns OBERMAN Strategy and Financial Advisors 19200 Von Karman Avenue, 6th Floor Irvine, CA 92612 Tel (949) 476-0790 Cell (949) 230-5868 Fax (949) 752-8935 Email: dhoe-obermanassociates.com CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error, please notify us immediately at 949/476-0790 or the electronic address above, to arrange for the return of the document(s) to us. Received after Agenda Printed September 27, 2022 Mulvey, Jennifer Item No. 5 Subject: FW: For Council meeting - Drug and alcohol group homes From: Laura Curran <lauracurran@me.com> Sent: September 26, 2022 11:16 PM To: Dept - City Council <CityCouncil@newportbeachca.gov> Cc: Brown, Leilani <LBrown@newportbeachca.gov> Subject: For Council meeting - Drug and alcohol group homes City Council Thank you for putting forward a resolution to express support to state legislators for cities Iln their efforts to enforce existing regulations related to Drug and Alcohol group homes and address the impacts on cities and neighborhoods. Efforts to address the issues are always welcome. However the resolution as stated is superficial and misses the real challenges that we have faced in Newport Beach over the last 16 years. We need the city to enforce the existing laws, and vigorously assert with the state Agencies, State Auditor, and the State Attorney General regarding existing violations of Drug and alcohol group home legislation legislation. 1. Aaron Harp, City Attorney has refused to enforce existing regulations currently in place related to group homes. For example in the August 23, 2022 study session he stated that if an drug home operator is operating without a license he will not cite them or close them down, because "they'll probably get a license in 30 days anyway. " 2. City attorney has refused to enforce regulations at the city level, or file actions with the state, Departnent of Health Care Services, when drug rehab operators violate the existing Regulations which prohibit integral facilities operating in R2 zones, in violation of the city's regulations. As a result operators which operated in violation of the Integral facilities Regulation II have been able to continue to operate. In several cases, facilities have later been cited for overcrowding, failure to supervise, and treating people who are not patients. 3. City staff and council have refused to pursue any assertive action with state or County agencies, telling residents " Department of Health Care Services doesn't respond." 4. Commitments to hire advisory firms with extensive experience and a strong track record, are still "in the works "after almost a year. Meanwhile Costa Mesa has successfully passed legislation related to group homes which has been affirmed by the Ninth Circuit Court of Appeals. The city shows tremendous skill in addressing issues such as the oil spill, regulations for Short term lodging, dredging, housing element, homelessness, and other issues. It is frustrating and confounding that on this issue the city staff and Council throw up their hands and say they are powerless. Thank you Laura Curran Received after Agenda Printed September 27, 2022 Item No. 5 From: City Clerk"s Office To: Mulvey, Jennifer; Rieff, Kim Subject: FW: City ordinance and enforcement of Integral facilities Date: September 27, 2022 9:21:47 AM Attachments: City of Costa Mesa SL1805.pdf City of Costa Mesa Letter 1897 orange Unit A.pdf From: Luis, Lynette <Lynette. Luis@dell.com > Sent: Tuesday, September 27, 2022 9:21:24 AM (UTC-08:00) Pacific Time (US & Canada) To: Dept - City Council<CityCouncil@newportbeachca.gov>; City Clerk's Office <CityClerk@newportbeachca.gov>; Leung, Grace <gleung@newportbeachca.gov> Cc: Laura Curran <lauracurran@me.com>; william lyon <ablyon@sbcglobal.net>; Erica Keane <ericaakeane@gmail.com>; Steve Fusswinkel <sfusswinkell@gmail.com>; Denys Oberman <dho@obermanassociates.com> Subject: City ordinance and enforcement of Integral facilities [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. FOR THE PUBLIC RECORD: ENFORCEMENT OF ORDINANCES RE INTEGRAL FACILITIES Mayor and Council Members: Thank you for recognizing that City enforcement of its Ordinances, including sections pertaining to Integral Facilities is very important --- Both to those individuals seeking treatment, and for maintaining the safety and integrity of our residential neighborhoods. It is within the control of the City to require that residential care business operators comply with all applicable local, county, and state regulations. The City seems reluctant to exercise its rights and protect the community. Please see the attached documents which reflect the City of Costa Mesa's ordinances, in particular as regard to Integral Facilities. Also, please see the City of Costa Mesa integral facility definition below. Reminder that the City of Costa Mesa's ordinances were upheld by the CA ninth circuit, and that the case associated with Judge Selna's temporary stay of Newport Beach's 2008 Ordinances was settled and dismissed by the Court in 2009. There is no reason why the City cannot enforce its Ordinances pertaining to state licensed and non - licensed businesses. Thank you. Lynette Luis Cc: all City of Costa Mesa definition of integral facilities: Integral facilities. Any combination of two or more group homes 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 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 in 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. Internal Use - Confidential CITY OF COSTA MESA P.O. BOX 1200 - 77 FAIR DRIVE - CALIFORNIA 92$28- DEVELOPMENT SERVICES DEPARTMENT January 10, 2019 SENT VIA UNITED STATES POSTAL SERVICE AND ELECTRONIC MAIL Brandon Stump The Ohio House, LLC 234 E. 17th Street Costa Mesa, CA 92627 RE: SPECIAL USE PERMIT NUMBER SL-18-05 2175 TUSTIN AVENUE, UNIT A, COSTA MESA NOTICE OF DENIAL Dear Mr. Stump: Thank you for submitting your application for the City of Costa Mesas Sober Living Home Special Use Permit (SUP) to operate a sober living home with six or fewer beds at 2175 Tustin, Unit A. The Development Services Department has thoroughly reviewed your application and related information found in the City's records. As you are aware from the letter from staff dated September 21, 2018, the facilities at 2175 Tustin, Unit A and 2175 Tustin, Unit B are considered integral facilities. This determination is made based upon the information on file for applications # SL-18-05 and # SL-18-06. The applications for the two units located on the same parcel show that Ohio House, LLC is the facility owner for each unit, both of which include the same set of house rules and the same house manager. Costa Mesa Municipal Code (CMMC) section 13-6 defines integral facilities and uses as: Integral facilities. Any combination of two (2) or more group homes 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 (1) operation shall be referred to as integral facilities and shall be considered one (1) 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 (1) 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 (1) licensed or unlicensed facility. Integral uses. Any two (2) or more 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 in two (2) 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 (1) use for purposes of applying federal, state and local laws to its operation. Integral group home facilities are not permitted per CMMC 13-311(a)(7). Further, because integral uses are considered one use under the CMMC, this use would require one CUP, not individual SUPs. Therefore, pursuant to CMMC 13-311(b), your application is DENIED based on a determination that it is for an integral facility and/or use which is not permitted pursuant to the City's requirements for group homes with six or fewer beds in an R2-MD Zone. This DENIAL can be appealed to the Planning Commission by filing an application for appeal with the City Clerk. Any appeal must be filed within seven (7) days of this date of denial, which is January 17, 2019, by 5:00 p.m., pursuant to CMMC Sections 2-305(2) and 2- 307. A fee of $3,825.00 must accompany the application. In your request for an appeal, please summarize the reasons for the appeal. If the application for appeal is not submitted by the deadline, your time to appeal will have expired. Should you have any questions, please do not hesitate to call Katie Angel at 714.754.5618 between the hours of 8:00 a.m. and 5:00 p.m. Bart' Burts, AICP Economic and Development Services Director cc: Jennifer Le, Assistant Development Services Director Fidel Gamboa, Community Improvement Manager Willa Bouwens-Killeen, AICP, Zoning Administrator Katie Angel, Management Analyst CITY OF COSTA MESA P.O. BOX 1200 - 77 FAIR DRIVE - CALIFORNIA 92628' DEVELOPMENT SERVICES DEPARTMENT January 24, 2019 SENT VIA UNITED STATES POSTAL SERVICE AND ELECTRONIC MAIL Kathryn Nurmberg LEAD Recovery Transitional Living Center, LLC 3151 Airway Avenue, F107 Costa Mesa, CA 92626 RE: SPECIAL USE PERMIT NUMBER SL-16-10 1897 ORANGE AVENUE, UNIT A, COSTA MESA NOTICE OF DENIAL Dear Ms. Nurmberg: Thank you for submitting your application for the City of Costa Mesa's Sober Living Home Special Use Permit (SUP) to operate a sober living home with six or fewer beds at 1897 Orange Avenue, Unit A under LEAD Recovery Transitional Living Center, LLC. The Development Services Department has thoroughly reviewed your application and related information found in the City's records. Your application is denied pursuant to City of Costa Mesa Municipal Code (CMMC) requirements for group homes with six or fewer beds in a R2-HD Zone. CMMC section 13- 311(b)(6) provides in relevant part that a special use permit for a sober living home shall also be denied upon a determination by the director under the following circumstance: iii_ The sober living home, as measured by the closest property lines, is located within six hundred fifty (650) feet of any other sober living home or state licensed alcoholism or drug abuse recovery or treatment facility. If a state licensed alcoholism or drug abuse recovery or treatment facility moves within six hundred fifty (650) feet of an existing sober living home this shall not cause the revocation of the sober living home's permit or be grounds for denying a transfer of such permit. Staff found that LEAD Recovery Transition Living Center, LLC is also currently operating a state licensed residential detoxification facility at 1897 Orange Avenue, Unit B located on the same parcel and within 650 feet of the subject sober living home listed in SUP application # SL-16-10. Although the application is denied due to the separation conflict between the two facilities, it also appears as though the facilities may be operating as integral facilities. Costa Mesa Municipal Code (CMMC) section 13-6 defines integral facilities and uses as: Integral facilities. Any combination of two (2) or more group homes 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 (1) operation shall be referred to as integral facilities and shall be considered one (1) 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 (1) 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 (1) licensed or unlicensed facility. Integral uses. Any two (2) or more 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 in two (2) 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 (1) use for purposes of applying federal, state and local laws to its operation. Integral group home facilities are not permitted per CMMC 13-311(a)(7). Because integral uses are considered one use under the CMMC, a Conditional Use Permit would be required to operate a facility with seven or more residents. This DENIAL can be appealed to the Planning Commission by filing an application for appeal with the City Clerk. Any appeal must be filed within seven (7) days of this date of denial, which is January 31, 2019, by 5:00 p.m., pursuant to CMMC Sections 2-305(2) and 2-307. A fee of $3,825.00 must accompany the application. In your request for an appeal, please summarize the reasons for the appeal. If the application for appeal is not submitted by the deadline, your time to appeal will have expired. Should you have any questions, please do not hesitate to call Katie Angel at 714.754.5618 between the hours of 8:00 a.m. and 5:00 o.m. CID Economic and Development Services Director cc: Jennifer Le, Assistant Development Services Director Fidel Gamboa, Community Improvement Manager Willa Bouwens-Killeen, AICP, Zoning Administrator Katie Angel, Management Analyst