HomeMy WebLinkAboutHO2009-020 Pacific Shores PropertiesRESOLUTION NO. HO- 2009 -020
A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT
BEACH DENYING WITH PREJUDICE REQUEST NO. 4 OF A REQUEST FOR
REASONABLE ACCOMMODATION NO. 2008 -001 FOR AN EXISTING SOBER
LIVING FACILITY LOCATED AT 3309 CLAY STREET, 492 ORANGE
AVENUE, AND 492 % ORANGE AVENUE (PA 2008 -181).
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 Pacific Shores Properties; with respect to
properties located at 3309 Clay Street, 492 Orange Avenue, and 492 'h Orange Avenue, and
legally described as Lot 2 and Lot 1 in Block 6 of Tract No. 27 in the City of Newport Beach,
County of Orange, State of California (APN 425 - 282 -02 and 425 - 282 -01), requesting approval
of the following five requests for reasonable accommodation:
1. That residents of its facility at 3309 Clay Street, 492 Orange Avenue and 492 '/2
Orange Avenue be treated as a single housekeeping unit as defined in Section
20.03.030 of the Newport Beach Municipal Code;
2. That the City no longer classify or treat the properties at 3309 Clay Street, 492 Orange
Avenue and 492 '/2 Orange Avenue as "Residential Care Facilities," as defined by
NBMC Section 20.05.014;
3. That the City classify the use of the dwellings at 3309 Clay Street, 492 Orange Avenue
and 492 '/z Orange Avenue as a legal nonconforming use;
4. That all code provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue
and 492'/ Orange Avenue (including Zoning Code, Building Code, fire safety and any
other applicable code) be applied to those properties in the same manner that those
codes are applied and enforced to single family and two family residential uses located
in residential districts zoned R -2; and
5. That the City waive the requirement of NBMC Section 20.91A.020 that unlicensed
residential care facilities may be located only in a residential district zoned MFR with a
use permit.
WHEREAS, a public hearing was held on March 25, 2009, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and
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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
WHEREAS, the hearing was 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 findings, all of which are required for approval.
WHEREAS, with respect to Reasonable Accommodation Request No. 4, that all code
provisions applicable to the use of 3309 Clay Street, 492 Orange Avenue and 492 '/2 Orange
Avenue, including Zoning Code, Building Code, fire safety and any other applicable code, be
applied to those properties in the same manner that those codes are applied and enforced to
single family and two family residential uses located in residential districts zoned R -2, not all
of the five findings required can be made pursuant to Section 20.98.025 (B) of the NBMC, as
follows:
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 has provided a signed statement certifying that all
residents of the facility, excluding staff, are individuals in recovery from alcoholism or drug
addiction. Federal regulations classify such individuals as disabled.
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 Hearing Officer has determined that the requested
accommodation is not necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling. The Newport Beach Fire Marshal has indicated that
the changes needed for the facility to comply with the California Building Code can be
achieved and are not cost prohibitive.
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.
In light of the improvements necessary to bring the facility into compliance with the
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California Building Code, the granting of the accommodation to waive the
requirements of the California Building Code would place the life of the facility's
residents at greater risk, thereby negatively affecting the quality of life of one or more
individuals with a disability.
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 Hearing Officer finds that denying the accommodation will not deprive facility
residents an opportunity to enjoy the housing type of their choice, assuming the facility
residents have an interest in residing in a safe environment.
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 did not presented evidence that bringing the facility into compliance with
the California Building Code requirements for R4 occupancies would be financially
infeasible or that the facility will not be economically viable as a result of compliance
with the California Building Code.
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.
Through implementation of Ordinance No. 2008 -005, it is estimated approximately 233
sober living beds have been approved within the City. Most of these beds are in
facilities that have similar population density or less population density than the
applicant's facility. As operators of other sober living facilities have reported
decreased occupancy levels, prospective residents seeking a sober living environment
of this type will not be deprived of an equal opportunity to live in a residential setting of
similar type.
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. Granting the requested accommodation would not impose an
undue financial or administrative burden on the City. Treating the facility as a single family
residential use would not impose a currently identifiable undue financial or administrative
burden on the City, however, this finding is made with an acknowledgment of the history of
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code violations by the applicant. Plans on file with the City indicate that approximately 56 to
58 individuals could be housed at the three facilities if some rooms not labeled as "bedrooms"
on plans were used as bedrooms. If resident populations were unregulated, and code
violations continued, 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 a City program, as "fundamental alteration" is defined
in Fair Housing Laws and interpretive case law.
Facts do not support the finding. The State Fire Marshal made the determination that
residential care occupancies with more than six residents have characteristics that require a
degree of extra protection for their residents. Requirements for sprinklers, adequate egress,
fire alarm pull stations and smoke alarms were adopted to provide a greater degree of life
safety protection for a population of disabled individuals who live together. The Hearing
Officer has determined that waiving such requirements would result in a fundamental
alteration of the California Building Code because it undermines the basic purpose the
California Building Code's life safety protections.
According to the current 2007 California Building Code, facilities such as the applicant's are
considered as R4 occupancies. The California Building Code requires extra protection for R4
occupancies in recognition of the fact that the same disabilities that require federal fair
housing protection may also impact or impede the disabled individual's ability to safely and
quickly exit a building during a fire. The Hearing Officer has determined that waiving required
life safety protections. for residents of the facility would fundamentally undermine the basic
resident safety standards the California Building Code seeks to achieve.
Granting the accommodation would also place neighboring properties at risk. The 2007
California Building Code requires that R4 occupancies have commercial sprinkler systems
installed rather than residential sprinkler systems. Residential sprinklers are intended to
protect the occupants of a residence and give them sufficient time to evacuate a building.
Commercial sprinklers are intended to extinguish a fire and prevent it from spreading to other
structures. The Hearing Officer has determined that waiving this requirement would
undermine the basic purpose to provide fire protection to neighboring properties that the
regulation seeks to achieve.
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.
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B. Whether the accommodation would result in a substantial increase in traffic or
insufficient parking.
C. Whether granting the requested accommodation would substantially undermine
any express purpose of either the City's General Plan or an applicable Specific
Plan.
D. In the case of a residential care facility, whether the requested accommodation
would create an institutionalized environment due to the number of and
distance between facilities that are similar in nature or operation.
These factors pertain to Zoning Code issues rather than California Building Code
issues; and therefore, were not analyzed as part of this request. These factors were
analyzed in the applicant's Reasonable Accommodation Request No. 1, which was to
apply the Zoning Code provisions to the properties in the same manner as a single
housekeeping unit as defined in NBMC Section 20.03.030, and Request No. 2, which
was to not treat or classify the properties as "Residential Care Facilities" as defined by
NBMC Section 20.05.010.
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 do not support the finding. Many of the California Building Code requirements,
including the requirement for commercial sprinkler systems, were adopted to protect
neighboring structures as much as facility residents. The Hearing Officer finds that granting
the requested accommodation would result in a potential direct threat to the safety of
neighboring properties and could result in substantial physical damage to the property of
others.
WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section
(Section 15061(b)(3) (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 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 therefore it is not subject to CEQA.
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NOW THEREFORE, BE IT RESOLVED:
Section 1. The Hearing Officer of the City of Newport Beach hereby denies with prejudice
Request No. 4 of Reasonable Accommodation No. 2008 -001.
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.
PASSED, APPROVED AND ADOPTED THIS 2ND DAY OF JULY, 2009.
By:
Thomas W. Allen, Hearing Officer