HomeMy WebLinkAboutHO2009-009 Yellowstone Womens First Step-PegasusRESOLUTION NO. HO- 2009 -009
A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT
BEACH DENYING REASONABLE ACCOMMODATION NO. 2009 -06 TO
ALLOW RESIDENTS OF -AN EXISTING RESIDENTIAL CARE FACILITY
LOCATED AT 1571 PEGASUS STREET, NEWPORT BEACH, CALIFORNIA,
TO BE TREATED AS A SINGLE HOUSEKEEPING UNIT (PA 2008 -107)
WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City Council
on January 22; 2008, following noticed public hearings; and
WHEREAS, the adoption of Ordinance No. 2008 -05 amended the City of Newport
Beach's Municipal Code (NBMC) relating to Group Residential Uses; and
WHEREAS, Ordinance No. 2008 -05 added Chapter 20.98 to the NBMC. Chapter
20.98 sets forth a process to provide reasonable accommodations in the City's zoning and
land use regulations, policies, and practices when needed to provide an individual with a
disability an equal opportunity to use and enjoy a dwelling; and
WHEREAS, an application was filed by Yellowstone Women's First Step House, Inc.,
with respect to property located at 1571 Pegasus Street, and legally described as Lot 8, Tract
4307 in the City of Newport Beach, County of Orange, State of California (APN 119 - 361 -14),
as per map recorded in Book 153, Pages 18 -20 of Miscellaneous Maps, requesting approval
of a Reasonable Accommodation for the residents of the facility to be treated as a Single
Housekeeping Unit as defined in Section 20.03.030 of the Newport Beach Municipal Code
(NBMC); and
WHEREAS, a public hearing was held on February 20, 2009 in the City Hail Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and
purpose of the meeting was given in accordance with the Municipal Code. Evidence, both
written and oral, was presented and considered at this meeting and the hearing was
continued to March 12, 2009 for action on the resolutions and where the public hearing was
reopened to receive additional evidence, both written and oral from the applicant, staff and
the public; and
WHEREAS, both hearings were presided over by Thomas W. Allen, Hearing Officer
for the City of Newport Beach; and
WHEREAS, pursuant to Section 20.98.025(8) of the NBMC, the written decision to
approve, conditionally approve, or deny a request for reasonable accommodation shall be
based on the following findings, all of which are required for approval.
1. Finding: That 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: The applicant submitted a written statement that every
resident of the facility is in recovery from alcohol addiction. Federal regulations and
case law have defined recovery from alcoholism and drug addiction as a disability,
City of Newport Beach
Hearing Officer Resolution
(1571 Pegasus Street)
(Reasonable Accommodation No. 2009 -06)
Page 2 of 7
because it is a physical or mental condition that substantially impairs one or more
major daily life activities.
2. Finding: That 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: The exemption requested by the applicant is
unnecessarily broad to achieve the goal of providing disabled housing. The request to
be considered a Single Housekeeping Unit is essentially a request to be exempted
from all of the provisions of Ordinance No. 2008 -05 which place any sort of reasonable
regulation on the operations of residential care facilities. This is not necessary,
because there are many more narrowly tailored accommodations that could enable
facility residents to enjoy the housing of their choice without depriving the surrounding
neighborhood of reasonable conditions that mitigate any adverse secondary impacts
that emanate from this facility.
The applicant's counsel asserts in a letter dated January 29, 2009 that being treated
as a Single Housekeeping Unit is necessary "because the Property is not transient or
institutional in nature such that it fits the definition of a non - licensed residential care
facility." Even if the facility were not transient or institutional in nature, and did not
clearly fit the definition of a sober living home, or unlicensed residential care facility, an
exemption from the provisions of Ordinance No. 2008 -05 is not necessary to afford its
residents the opportunity to live in and enjoy a dwelling.
However, the applicant raised the issue of how the facility should be characterized in
its necessity argument, and asserted the facility more closely resembles a Single
Housekeeping Unit than any other type of residential use. Staff analyzed the
facility's appropriate use classification based on the applicant's submitted materials.
The nature of applicant's facility operations, as reported in the original application for
reasonable accommodation submitted in May 2008, closely resembles a boarding
house use. But for the fact residents are recovering alcoholics, the facility would be
classified as a prohibited Group Residential use, or a Boarding or Rooming House as
that term is defined in NBMC 20.05.030. (Residential Use Classifications) ( "A
residence or dwelling unit, or part thereof, wherein a room or rooms are rented under
two or more separate written or oral rental agreements, leases or subleases or
combination thereof ... ")
The applicant's May 2008 application for reasonable accommodation states, "The
residents at the property reside separately at the property and interact within the
property. There is individual use of common areas. The residents are responsible for
their own meals, expenses and chores. Each individual resides at the property subject
to a separate contractual arrangement with the applicant."
City of Newport Beach
Hearing Officer Resolution
(1571 Pegasus Street)
(Reasonable Accommodation No. 2009 -06)
Paae 3 of 7
Dr. Anna Thames, CEO of Yellowtstone, has also stated that the facility has no written
leases with any of the residents. Rental agreements with residents are verbal. Again,
the description of operations is much closer to the NBMC's definition of a boarding
house or group residential use than a Single Housekeeping Unit, as the NBMC's
definition of Single Housekeeping Unit requires dwellings rented to bona fide Single
Housekeeping Units to be occupied under a single written lease.
The self- reported pattern of facility operations and resident interaction in no way
resembles the NBMC definition of a Single Housekeeping Unit. NBMC Section
20.03.030 (Definitions) defines a Single Housekeeping Unit as: "The functional
equivalent of a traditional family, whose members are an interactive group of persons
jointly occupying a single dwelling unit, including the joint use of and responsibility for
common areas, and sharing household activities and responsibilities such as meals,
chores, household maintenance, and expenses, and where, if the unit is rented, all
adult residents have chosen to jointly occupy the entire premises of the dwelling unit,
under a single written lease with joint use and responsibility for the premises, and the
makeup of the household occupying the unit is determined by the residents of the unit
rather than the landlord or property manager."
Applicant's resident clients may be an interactive group of persons jointly occupying a
single dwelling unit who share common areas, but the applicant's own submittals
indicate there is no joint responsibility for meals or expenses, no single written lease
(or any written leases at all), and the makeup of the household is determined by the
applicant rather than the residents.
NBMC Section 20.98.025(C) allows the City to consider the following factors in determining
whether the requested accommodation is necessary to provide the disabled individual an
equal opportunity to use and enjoy a dwelling:
A. Whether the requested accommodation will affirmatively enhance the quality of
life of one or more individuals with a disability.
If the requested accommodation is granted, any number of the applicant's
current and potential clients will be able to live in a home in a single- family zone
with other recovering alcoholics. This is a situation that can affirmatively
enhance the quality of life of a person in recovery from addiction, unless
overcrowding of the facility or institutionalization of the neighborhood interferes
with the residents' re- integration into society. The applicant's sliding scale of
rental rates offers a sober living environment to residents who might not
otherwise be able to afford to live in a single- family home in this area.
City of Newport Beach
Hearing Officer Resolution
(1571 Pegasus Street)
(Reasonable Accommodation No. 2009 -06)
Page 4 of 7
B. Whether the individual or individuals with a disability will be denied an equal
opportunity to enjoy the housing type of their choice absent the
accommodation.
The exemption requested by the applicant is broader than necessary to achieve
the goal of enabling disabled individuals an equal opportunity to enjoy the
housing type of their choice. There are more narrowly tailored exemptions that
could enable disabled individuals to reside at the applicant's facility.
C. In the case of a residential care facility, whether the requested accommodation
is necessary to make facilities of a similar nature or operation economically
viable in light of the particularities of the relevant market and market
participants. ,
The applicant does not state why being treated as a Single Housekeeping Unit
is necessary to make its facilities viable in light of the current market for the type
of services it provides. The applicant states that each facility requires 15
residents in order to be financially viable, and provides a general summary of
average income and expenses for all four facilities. The evidence presented
does not lead to the conclusion that being treated as a Single Housekeeping
Unit is necessary to make applicant's facilities financially viable.
D. In the case of a residential care facility, whether the existing supply of facilities
of a similar nature and operation in the community is sufficient to provide
individuals with a disability an equal opportunity to live in a residential setting.
In 2007, the City estimated that there were more than 315 sober living beds in
the city (these are exclusive of the up to 213 ADP - licensed treatment beds).
These numbers were compiled before applicant's facilities, with a total of 58
sober living and eight staff beds, were added to the city's supply. Operators of
many sober living facilities within the city have reported decreased census and
vacant beds, which could provide potential Yellowstone clients with an equal
opportunity to live in a sober living environment without granting the
accommodation. A recent agreement with Sober Living by the Sea, Inc.,
authorized SLBTS to provide up to 204 beds citywide. Many of these alternate
sober living beds are probably not offered on a sliding fee scale based on ability
to pay. However, evidence does not support the applicant's contention that
treating residents of its facility as a Single Housekeeping Unit will change the
availability of the existing supply of facilities of a similar nature, or afford them a
substantially greater access to an equal opportunity to live in a residential
setting.
Based on the foregoing analysis, the finding of necessity cannot be made in
that the request is unnecessarily broad, the unit does not operate as the
City of Newport Beach
Hearing Officer Resolution
(1571 Pegasus Street)
(Reasonable Accommodation No. 2009 -06)
Page 5 of 7
functional equivalent of a single family unit, and the unit does not otherwise
meet the criteria of a Single Housekeeping unit.
Even when an applicant can demonstrate necessity, the City is not required to grant a
request for accommodation that is not reasonable. Cities may find a requested
accommodation unreasonable if it either (1) imposes an undue financial or
administrative burden on the city, or (2) results in a fundamental alteration in the
nature of a city program, often described as undermining "the basic purpose which the
requirement seeks to achieve."
3. Finding: 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 in support of finding: Treating the facility as a Single Housekeeping Unit would
not impose a currently identifiable undue financial or administrative burden on the City.
If this reasonable accommodation request were granted for all four Yellowstone
facilities, the applicant would be able to house a number of residents far in excess of
the 66 individuals currently residing in the four homes. Currently unidentifiable financial
or administrative burdens could arise as a result.
4. Finding: That the requested accommodation will not result in a fundamental
alteration in the nature of the City's zoning program, as "fundamental alteration"
is defined in Fair Housing Laws and interpretive case law.
Facts do not support the finding: The purpose of the NBMC's definition of Single
Housekeeping Unit is to allow the determination of whether groups of related or
unrelated individuals are living together in a dwelling as a single housekeeping unit.
This definition is necessary because of the persistent attempts by landlords to
establish illegal boarding houses, and illegal dwelling units in dwellings within the City.
Groups living as a single housekeeping unit can live together in any residential zone in
Newport Beach. Groups not living as a single housekeeping unit are prohibited from
establishing residences in any of the City's residential zones. There is an important
exception to the total prohibition of groups not living as a single housekeeping unit --
groups not living as a single housekeeping unit in residential care facilities of any size.
All residential care facilities in the City have received a reasonable accommodation
from the NBMC's restrictions on groups not living as a single housekeeping unit. The
NBMC provides many opportunities for new facilities to establish, and has provisions
for existing facilities to continue in their current locations with appropriate impact
residential zone of the City.
City of Newport Beach
Hearing Officer Resolution
(1571 Pegasus Street)
(Reasonable Accommodation No. 2009 -06)
Page6of7
The NBMC's Zoning Code also applies regulations to unlicensed and larger (more
than seven residents) licensed facilities. These regulations are in place to ensure that
the fundamental purposes of the Zoning Code can be achieved, and so the adverse
secondary impacts higher density residential care facilities have on the surrounding
neighborhood can be mitigated.
Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following
factors in determining whether the requested accommodation would require a fundamental
alteration in the nature of the City's zoning program:
A. Whether the requested accommodation would fundamentally alter the character
of the neighborhood.
There were numerous letters, emails and phone calls from neighbors of the
facilities that reported increasing negative secondary impacts on the
neighborhood as more of the applicant's facilities established there in recent
years. The impacts reported include: family and other visitors to the facilities;
litter in the neighborhood which complainants attribute to the applicant's
facilities, including cigarette butts, soda cans, and beer cans and bottles; facility
residents traveling in groups between one facility and the others; meetings held
regularly at one or more of the applicant's facilities, with outside attendees;
excessive use of on- street parking by facility residents and their guests.
B. Whether the accommodation would result in a substantial increase in traffic or
insufficient parking.
Parking - The enclosed garage spaces and driveway parking spaces would
allow for the staff vehicles to be accommodated without impacting
neighborhood parking.
Traffic and Generated Trips - The Institute of Transportation Engineers (ITE)
establishes and publishes standards for trip generation rates based on the use
classification of a site. in the case of a single family dwelling, the standard trip
rate is based on 9.57 average daily trips per dwelling. Trip rates for residential
care facilities are based on 2.74 average daily trips per each occupied bed.
Based on these standards, an 18 -bed residential care facility is estimated to
generate approximately 49.32 average daily trips. Applying this formula, the
facility will generate average daily trips substantially in excess of surrounding
single family dwellings. If the facility's bed count is reduced to the 13 beds
permitted under the use permit operating standards of NBMC Chapter
20.91A.050, the facility could generate approximately 35.62 average daily trips.
City of Newport Beach
Hearing Officer Resolution
(1571 Pegasus Street)
(Reasonable Accommodation No. 2009 -06)
Page 7 of 8
5. Finding: That 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 finding: 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 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.
WHEREAS, to approve a request for Reasonable Accommodation all five required
findings contained Section 20.98.025(6) of the NBMC must be made; and
WHEREAS, specifically, findings Nos. 2 and 4 of Section 20.98.025(B) of the NBMC
cannot be made; and
WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section 15301
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
NOW THEREFORE, BE IT RESOLVED:
Section 1. The Hearing Officer of the City of Newport Beach hereby denies with prejudice
Reasonable Accommodation No. 2009 -06, Request No. 1, that the residents of the facility be
treated as a single housekeeping unit as defined in Section 20.03.030 of the Newport Beach
Municipal Code (NBMC).
Section 2. This action shall become final and effective fourteen 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.
City of Newport Beach
Hearing Officer Resolution
(1571 Pegasus Street)
(Reasonable Accommodation No. 2009 -06)
Paqe 8 of 8
PASSED, APPROVED AND ADOPTED THIS l_Iih DAY OF A zjL-W
ATTEST:
r�
City Clerk
By:
Thomas W. Allen, Hearing Officer