HomeMy WebLinkAbout08/23/2007"Planning Commission Minutes 08/23/2007
CITY OF NEWPORT BEACH
Planning Commission Minutes
August 23, 2007
Regular Meeting - 6:30 p.m.
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INDEX
ROLL CALL
Commissioners Eaton, Peotter, Cole, Hawkins, McDaniel, Toerge and
Hillgren:
II Commissioners were present.
STAFF PRESENT:
David Lepo, Planning Director
aron Harp, Assistant City Attorney
City Counsel Barbara Kautz, Esquire of Goldfarb and Lipman, LLP
ity Counsel Polly Marshall, Esquire of Goldfarb and Lipman, LLP
Patrick Alford, Senior Planner
Ginger Varin, Planning Commission Secretary and Administrative Assistant
PUBLIC COMMENTS:
PUBLIC
COMMENTS
None
None
POSTING OF THE AGENDA:
POSTING OF
THE AGENDA
The Planning Commission Agenda was posted on August 17, 2007.
HEARING ITEMS
SUBJECT: MINUTES of the regular meeting of August 9, 2007.
ITEM NO. 1
Motion was made by Commissioner McDaniel and seconded by
Approved
Commissioner Toerge to approve the minutes as corrected.
Ayes:
Eaton, Peotter, Hawkins, McDaniel, Toerge and Hillgren
Noes:
None
Abstain:
Cole
SUBJECT: Code Amendment 2007 -005 (PA2007 -112)
ITEM NO.2
PA2007 -112
Proposed amendment of Title 20 (Zoning Code) of the Newport Beach
Continued to
Municipal Code to revise definitions, land use classifications, and
September 20,
regulations relating to group occupancies and short-term lodgings.
2007
Mr. Lepo noted this issue had been heard and continued from the Planning
Commission meeting of June 21st. At that time representatives o
Concerned Citizens of Newport Beach presented a list of issues that the
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Auld like the Commission to consider in any proposed ordinan
dressing group occupancies. The Planning Commission directed staff
view the list of issues and revise the ordinance accordingly wherever t
lal staff and consultants felt were legal and acceptable. If there WE
lal issues that prevented those issues being included, staff was
wide a report. The draft ordinance has been revised wherever possit
reflect those issues.
Alford noted the following overview of the proposed Code changes
t was submitted in June and revisions made to date:
Adds specific and detailed land use classifications for grot
occupancies to maximize land use control consistent with State ai
Federal laws;
Residential Care, Limited will be replaced with two new u:
classifications - Residential Care Facilities, Small Licensed that is
or fewer persons with disabilities and must be continued to I
permitted by right in residential districts per State law, and;
Residential Care Facilities, Small Unlicensed - 6 or fewer persoi
with disabilities, requiring a use permit in R -1.5, R -2 and MF
Districts and the equivalents in Specific Plan (SP) Districts;
Residential Care Facility, General - covers 7 or more persons wi
disabilities, limited to the MFR Districts, the equivalent in Specil
Plan (SP) Districts and requires a use permit;
Group Residential - dormitories, fraternities and sororities w
continue to be prohibited in all residential districts except for tho:
serving the disabled persons;
Boarding House - a new land use classification and is prohibited
residential districts;
Parolee- Probationer Homes - a new land use classification and
prohibited in all districts;
Convalescent Homes and Hospitals will be prohibited in Residenti
Districts;
Vacation Home Rentals - a new land use classification is added
reflect existing short -term lodging permit regulations, continue to k
permitted in R -1.5, R -2 and MFR Districts; new rentals prohibited
single -unit districts since 2004, and that will continue; in the st<
report it was indicated 88 valid permits in single - family areas, tt
actual number is 118 and 30 of those are currently active;
In commercial districts public assembly is to be prohibited in We
Newport and Balboa Peninsula SP Districts such as clubs ar
lodges; no proposed changes to regulations on Religious Assemb
due to the protection under the Religious Land Use ar
Institutionalized Persons Act of 2000;
Business and professional office - services involving the assemb
or meetings of 7 or more persons are prohibited in West Newpc
and Balboa Peninsula SP Districts;
New definition of Integral Facilities - 2 or more Residential Cai
Facilities under the same control and management come undi
Residential Care, General use classification whether in sarr
building or different parcels, and are subject to use perry
requirements and other land use controls;
New Chapter 20.91A (Use Permits in Residential Districts) - appliE
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to all uses requiring use permits in residential districts and applies h
all uses such as bed and breakfast inns, day care, schools, etc.
intended to preserve the character of residential neighborhoods an(
include special application requirements, development an(
operational regulations, extended findings for approval, an(
provisions for over - concentration and separation such that the City
determines there are adequate facilities for any given use, we car
require that only one (1) such use be permitted on any block with ar
additional 75 -foot separation requirement;
New Reasonable Accommodation Chapter - sets procedures tc
provide reasonable accommodation in zoning regulations; provide,,
the disabled equal opportunity to use and enjoy a residence or avoic
discrimination on the basis of that disability; and, these request;
would be approved by the Zoning Administrator, unless part o
another discretionary permit;
Amortization and Abatement - nonconforming uses and structure:
legally established; illegal structures and uses are addressed under
20.96 (Enforcement); within 120 days the City must begin to identit
and inventory all nonconforming uses in residential districts; notice
will be sent to owners of property identified by the inventory
property owner will have 45 days to submit an application
demonstrating that the use is conforming; Planning Commission wil
hold public hearings to approve the inventory; the abatement perioc
is 2 years from the date of approval of the inventory and the
Planning Commission will consider applications for extensions;
Existing uses that are no longer permitted in the Residential Districl
will have to be discontinued;
Existing uses that require a use permit will have to apply for use
permits and applications can be approved, conditionally approved,
or denied; and, will be subject to current regulations and
requirements;
Non - conforming uses that relate to dwelling unit type will not be
subject to amortization and abatement.
Marshall, special counsel from Goldfarb and Lipman, noted:
proposed ordinance deals with the issue of non - residential uses i
iential zones. The goal is to have an ordinance that addresses th
imate issues that have been raised in a way that is not facial)
riminatory. For example, over - concentration is dealt with by dealin
all conditional uses in residential zones, understanding th',
iitioned uses tend to be for non - residential or quasi - residential in som
It applies to all conditional uses and doesn't just apply to residenti,
facilities. If the City already has enough of a particular use to meet
and, then a minimum standard must be met, which is no more tha
per block or 75 feet apart.
second standard also applies, for any conditional use the City must find
not altering the residential character of the neighborhood in order
prove it. We have tried to preserve the City's discretion to look on
se by case analysis to see what that particular use would do in th;
irticular location. If it would change the residential character, you ha%
broad discretion in a conditional use context. Another example take
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o not be facially discriminatory is with the abatement provisions. If a L
>ermit is required where it was not before required, a facility or a use woi
lave to apply for the use permit and that applies to any change in 1
! oning law. All uses would have to apply for a use permit. If a use
>rohibited, for example now you can have a small unlicensed group hoi
n a single family district, but if you pass this proposal, it is prohibited. "
he larger ones, you will only be allowed to have them in a mufti -fan
fistrict. If that is the case, or if they apply for a conditional use and they
fenied, then they will have to be abated and the use will have to
amortized. The ordinance does not say it only applies to residential c<
acilities, that is not the case, it applies to any conditional use, so it could
i private school. We did this because we are trying not to be facie
fiscriminatory in the ordinance.
iat is not in the ordinance that the citizens requested are registration ai
acing that only applies to residential care facilities. To do so, would I
;ially discriminatory. Facially discriminatory means that on its face, in ;
finance, treats protected groups of people, in this case, disabled peopl
ferently from other people. There are two kinds of discrimination, fac
discrimination as applied. As applied is when a law is neutral on its fai
t the people enforcing it discriminate by only going after a particular kii
people. The legal standard for facial discrimination, which is what we a
ing to avoid, is what would a court look at to say whether it is illegal
t. The case cited by Concerned Citizens (Familystyle case in St. PauQ
the 8th Circuit which governs that part of the country. This case had
acing requirement that applied to residences for people with meni
ess and there was a legitimate state interest of avoiding tl
titutionalization of these people and so it was upheld. We are in the 9
�cuit and in November 2006, there was a case called Community Hou.
City of Boise, and they explicitly rejected the legitimate state intere
mdard that was used by the 8th Circuit. They said in our Circuit, faci
;crimination is legal only if it benefits the disabled or addresses legitima
fety concerns. They went on to say it cannot be based on stereo -typo
subjective opinion, it must be based in individualized analysis of
rticular situation, the safety concerns. March 2007 there was a case o
Nevada on spacing requirements for residential care facilities. It cita
ise and said this is not legal. It was a spacing requirement that w;
opted by the State of Nevada and then adopted also by Clark Cour
d it was found to not be legal because it didn't meet one of the two tesl
litimate safety concerns or benefits to the disabled.
came up with a proposal that is not facially discriminatory. There
places in this ordinance where residential care facilities are sin
One is special standards for unlicensed 6 or under, and the sec
is the over - concentration standard. [She noted and explained the
that are part of the packet and in the record.]
e alternative proposals in the proposed ordinance, we rejected becau
concerns of facial discrimination as they go after just this one use tt
rves the disabled and there is no record of benefit. There is assertion
nefits but there needs to be evidence of why these things benefit. Th
somewhat over - reaching and you can't make an argument for benefit
disabled of spacing with parks or restaurants. Issues are so bro
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gad of dealing with the residential character of neighborhoods
ing with all conditional uses.
imissioner Peotter asked for an explanation of the aspect of d
abatement of a current use that did not have a conditional use
fuse it was not required originally.
Marshall noted there is a definition in the draft ordinance proposal.
ability is a protected class under the Fair Housing Act. All of thi;
lysis is a Fair Housing Act analysis. The Fair Housing Act wa:
mded to include disability and disability expressly includes addiction tc
fs or alcohol but excludes those currently using an illegal substance.
ple who are addicts but not current users are considered to bg
bled. Parolees are not a protected class. Any use that now requires :
nit would come in and apply for the permit. If it didn't have one befor(
was not required to have one before, they would be a non - conforming
and would be given a certain amount of time to apply for a permit. I
permit was denied they would have to be abated in a two -year period.
abatement is required in residential areas only.
explained the benefits of the comprehensive update of the
and city-wide rezoning.
imissioner McDaniel asked how the City will know who is living in
ity if they are not allowed to ask as parolees are not a part of
acted class.
Marshall answered that if you believed you have a parolee home, yot.
ask because it is prohibited. You can't ask if somebody is disabled
you can ask if someone is a parolee. If they are licensed, six or under .
shouldn't ask that question unless you ask it of every single family
ie. But, for the other ones, yes, you can certainly ask that question.
)mmissioner McDaniel noted the predominance of alcohol rehab home:
a in District 15, which has the highest amount of calls for police service.
it the protection of our citizens does it make sense that these homes are
the same area, does it make any difference?
Marshall answered the use of alcohol is legal. To say we have peol
i a disability which is they used to be addicted to alcohol and they
longer drinking and you can't come live next door to a fraternity hou
:re there is drinking, that is discriminatory and is limiting their housi
ices. It is in the guise of perhaps protecting them from exposure to
it is exposure to a legal activity. It would be seen as over - reaching.
)mmissioner McDaniel noted if every home in R -1 had six or more peg
it, which they don't, that certainly would affect our view on how to z
at area in terms of parking, etc. Families do not have six or more so
ning we have for R -1 addresses what is normally in that area. W
are is a concentration of those facilities in that area, aren't we basic
- zoning that area when there are up to twelve people in a duplex? 7
not normal for our zoning.
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Marshall noted this is what to look at when deciding what has
residential character of the neighborhood.
'bara Kautz, Special Counsel, added that the only facilities under
inance permitted in R1 areas are the licensed facilities. The S
uires that you treat licensed facilities for six or under like single -fa.
nes. The unlicensed facilities, under the proposed ordinance, would
permitted of any size.
ssioner McDaniel noted the beachfront area has different phy
res than most cities. Right now they are R1 and could we say
ig that falls under Coastal Commission jurisdiction has ce
or specific concerns, etc. is there any reason we couldn't put sp
on this special area?
Marshall answered yes. To make a zoning classification, it has to N
nal and promote the welfare. If it is a classification that affects
,cted group, like the disabled, then it has to either benefit or address <
imate safety concern. If you want to say because it is near the ocean i
legitimate safety concern that is something that can be said but yoi
Id want to have evidence in the record as to why there is a legitimatf
ty concern for this group of people that doesn't relate to other groups.
ussion continued.
, nmissioner Hillgren brought up the issue of protection of former users
designated as disabled and the loss of the protection when they resur
of drugs and alcohol. Specifically, what is the City's ability
ermine whether occupants are either current (unprotected) or forrr
rtected) users?
Marshall answered she counsels that a line be drawn and be appliec
istently. She then discussed the issue of testing and the ramifications.
nmissioner Eaton brought up the issue of separation and dist
rsurement.
Marshall noted the idea was to have one facility per block but
ht have one on the edge of the block that was across the street
ther one and the 75 feet would cause the second one to move c
block as it would cause over - concentration.
nissioner Eaton asked about discretionary process as opposed to
distance requirement.
Marshall noted it was to avoid the facially discriminatory aspect
on to explain.
Kautz added that the Pasadena ordinance, with the 500 -fool
ncing, is an administrative reasonable accommodation provision and
es in every residential zone and is more lenient. It allows unlicensed
jes for six or fewer people in every residential zone including R1
s. The separation requirements are between unlicensed facilities and
for the older ones but there is no separation requirement from drug
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alcohol homes or residential care facilities, licensed drug and alcoho
es or residential care facilities for the elderly, which have no spacin(
irements. The only notice given for reasonable accommodations is tc
cent neighbors. Discussion continued.
imissioner McDaniel noted the issue of care facilities being allowed
R1 zones. However, a company that owns multiple facilities is putti
nesses in the R1 and changing the character of that zone. As a C
should have some rights to say this is operating as a business a
efore we would like to have some understanding of what is going on.
Marshall noted this is what makes it so frustrating. That is what we
ing to deal with in the integral facilities definition. It is pretty aggress
d deals with the ownership and operation of six and under now operat
the multiple units in the R1 zone. Under the new rules, if it is more tF
t would have to go to Multi- family Zone. That is what we are trying
. There is State law that gives them protection if it is 6 and under e
snsed. We are hoping to make the case that there are egregic
uations in the City where this just doesn't work.
imissioner McDaniel noted his concern of the expected number
:)le in a residence in an R1 zone and the number of people in c
ities in an R1 zone.
Marshall discussed the issues of Building Code violation a
ircement regardless of the disability, and the use permit findings
iitions.
)mmissioner Hillgren brought up the issue of licensing. What
available for business licensing by the City?
. Marshall answered the license is issued by the State of California.
icensed 6 and under, is not that they are illegal because they
icensed, the State does not license them because they don't pro
dical treatment. They are operating legally.
Kautz noted the business licensing for the City is solely for
;ration purposes. They have no regulatory purpose.
t City Attorney Harp added that you can use business lice
for regulation; however, the fees have to be tied to the cost of
n as opposed to straight revenue generation.
missioner Peotter asked about the 8th and 9th Court decisions.
appealed to the Supreme Court?
Marshall answered, no.
rman Hawkins asked where the staff report document titled '
Drug Treatment Needs: Has Newport Beach Addressed its
from?
Marshall answered it was prepared by City staff.
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iimman Hawkins asked about the difference in the standards
8th and 9th Circuit Courts.
. Marshall answered that the 8th Circuit decision is a minority an(
tributed an excerpt regarding space requirements from a legal treatise
"horn book ", which is a summary of land use law.
airman Hawkins asked if the ability to apply for a use permit for
t are really boarding houses, and other uses regulated by the pror
inance to remain in certain residential zones, isn't that a reaso
Marshall answered, yes because the City does not allow any of the
p residential uses except in the limited situation where it is
lential care facility for the disabled and now you are layering on top
the conditional use requirements, so you are making it stricter. T
e scenario is, in a sense, reasonable accommodation.
irman Hawkins asked if there was a way to reflect this in the ord
these are part of the reasonable accommodations.
Marshall noted that they are trying
prohibited everywhere. That show
would be good to put in the findings.
Comment was opened.
to make this point that group i
s up in several different places
airman Hawkins noted that this hearing is to address issues relating tc
proposed ordinance regulating non - residential uses in residentia
tricts. We are not targeting any specific groups or individuals and wan
insure through these and other regulations that the City welcomes al
luding those with disabilities and other challenges, and seeks to improve
community for all including those with disabilities and other challenges.
blic comments should be directed at theses issues, not at personalities,
e earlier hearings did just that and it is a credit to the City and al
understand that the residents' group has representatives here and that
e residential care facilities have representatives here. In the hope of
reamlining the hearing, I will allow these representatives some extra time.
N much time do you need Mr. Tidus. Mr. Tidus indicated five minutes
indicated that Ms. Taber would need more time. Chairman Hawkins
i that he would allow the extra time: five minutes for Mr. Tidus and as
ch as ten to twelve minutes for Ms. Taber.
iael Tidus, partner in Jackson /DeMarco /Tidus /Petersen/Peckenp<
Corporation, speaking for community members noted the use of
tiny standard and the use of rational relation as applied in the 8th
Circuit Courts decisions related to spacing issues. Referencing
statement of the Department of Justice and Department of Hou
Urban Development he noted identified items that could be addre:
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y the City including density restrictions. Over- concentration is okay
,gulate if you can show density is a problem. We don't believe there is
ver- concentration city -wide, it is in certain areas of the City whi
istorically are densely populated with very closely situated homes. V
ropose an overlay district and within that overlay district if there is a gro
ome that seeks a conditional use permit during that process the 500 -fo
,000 -foot, or 1,500 -foot should be applicable. You can always have
sasonable accommodation if it is determined.
a agree with the American Planning Association (APA) position tha
ratifies not more than one per block as contained in the staff report. /
)ck size varies and we so we picked 1,000 feet. You may have to mak(
decision that it is closer than that during reasonable accommodation
arings. Provisions need to be written in so as to prevent applie(
uses. 75 feet is basically every other home. We believe a more rationa
stance is 1,000 in those areas where we have over - concentration. Then(
Im more than 100 of these homes within a mile and a half. He then cite(
ier cases. The registration requirement shouldn't be a problem.
)ticing the neighbors should follow the City's normal procedure.
nan Hawkins asked that Mr. Tidus make a copy of a binder with k
that he had presented to one of the Commissioners available for
. Mr. Tidus agreed.
:ne Taber, partner in Jackson/ DeMarco /Tidus/Petersen /Peckenpau,
N Corporation, speaking for community members noted the issue
:r- concentration. The City Attorney in August sent a letter to the Stz
partment of Justice affirming the fact that in this City there is an o%
icentration of residential care facilities noting that in pockets of hi,
icentration the community character has been changed from resident
institutional. Citizens have provided evidence of safety concerns ai
ues of benefiting the disabled. We think it would be better served if tl
y adopted an overlay zone that only focuses requirements in tho
:cific areas where over - concentration exists rather than a huge net
)ture all types of conditional use permits. We had proposed an ov(
icentration zone and attached a map that would also be part of
iditional use criteria and would be evaluated by the Plannii
mmission. We had requested that the City adopt a prohibition of the
es of uses in the R1, R1.5 and R2 as they are uses that are me
)ansive than the City had originally intended for these areas and a
,re akin to multiple family zones.
second issue is non - conforming uses. The City should abate illeg
:s immediately and there should not be an opportunity for illegal uses
t until the City conducts an inventory. There are no provisions for wh(
applicant who had to get a use permit, when they should get one so v
pose a schedule of 60 days to submit an application and 180 days
ain a permit with a potential for a time extension in the event it takes
ger time. We proposed a registration requirement because it
(ortant the City have an understanding of where these particular us(
. The burden should be on the operators to tell the City rather than 0
✓ trying to figure out where all these particular uses exists.
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third issue is reasonable accommodation. The provision written by
is very broad and will make a lot of the provisions in the ordinal
ningless because the proposal creates a large loophole. We prop(
the body who issues these reasonable accommodations should be
ning Commission. It is a major land use decision and there should
tuate public hearing and notice for that process to occur. We prop(
tional criteria in terms of decision making.
last issue is public participation. It is an essential part of gc
:rnment and the proposal by staff cuts the residents out of the proce
that is the issue of reasonable accommodation. There should be
>rtunity for full public notice and hearing. Public notice should go
property owners and occupants.
recommend that you adopt the ordinance as we've proposed
)mmissioner Eaton asked about the map presented and the
the impacted areas.
s. Taber answered that the map reflects all the characteristics that
I to the problems and the area where they currently exits such as
rking, narrow streets, large homes on small lots, etc. There are (
;ilities coming up particularly in Corona del Mar and that is why we
look forward and include those areas where the problem could exist.
lissioner Cole asked about the proposal for a residential care ov(
and what would be the basis? Are you using the 8th or 9th Cl
3. Taber answered that there is a long history of dealing with issues
,ms of dealing with overlay zones. When there is a particular need a C
within its right to identify where those impacted areas are and then try
ake regulations that only affect those particular areas. We have includ
at potential overlay zone in there.
nissioner Cole noted the concept of the overlay zone is someth
would be benefiting the disabled because we are creating
itional area or an area that might have narrow streets, setb<
rements, etc, are we making a case we are creating that zone
Ily help the disabled, therefore we can regulate it differently? Can
e a greater dispersal zone? What other cities have an overlay zc
Taber answered that in the cases that have been cited, one of I
ies is what is the benefit to the disabled? Certainly the law is clear 0
disabled don't benefit from the idea of them being in a residential ar
instead of being placed in a residential area they are placed in
itutionalized zone. These are the areas that the City agreed a
•esented to the Department of Justice that there were these pock(
existed in the City where the nature of the of the City had chang
i residential to institutionalized zones and what we tried to do with t
rlay zone proposal was to identify what those pockets were.
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In those particular over - concentrated areas, the City has agreed that th
lave turned it into institutionalized zones so the way you move those are
)ack to not institutionalized zones but residential areas is to create
tispersal requirement to disperse these types of facilities throughout t
;ommunity, which benefits the disabled because then they have t
)pportunity to truly live in a residential area.
,e are cities that have established distance requirements such as the
of Murrieta that has a 1,000 foot distance requirement and the twc
r cities that you have already heard about. Those are city -wide
irements. We propose that the City not adopt a city-wide requiremen
tailor it only to those particular areas where the impact exists. Citie:
rig a long tradition have the authority to regulate from a land use
pective and cities are adopting overlay zones that allow them to dea
specific issues.
nissioner Cole noted that staffs concern was that we had to I
that this was actually going to be beneficial to the disabled. Are
;sting a way to do that or do we meet that threshold?
Taber answered we do meet that threshold and how we meet th
shold is a couple of ways. We presented the map that shows all of tt
is that we have been able to locate where these existing facilities a
there is more than 100 of them in a mile to a mile and a half distant
shows over - concentration. There is the City's own assertion ar
esentation to the Department of Justice where these pockets hay
i created that have changed the character of the neighborhood fro
iential to institutionalized zones. There is broad recognition in AF
ials, Department of Justice family style cases where they specifical
about the fact that it is not beneficial to the disabled to be located in
munity that is so over - concentrated that the character of tl
hborhood has changed from residential to institutionalized zone.
Hillgren brought up the issue of the basis for a 1,
s. Taber answered that the City of Murrieta does not have the exi:
per- concentration currently in Newport Beach. However, they did a
is 1,000 -foot radius. The 1,000 -foot measurement had to do with
ngths of blocks. We believe it would be beneficial to the disabled to I
couple of blocks in- between each facility rather than 75 feet which w
low you to have a facility, depending on how wide the lots w
iywhere between every other lot or every third lot.
;inner Eaton brought up the issues of group homes and
atory aspect of all potentially non - conforming uses;
over - concentration and the reason for the overlay zone.
Taber noted we believe there has been sufficient evidence placed
ante and placed into the record that it would be beneficial to 1
bled to have this dispersal requirement. There are existing safi
;erns that legitimize this kind of standard, i.e., there have be
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cations, and in the surveys that were done, about second -N
:. Second -hand smoke is recognized as a carcinogen. A lot of ci
ordinances about where you can smoke and that same kind
tion should be given to citizens in residential areas.
reasonable accommodation is like getting a variance from an ordin
is just by a different name. Any type of variance from an ordii
ould go to the Planning Commission for consideration and should
lequate notice to the neighbors.
e proposed a set standard that could be applied evenly so there was
,portunity for arbitrary.decisions to be made. All the evidence exists
is important that everybody had notice that there already exists o%
ncentration rather than making an operator come into the City, do
use studies, only to find out that there is over - concentration in the
rticular areas.
tirman Hawkins noted the confusion between facial discrimination
reason to go to the benefit or harm. What is the analysis a judge w
e to go through on your proposal?
Taber answered he will look at the proposal and see that it identif
dential care facilities, specifically. He will need to then start looking
benefit or harm.
Hawkins; you are saying at that point that the ordinance you
is facially discriminatory, right?
Taber, yes.
an Hawkins: the reason that we then go to the two -prong is
the prima fascia case of discrimination, right?
Taber, yes.
.hard Terzian, partner in Bannan, Green, Frank and Terzian LLP,
inset for Sober Living by the Sea noted he had sent a letter dat
gust 22nd which repeated comments sent in previous letters. He stat
was available for any questions.
rman Hawkins stated he had reviewed Mr. Terzian's firm Website ,
ed they represent public agencies. He then asked, as a counsel
c agencies, if Mr. Terzian had an opportunity to defend any of th
cies in connection with an ordinance like the one we are consider
Terzian answered yes, it was in the U.S. District Court. It involved
r Housing laws, both Federal and State. The defendant owned
heimer homes for the out -care of these patients, each with six or fe
idents. Following vigorous code enforcement by the City against
vidual she went out of business. The owner sued the City clain
re was discrimination against the handicapped. After a prolonged
I jury deliberation, the result was a verdict of 22 million against the
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found two members of the City Council and the Director
:s had participated in the discriminatory action. The total
ng a fee application of 19 million dollars was 41
ing a series of post trial motions and negotiations,
exposure was reduced to 20 million dollars that w
million
the 41
as paid
imissioner Toerge, referring to the letter, asked about the statement
posed amortization of non - conforming use would also be a violation
citing the time frame of 5 years in the proposed ordinance not bei
igh to fully recover from an investment." What investment, how c
characterize the investment, and is it the same for every facility
Id they be offset by the ability to rent it out, were you abated in ott
s? If you could sub - lease, wouldn't that offset that investment?
Terzian answered a long -term lease obligation plus what
fications had to be made to the house. He could not be anyr
fic. My client does not own any of these homes, they rent them.
ble, but I don't know how you sub -lease them.
imissioner Toerge referenced in the letter that "..no matter how muct
City and a few vocal residents and a small number of individuals.."
( do you define few or small?
Terzian answered, certainly a lot less than the large 80,000
ulation of the City.
;sioner Toerge asked if anything could be expected to generate
by 80,000 people?
Terzian answered, no but would expect it to generate interest in m
i the same number of people who keep coming back and making
(e complaints. That doesn't mean they aren't entitled to complain or
listened to and considered, it is a comparatively small number
pie. He went on to discuss his work in Malibu that has 57 of the
fission continued on complaints in general; good or bad operators
impacts; and the use of code enforcement.
ert Rush, local resident, noted the issue of the case mentioned b
ious speaker as well as one in Boca Raton are referenced to intim
I governments. He noted that the operators of the Alzheimer's' he
ally demolished buildings without permits and that was the cau:
case. The City then made judgments on that operator. He note(
a Raton case attempted to place the use into a medical zone.
igenuous for individuals to focus on these cases as some fate we
sr if we try to apply fair and reasonable standards of concentration.
Liskin, local resident, noted the number of people here in a town (
00 people. Most of these facilities are on Balboa Peninsula, how man
)le live on the Peninsula? I think that is the way to look at th
bers. In terms of working with the community, we still need someone,
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;lieve, from Sober Living by the Sea to take a leadership position with th(
her operators. That is something that is done frequently in healthcar(
here operators work together to set standards. Maybe Sober Living b,
e Sea is a good operator, but certainly if they believe they are the,
could spend time with the other guys to make it work for the community.
would be such good will if the operators would buy back a couple of thei
ases and move and get rid of this concentration issue. In companies
(king about hundreds of millions of dollars of revenue which CRC (paren
)mpany of Sober Living) exists in, buying a lease for whatever amount is
;anuts in terms of what it could do in terms of community good will.
had applied for a short-term lodging permit and was told I couldn't g(
me as I live in an R -1 zone. I support the idea of not having short-terr
odging in R -1 and that is based upon my experience. There is an issue (
aimess and if I am making an investment and houses on either side of m
)re saying that if they can't sell their homes they will rent them, I don't thin
hat makes sense. Why do I have to put up with people who come in an
ell me that for the $5,000 a week they are spending for the home they ca
)arty whenever they want to, I don't think that is right. Finally, the issue (
iiscrimination. I don't understand it. I am a resident and live an R -1. If
vant to rent my house on a short term basis, I can't. If I could, I woul
lave to register with the City to get a permit, so how is it discriminatory t
isk facilities that have six people living in it to register that are operating
)usiness? I don't care what you call it, they make money or they wouldn
Jo it. Even if you say it is not a business, I have to register if I want to ren
Yhy don't they have to register for what they do? I don't see th,
iiscrimination.
hence Sherwin, local resident, noted these facilities take care of o
t rich people and I don't know whether it is discriminatory or not. VI
't you demand accommodations for people who don't have money
? These facilities are based on use by citizens of Newport Beach.
can't find out who is living there, and if they are not residents
vport Beach, why can't we find that out to make sure that these facilit
for the primary use of citizens of Newport Beach?
rie Morris, local resident, noted Malibu has 27 miles to acoommodat(
.ip homes. They have 18 of those group homes, we have over 100 or
Peninsula alone. Malibu should not be a case that is referenced. Sh(
i noted the bits of case law referenced by Special Counsel. There ha:
n a taking in Cannery Village that has turned into an institutionalize(
ing as there are hundreds of bikes at all hours. If you go down there
are not welcome. That is also happening in Lido Village with all th(
sting houses and office buildings that are only for the sober livin(
ities and places that did rent in Lido Village are no longer there. Then
empty spaces being taken over for meeting houses. Smoking is <
e issue. The six and under unlicensed facilities being a family styl(
ing, with vans showing up at these settings, and taking each of thos(
dents to Cannery Village or to wherever else they are being taken fo
dental, medication, mental health needs are services being provided.
t should be considered an illegal use and should be addressed w
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David Diamond, local resident and neighbor to one of the facilities
;presented by Mr. Terzian has had various problems with them. Ht
sually has been able to deal with the people on the premises to reach at
ffective solution. His home is surrounded on 39th and 40th Streets wit[
iese group homes. Both 3960 and 3980 have gone through renovation:
nd have changed their windows and remodeled the kitchens, all without <
ermit from the City. We have many operators of many homes in ou
nation. Some of them are helping this area turn into a third world over
opulated area that is unlivable to normal citizens. We have fly infestation:
i that area from all the trash. The City has to address these problems.
here have been instances of a man exposing himself on the balcony a
980. 1 talked to the operator who supposedly took care of the problem.
bout 1:30 in the morning two weeks ago, an individual was talking outside
n his cell phone. He was very animated and talking so loud that I couldn'
eep. I asked him to tone it down and he did not respond. I yelled at hin
i get inside and carry on the conversation. The next morning I talked tc
ne of the operators and he had the man come over and apologize to me.
did not call the police and so it doesn't show on any record. The nex
Ight, the operator and this individual had a huge argument that I coulc
ear coming through the window. Now, they are putting in double -pane(
indows. If you would look at the questionnaires that were sent out anc
ie responses, you will see the problems that we have.
have such a concentration that these people know each other and y
c and forth, sometimes the language is horrible. This is not the nom
acter of living in an R -1 home. I don't mind talking to the operators
and help them control the problem but the problem has be
;erbated by the over - concentration of the group homes with the alle
g blocked by vans stopping to pick up and discharge the residents.
s a tremendous staff to be able to provide food, supplies, medical a
5portation needs and other things for twelve people in a home. T
ty next door to me has 18 people in one residence. The concentrati,
tes problems.
Del Slutzky, local resident, encouraged the City to talk to the
isponders and have them do an analysis and it would probably be be
,000 feet. He supports an overlay zone.
)nise Oberman, local resident in an R -1 zone on the Peninsula, not
Dse complaints are not new This is about uses and the integrity of tl
mmunity. We have an over - concentration of a type of use that evolve
a result of the City essentially removing all reasonable ordinances ai
gulations that it had at one time and also permitting, without any revie
constraint, these uses in the R -1.5 and R -2 zones. It has particul
pact because of our use characteristics, physical use characteristics, e
the coastal zone. There is concentration occurring now in the Santa Al
lights and West Newport and other homes popping up in Corona c
ar. Our lots are very narrow so whatever impacts exist, wi
ncentrations the impacts are that much more intense. For exampl
inking; the houses are mostly 3 to 6 -feet away from one another, wall
ill. She then discussed the second -hand smoking issue. We feel this
health and safety concern and we feel we have the right to live in
coke -free environment. This area was not designed to have institutior
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s, it was designed originally as a residential community with so
cial districts that afforded some recreation and other types
veniences. There has been a concerted effort by the City to revita
area. Having an over - concentration of institutional uses is going to
nter productive.
ron Batley, read an email from Craig Batley of Burr White Realty th
s previously included in the staff report. The two group hon
finances passed in 2004 failed to curb the proliferation of the groi
mes. The proposed ordinance is flawed as it allows more, not le:
wp home businesses in the City. The short-term lodging industry h
en operating on the Peninsula and Balboa Island since the Cit)
;eption, and the industry has been regulated since 1992. Short-ter
Iging customers are families with children, group homes customers a
rds of the courts; short-term lodging is transparent in its operatior
)up homes are secretive and proprietary; short-term lodging gues
ntract with property owners, group homes do not contract with propel
rners; short-term lodging guests have occupancy limits and group hom
not disclose this information; short-term lodging guests pay Transie
.cupancy Tax (TOT), group homes do not; short-term lodging guests a
evicted at will, group home operators cannot be evicted; short-ter
)perty owners are subject to fines, group home operators are not; sho
m lodging guests are single housekeeping units, group homes are nc
ort-term guest lodging covers about 2 and 1/2 months worth of impa
ring the summer months, group homes impact all year round. For the:
isons, we ask that you bifurcate the short-term lodging from the gror
me ordinance.
Mores Otting, local resident, noted her agreement with tl
commendations of Alene Taber. She then made reference to a she
filled Intervention that deals with drug and alcohol types of people. C
eir web site, Sober Living by the Sea is listed and they talk about all thl
. atments. Many of these people are coming to Sober Living here
�wport Beach. There are more sober living homes and drug homes
e City of Newport Beach than there are in any other City in California
the United States of America. We should be able to go to the State ar
:t some sort of dispensation. I would like to know how many hom4
ese other cases that have been referenced are dealing with because
ink this is not an over - concentration is ridiculous. The current ordinarn
talking about one per block. That means we could have 50 units in or
ea, which could be for sober living, then we would need one per block f
e bulimia patients, etc. According to this ordinance it could I
)proximately 450 homes you would be okaying. I need someone
:plain this to me as it is definitely making it worse. You need to watr
at show at least once to see what these neighbors are dealing with on
rily basis.
. Marshall noted that there is a misconception about when it said c
:h use per block. Because of the way it is written it is to apply to
rditional uses, the intent was different types of uses. Residential c
ilities, whether they are for bulimics are for alcohol /drug facilities, wo
one use. It certainly was not intended to be different types of facilil
ving different populations.
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Brenner, local resident, noted that there was a group home two doc
for mentally ill adults next to her home. I bring this up becau
centration is not the only issue here. With these homes so clo
Aher, what goes on inside is heard by the neighbors. There was
;h screaming during the night. There were buses lined up and doA
street with engines running and radio communications blaring dun
day picking up the patients. We have noise regulations and I can c
police for noisy renter neighbors. If we start calling police every tir
noise from the group homes is impacting us, not only is that impact c
ty to respond to emergencies in the City, but it will create a problem 1
property owners if a regulation is in place for them to be charged
e than two calls are made on their premises any given day or night.
what we have to do? We have to be able to regulate and control the
ip homes because the residential atmosphere in our neighborhood w
troyed by this home. It is no longer there, fortunately, as it has sin
n sold to a family who now lives there. You can't just look at this of
centrated area and think that is the problem and it is just these sob
g homes because it is a larger issue than that.
ck Nichols, local resident noted the License 10505 says that professic
mership can't own or rent a sober living home. Sober Living by the
certainly a professional ownership. Owning the lease and renting to
under that doesn't matter because they are a professional ownersl
d in owning more than one have to be licensed. I don't believe they �
ve unlicensed homes. I think we need to enforce State laws and by
ing we then have some ability to trace where they are. It's ridiculous t
have to trace where they are. State laws says those homes have to
ensed and we need to make that clear and it should be enforced.
comment was closed.
irman Hawkins stated the issues of over - concentration, the argun
sober living homes outside the scope of these regulations and that
is pre - empted, reasonable accommodation standards, the amortiza
then the process whether it is heard by Mr. Kiff, planning staff, 1
ncil or Planning Commission, integral facilities, registration, short-ti
ing and overlay Issue
noted that the scope of the ordinance and applicability to the Sobe .
ig by The Sea and other operators licensed and un- licensed facilities.
Terzian argued that the regulations are pre - empted by State Law anc
The even Federal Law. He asked staff to respond.
Marshall answered State Law protects licensed 6 or under.
posal does not affect those facilities except in the definition of inte
lity. We made the argument that because they are combined, 1
Ily are not six or under and that is a legal theory that is not tested,
think is an excellent argument that is defensible. That is the one a
;re pre - emption could be alleged to apply. Elsewhere, everything
,e written does not affect the licensed 6 or under.
irman Hawkins asked about the residents' proposal in connection
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and State and Federal Law on that issue and the
Is. Marshall answered the residents' proposal is much more targeted
my these uses that serve the disabled. It opens up the issue of fac
iscrimination issue. I have not seen evidence on the record of benefit tt
would want to have there to defend those proposals. It may be that recc
ould be supplemental, but it is not there now. The other major issue is t
:asonable accommodation section, there are hundreds of cases tt
rticulate what standards a City could apply to a reasonat
ccommodation request. All the additional things that were added, many
iem are probably expressly prohibited by case law. That part
articularly vulnerable.
man Hawkins responded that Ms. Taber acknowledged that th
)sal was facially discriminatory so that puts the City on the defense
point. The primary benefit that she explained was the institutioi
icter and how disbursing these disabled persons was a benefit
. Has that argument been tried before in other disability and F
ing cases, and what has been the result?
Is. Marshall answered Family style was a case on that. She agreed tt
ie argument was that institutionalization was. the evil and barring It
could benefit the disabled. There are other cases where the issue h
ome up and it came down to whether there was evidence of benefit. T
ases are in different situations where it was probably a lot clearer tt
sere were probably very many residential care facilities and that t
;gulations had been designed to keep out any. This situation is clea
ifferent with the over - concentration.
nan Hawkins noted the operators and disabled have argued
of these plain benefits are a pretext, right? That in fact, they are
Marshall answered that is correct. They are just a way to keep
ties out.
Kautz added there are a number of cases where the courts look
aularly at separation requirements of 1,000 -feet or more, looked at t
orted benefits of that and almost always find that the evidence doe:
y the benefits. This one from Children's Alliance versus the City
wue in Washington, the Court said that they should be. wary
ications purported to help members of the protected class. The Co
Id asses whether the benefits of the requirement clearly outweigh t
ens. People have been presented some evidence that there may
ets that are clearly over - concentrated where there may be
utional type environment, maybe something that is much me
iwly drawn might be defensible. A general 1,000 -foot separati
rement is the kind of language that the Courts tend to look at, it h
very difficult for us to find the evidence. The only kind of authoritati
;e we could find was a policy position by the American Planni
ciation (APA) that talked about one home per block. Perhaps w
research more evidence could be found, but that tends to be how t
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look at this, particularly at a requirement of 1,000 feet.
irman Hawkins asked, in
terms of the narrow restriction, does
lay zone accomplish the restriction that you
1,000 -foot requirement for all the City is not
lay zone for pockets would accommodate it?
are talking about
carefully drawn,
Kautz answered that staff has a map showing the location of at le
ised facilities. There is a number of places included within the n
was drawn that have no existing at least licensed facilities and even
maps we've seen, no known unlicensed facilities. I don't think �
d prevent future over - crowding. Where there is evidence of exist
crowding such as on 39th Street, there might be.
nmissioner Toerge asked for an explanation of the moratorium ai
ig issues. Also, with all of the materials we've just received, does tt
i have to be settled tonight? I know the residents don't want to extei
moratorium but at the same time we want to consider this document.
not an attorney and not used to engaging in detailed language
uments. Perhaps the City Attorney's office will agree with the strike -c
.ion presented by the citizens group but I think we need more time.
ssistant City Attorney Harp answered to have this considered by the Ci
ouncil and adopted within the moratorium at the September 11th meetir
Du would have to make a recommendation by September 6th. There is
d of material that has been submitted and we haven't reviewed eve
etail of the proposed language. If the Planning Commission feels it nee(
dditional time, our office would recommend extending the moratorium
ive an appropriate amount of time to consider it; given the amount
that seems to be appropriate.
Toerge agreed, stating this has to be done right.
Hawkins asked for a straw vote on the issue of timing.
oner Eaton answered there are substantial issues that need to
and there is not enough time to do them in one night. To g
enough time, this would have to be continued and therefore
of the moratorium is needed.
issioner Peotter noted he believes at least two meetings wi
i in order to review the materials and have a finished product
policy issues.
Cole agreed.
ssioner McDaniel agreed, adding he received information at the
today and that he needs time to review it.
nissioner Hillgren
s and let staff anc
another meeting.
agreed, stating he wants to focus on the bigc
counsel take care of the wording. We will need
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irman Hawkins noted it is unanimous that we will need more time to
correctly.
mmissioner Toerge noted the 75 -feet does not provide the kind o
Daration I think is warranted given the creation of institutional character,
ich I think is a detriment to the handicapped. I am not sure what the
tance should be but it needs to be objective. I support an overlay zone
areas where physical characteristics contribute to the detriment to the
ndicapped in these kinds of operation. An area, such as Newport
ights where the homes are larger and further spaced out with bigger
-ds, I can see how possibly an unlicensed facility would have a lessee
Dact than one six feet away on a Peninsula location where the lots are
100 square feet with 3 -foot setbacks. He suggested that straw votes be
:en on each issue.
Hawkins asked for a straw vote on the distancing issue.
nmissioner Toerge noted 1,000 feet may be beyond what is nece:
create the kind of separation to eliminate the detriment to
dicapped that is my concern. 500 feet might do it; I am not sure
would do it.
immissioner Peotter noted 1,000 feet is similar to what goes on v
ier uses like alcohol and other distribution uses. I would encourage s
research some of the options as far as 300, 500 or 1,000 feet. I have
)blem proposing 1,000 feet to the City Council then they can make
mmissioner Eaton noted he prefers the 300 -feet as it is
mmissioner Cole clarified that the overlay zone is required before
i create a greater dispersal of square footage. Is this correct, that y
ate the overlay zone in order to make a case for institutional ar
reby make a case for a greater dispersal amount. I would be in favor
t language whether it is 1,000 feet or something less than that. I woe
ve it up to staff to come up with the most possible distance that can
tified. I am in favor of that concept.
imissioner McDaniel noted he agrees with Commissioner Cole.
the overlay issue because it gives opportunity. Testimony
ling indicates, that as well as some of these units are run, these pec
are handicapped, I am not sure how they fit into R -1 at all. It concE
when the setbacks are six feet and that no matter what the spe
1s are it becomes a big issue. If we can get as big a space
3ible, I would support an overlay. and within that, however staff
isel feels we can do that.
�ioner Hillgren asked if this applies to both licensed and
facilitates?
Harp answered that the State prohibits the regulation of 6 and u
are licensed. This would deal with 7 or more that are licensed as
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deal with 6 and under that are unlicensed.
mmissioner Hillgren noted that whether a home is occupied by sev(
:h a license or six without, these facilities are still effectively a busine
eration that we are dealing with in a residential neighborhood. At son
int, when we bring some amount of businesses into the neighborhood,
nverts from residential neighborhood to a commercial district. I think v
trying to protect a residential neighborhood. I look at it from that poi
view, and whether it is 30 -feet or 3,000 -feet, it is changing the intend(
sence of the district. I would like to make it is broad as possible ar
ply it to all facilities.
McDaniel asked isn't licensed mean that they have medica
Harp noted there are five criteria for licensing.
s. Kautz added it is a low level of treatment such as counselh
lucation, life planning plus what is called non - medical basically detox.
a very low level of treatment before a license is required.
McDaniel asked would this be on site or off site?
Kautz answered it means the operator is offering it on site. But
permit these integral facilities, which is where the language cc
in the proposed ordinance, where you have treatment services.
house residents in one building and provide the services in any
ing provided that the buildings are integral components of the s
ty and licensed as a single facility. That is where we have the w
iition of integral facilities. These regulations only apply to drug
iol treatment facilities, they do not apply to any of the other lice
ties like residential care homes for the elderly.
mmissioner McDaniel asked if there is treatment on site in an R-
idence, it appears to me that we have changed the concept of R-
idential housing. I realize maybe the State sticks that in our eye, an
can't do anything about it, but it certainly affects the zoning of our are
the simple fact that there is treatment there.
irman Hawkins noted he supports the residents and has argued
:r contexts that 1,000 -foot buffers are necessary between incompati
s. However, I understand what has been argued by both Spec
nsel and Mr. Terzian. If the overlay zone and the buffer requireme
tever it is, you have facial discrimination, that's it. The short-te
ing folks can just go home. Once we have facial discrimination
t really need to apply it broadly, we apply it narrowly and then we N
we hope that our argument regarding institutional benefits that i
ronment is creating an institution which does not benefit the resides
they would be benefited by a further dispersion. I think that is a n
iment but I would not want to be making this argument on behalf of I
because I think it is a loser; it is a pretext. I support the resider
re to get some control over this problem but I don't think the distanci
the overlay zone is the way to do it.
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) mmissooner Cole noted the way the language is written in the ordinance
is only required as the use permit process, the over - concentration issue
when a use permit is required. Is that the only time when the disperse
mes into play?
Marshall asked which proposal are you talking about?
Cole answered for both.
. Marshall answered that the first proposal does not permit
icensed 6 or fewer in R -1 at all. It does not permit the 7 or n
rwhere except multi - family residential so it is an absolute prohibition
i would never get to a use permit there. The one per block is
ndard with the 75 feet to deal with the edges of the block.
nmissioner Cole noted with the straw pole we just went through, whic
general support for the concept of an overlay zone, which by the w,
felt there might be some merit if it was narrow enough where we cou
/e over - concentration. My question, it is only under a use permit whe
dispersal requirement would come into play, is that correct?
Marshall answered yes.
Harp asked for discussion on the issues of distancing and the ov
ict, as you are focusing in on that as far as the residents' prol
rrding the overlay district, or something a little narrower, could
:h on that?
iissioner Cole answered it appeared there were some comments
where you felt a more refined overlay district where we could p
ntration might have more merit to the idea and would be r
Marshall answered if you are going to do it, make it a narrowly
You need to get some evidence in the record about the 1,i
how you have created the zone.
missioner Eaton noted his concern of an overlay zone that would
:d upon assuming what shall be facially discriminatory because
lay zone only relates to rehab facilities. I am not prepared to go t
When I was spoke of support for 300 -foot distance, I was assum
question was still open and could apply to staffs proposal about
conforming uses, not just the facially discriminatory threshold of
lay zone and only rehab houses. These two are very different.
Hawkins asked about a new straw vote.
;ommissioner Eaton asked do you really want to start from the facial
iscriminatory point? I have a reluctance and I do not want to do that,
rrget rehab homes, and therefore virtually admit that we are being facial
iscriminatory. The overlay concept goes with that, and therefore, I have
oncern about the overlay zone as well.
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mmissioner Peotter asked staff about an overlay zone and how it
implemented.
Lepo noted that an overlay zone is not something that is common. Yor
re a scheme of zoning or development regulations that apply throughou
area but within that area is a subset you find there is some problem o
cation that you need to address. By applying an overlay that leaves it
re existing development regulations but for some subset of that overal
a, apply some additional level of regulations. That is the overlay
icept in general.
at I wanted to bring to your attention was the map that we had pulled i
fore showing known license facilities. Staff has discussed if we define
West Newport and the peninsula as an impacted area and we were to
it looking at this map, where the overlay would apply and defining
rrow overlay area it would be just the immediate vicinity around 39
•eet, but it is a very small area. Ideally, I would like to say that all
Rst Newport and the peninsula is impacted.
rman Hawkins referenced the attachments to the residents
provided a basis for a different overlay.
Lepo answered that the impacted areas included Corona del Mar.
oa Island, Peninsula and West Newport.
Kiff stated if this is a question of a correct map, if it is just
:d facilities, it's close to accurate, but if it indeed has unli
living, there is not nearly enough; I can't confirm.
Lepo answered for purposes for example, what you were saying
'rawly define an overlay area. So essentially, on this map each clu
uld be one narrowly defined overlay area so we would have maybe
the peninsula, rather than the whole peninsula.
Os. Marshall added that Ms. Taber said correctly, to apply citywide was
)road because the whole basis for applying the overlay
nstitutionalization. You are only going to apply these special stands
vhere there is institutionalization because that benefits the disabled.
nap was too broad.
issioner Eaton asked if it was fair to show a map of licensed faci
we are talking about an overlay zone that would govern
onal use permit process for unlicensed facilities.
:hairman Hawkins answered that may be, but let's focus back on ou
iscussion because you raised the issue of whether we wanted ti
pproach this in a facially discriminatory manner and your position was no.
did not hear Commissioner Peotter's perspective.
iissioner Peotter stated if you were to do something like goi
fe with an overlay zone, could you do something along the lines
uses we consider institutionalizing of residential neighborhoods; if
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re going to have these kinds of uses whether they be large
ober living or whatever, we want to have them in areas where
0 -foot setbacks instead of 3 -foot setbacks. Would that be
iscriminatory overlay?
we
a r
Hawkins answered if it is targeted to only the residential
yes it would.
Harp added that if you apply it broadly enough or apply it to all tt
s, then it does not become facially discriminatory. It is when you
cling out the disabled uses that you become facially discriminatory.
ldn't apply an overlay citywide, you would focus it on where you t
problem.
Kautz noted that the ordinance addresses all conditional
residential homes figuring those were the ones tha
idential character of the neighborhood.
uses b,
might
nmissioner Peotter noted setbacks being at minimum lot sizes could
aes that negatively impact these neighborhoods based on this m
icentration of uses. If there was some way to do an overlay zone t
Ad not be facially discriminatory but try to use standards where it we
less impactful to the neighborhood, I would be in favor of the over
can Hawkins affirmed you do not want to institute anything
be facially discriminatory either.
nmissioner Cole answered that he would be in favor of looking into al
clay zone as the City has made a statement to the State Department o
Tice that there exists an over - concentration of residential care facilities.
is the most concentrated area as far as residential care facilities and i
can't make a case here, then no one is going to make a case and
sve we should take advantage of the unique situation the City has o
concentration and allow ourselves at least the ability to create
iersal requirement that will be greater than 75 -feet.
irman Hawkins noted his concern about that approach is the ill you ai
eting the benefit to the disabled but rather dispersing the uses so th
don't have a problem in those areas. From my perspective that is
illy discriminatory thing. The only basis for that is a benefit to tl'
bled, or a specific or targeted threat. I don't see that we have any
;e. The problem I see with facially discriminatory legislation is that pu
City on the defense immediately. If we can say, no, we are applyir
to everybody and this is how it lays out, would be the better approach.
Cole stated I've heard we can make a case.
think there
evidence and we can create enough defined zones If there
100 residential facilities then we can make a c
:utionalized area and it would be a benefit to tl
s by creating this zone.
ise that it has
ie disabled in t
McDaniel agreed. He supports an overlay zone.
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nmissioner Toerge agreed with the overlay zone. There are eel
racteristics within those areas that contribute to this detriment to
dicapped. If we can foresee those qualities are in o
thborhoods, where maybe there currently is not a detriment but tt
Id be, maybe we can apply it, otherwise all we are going to do is rr
problem.
ommissioner Hillgren noted being facially discriminatory troubles him.
ie issue however, is one we can wrestle with in other areas and this
mcentration issue is one that is so grand, talk about detriment. Whethe
is someone who is disabled or not, if you are living in a residential ares
at now becomes commercial, that is a detriment. That is the approact
id whether it requires an overlay zone or has a broader sense, I woulc
:e to start from a position that we are not defending ourselves but where
e are practically saying we worked to solve this.
Hawkins asked if the proposal by staff and counsel does that?
Hillgren answered it's getting there.
Kautz added that you can have an overlay that would have parti
irements for all conditional uses in that area because of
acteristics of the lot size, for instance. You could have an ov
that is not facially discriminatory.
man Hawkins noted there would be a separation in these small
; that has to apply to all residential uses, that basically is what
ck is. If you then apply a distancing for the disabled or resident
facilities that is larger than the single family, aren't you facia
Kautz answered that within your overlay zone, you could not
ictions that would only apply to the disabled. It would have to be
sral restrictions to preserve the residential character of
hborhood and they would apply to schools, churches, inns, mE
;es, clubs, lodges, etc.
McDaniel noted there are at least 5 who like it so can
on?
r. Lepo stated that staff has understood from legal counsel that we
A define the peninsula and all of West Newport as an overlay area
is these conditions for purposes of applying these separ<
quirements. They are talking about a matter of blocks. There are
lies of beach with a very narrow strip of land that has one arterial in
it, small lots with setbacks, commercial uses, and 40% of p�
sources. We were still told we could not do this. Each one of those
i the map would be an overlay area.
Kautz added that if you are going to have a facially discriminal
ance where you are going to try making a case where there is
utional character to the area, then you have very small zones and
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p home is not a zone. You have a cluster of what is described aroun<
Street. Maybe where it becomes a majority of the uses in the area
is if you are facially discriminatory. If there are conditions that yoe
to apply broadly to conditional uses, then you could define small area
has similar physical characteristics, like small lots, etc. Those
lations would not be applied only to residential care facilities. The CitS
d have to be very careful how it administers this so that you can tell
of or church no, whatever.
asked in that example we're not facially discriminatory, we cou
include the whole peninsula and West Newport?
Marshall answered if there was some reason to do so because of
etc.
Kautz added the distancing requirements would need to be related to
oical characteristic so you need to develop your record.
Harp noted this map is not accurate.
nmissioner Toerge added Balboa Island and Corona del Mar for ft
i same physical characteristics that we are talking about, small lots
-ow alleys, etc. It is our job to make recommendations based upon th(
rmation that we have received from staff, residents and specia
nsel. All we are going to do is recommend to City Council. Being tok
it we can and can't do has come and gone. We are in a place where
have to make a recommendation based upon what we have learned.
s is not an exact science speculating what a judge might do. The Cit,
incil will have to make the tough call on our recommendation. As
fining Commissioner I want to recommend good planning and that is the
is I am making my recommendations tonight.
>sioner Cole noted there is a majority for an overlay zone. The
l
zone should encompass the entire peninsula, Corona del Mar and
as it relates to small lots.
iissioner Toerge answered based upon the map the resident:
-ed, I agree with that. It does include West Newport, Lido Island
9 Island, Corona del Mar and there is one area I question is the are<
J Hoag. There is a lot of MFR in that area and I think the MFR is the
appropriate location for this type of use. I would like to make thie
3r to include those other areas with these same characteristics.
)mmissioner Cole agreed adding the language should be more narrc
ilored in order to make a case so those areas where we are making
ise have the over - concentration. In my opinion if we open up th
oad areas we are just going to be shot down. I would like to have
ke a look where there is over - concentration. That is where the prob
and that is what we should be focusing on to try to get dispersal.
Hawkins noted you are talking about actual areas of
on, not projected areas of over - concentration.
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nissioner Cole answered yes. Those cases we can make that
over - concentration; narrowly tailor it to those areas.
iairman Hawkins asked if staff had direction. The Commission is in f�
an overlay zone which may or may not target specifically the resides
re facilities. I think the preference of the majority would be to have it
facially discriminatory.
then brought up the next issue of reasonable accommodations
;d for input.
Harp stated we heard two different proposals, one was focusing
all lot areas and the other was on the actual impact. It would be g
us to have direction on which way the majority would feel about that.
ian Hawkins answered we talked about the overlay zone as
as possible and an attempt to make it facially neutral.
Dmmission Cole stated there are two different concepts. My suggea
to go with narrowly defined, where there is actual over - concentration.
nissioner Eaton added he would be in favor of an overlay that wa,
i upon the restrictions of the lots and that applies to all conditiona
so that it was not facially discriminatory.
r Peotter added that was the intent. We deal with the
on the setback issue.
imissioner McDaniel noted he understood counsel to say that would
best way to deal with, to have it by lot size. I am in favor of m
aral based on lot size and not facially discriminatory.
Hawkins noted there is unanimity on this for small lot
imissioner Cole asked if we want to give direction on the footage,
part of the same dispersal issue?
Hawkins noted we can go onto the dispersal requirement.
Eaton favors 300 -feet for all conditional uses.
nissioner Peotter favors shooting for 1,000 -feet and settling for
only for the residential care facilities. Using what staff
emended by 1000 -feet instead of 75 -feet.
Marshall stated staff is not recommending facially discriminatory,
r to apply to all conditional uses.
finer Cole favors 1,000 -feet or as close as we can get to it for
care facilities in an overlay zone.
McDaniel favors 300 -feet for all conditional uses.
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imissioner Toerge favors all conditional uses a minimum of
would support 1,000 -feet.
;ommissioner Hillgren asked the length of the peninsula. He was told
l2 miles. That results in 15,000 -feet and we are talking about 15 potentia
omes in that zone if this were to come true mathematically. If we are
oing to try to defend over - concentration and whether we are serving the
eeds of our community, can we make that argument in 20 homes or les;
r Newport Beach overall? I worry we've blown our argument if we go t(
,000 -feet. It strikes me we need to be at 300 -feet to be rational. Thi:
,ould be for all uses.
airman Hawkins noted he did not support the overlay zone as h
Ards it as facially discriminatory, but if it affects all conditional uses,
k maybe we have a shot. I do not believe the benefit to the residents 1
residential care facilities is going to be a winning argument.
Harp noted it was indicated that the distancing only apply to resides
facilities but the whole point of the overlay is to apply it across
rd to all the uses. I want to re -visit that point with you again as
.red the overlay but you seemed to indicate distancing just for th
)mmissioner Peotter answered the overlay has to apply to all condii
e permits. I was recommending the over - concentration be applied
care facilities. That is not the consensus of the Commission.
Harp stated the overall position is 300 -feet at least to all uses, 1,000
think its defensible. It was agreed.
Hawkins brought up the issue of reasonable accommodations.
mmissioner Toerge supported review by the Planning Commission
by the Zoning Administrator given the contentious and the expar
)rtunity for the public to participate.
iissioner McDaniel supports this noting the residents need to
and this is the forum where they will be noticed.
Hillgren noted his agreement.
Cole noted his agreement.
Peotter noted his agreement.
missioner Eaton noted his agreement.
3n Hawkins noted there will be a lot more incidental requests a
an administrative procedure as well as Planning Commissi
then brought up the amortization issue.
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issioner Toerge asked staff about choices on this issue.
mt that we should abate all illegal uses, that's a no brainer.
rman Hawkins noted it is a timeframe issue. The illegal uses
nated immediately, other uses that do not conform there is a sh(
frame under the residents timeframe.
Kautz noted Chapter 20.62 is only non - conforming uses and is r
al uses. There is no such thing as an illegal non - conforming use, it
an illegal use.
irman Hawkins noted, so illegal uses can be enforced by our
Kautz answered right, there is a separate enforcement section that
has.
mmissioner Eaton noted language about the City may prosecute.
the changes the citizens have made, and I agree with, is that the
Il prosecute. I think that needs to be made mandatory.
nan Hawkins: straw vote in connection with mandatory prosecution
uses.
over Peotter, not in favor of mandatory. I believe it should be
of the City Attorney and Council.
Cole stated he was not willing to go that far.
ner McDaniel asked what prosecute means.
Harp answered the Municipal Code provides remedies to deal w
3tion of the Municipal Code and one of those is administrative citatio
final prosecution, civil action to get an injunction to basically enjoin
al use. If a use is currently illegal than it would be subject to soi
i of prosecution. However, it is important to note that by adoption
ordinance there will be a creation of a lot of non - conforming uses,
ance, you will now be requiring a use permit for all six and under tl
not licensed. That is an important distinction to make.
Hawkins noted they would not be illegal uses.
r. Harp answered they would be non - conforming.
iissioner McDaniel noted he is not in favor of prosecuting but he
to make sure that they do what they are supposed to.
;ution part is too harsh.
issioner Eaton stated he used that word and it may have been
He noted the current proposal reads the Planning Director rr
a written order of abatement and the residents' proposal is 1
ng Director shall issue a written order of abatement.
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Dmmissioner McDaniel noted he is in favor of that.
:)mmissioner Peotter noted the Planning Director ought to abate it
r. Harp noted you are starting to word smith. That is an issue we will take
look at, I am not sure abatement is the correct term. Overall, there are
rqer issues to deal with.
Hawkins noted it is an important issue of whether it should
or discretionary. You would want that direction.
Alford clarified what Commissioner Eaton is talking about is a
re a use has gone through the process with the necE
ications, the Planning staff and Planning Commission, the inva
been approved and then the abatement order goes out, that is
wanted the no discretion.
nmissioner Eaton answered he is talking about the illegal uses
s that go through the process are the non - conforming uses and
the ones that I think staff is proposing to process declaring.
Alford noted you seem to be referring to Chapter 20.62 and that
re my confusion is.
mmissioner Eaton answered that is the language that I picked but then
s other places that talk about illegal uses and says the City may proceec
abate, whereas, the residents' change is the City will proceed to abate.
at is significant.
issioner Toerge favored using "shalt' instead of "may ".
Hawkins noted that was a majority.
Hawkins brought up the integral facilities issue.
irman Hawkins noted his concern that the tables reference integr
ities by a population greater than 7. Integral facilities in the definitic
no number in connection with the numbers of residential care facilitii
dl licensed or unlicensed, General. All you need to have is two th
:tion together and they are an Integral Facility, which takes them in
general category. It seems to me you could have two that function ,
gral Facility for which there is only four people total. I am not sure yc
it to capture those folks. I think you want a numerical, in other words,
ple for Integral Facilities.
nmissioner Hillgren stated that just because they are separated by
ress doesn't mean they are not integral. If you have two facilities ti
up to more than seven within whatever our defined radius is, that
is an integral facility. I think it ties to whatever our radius agreement
:rever that comes out. When it adds up to seven, looking at c
nitions that becomes integral, and that is where I think we ought to
lying our program.
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iairman Hawkins noted the current proposal is broader than that. TI
not a segmenting or distancing requirement so that you fall out. If tl
a two facilities within 2,000 feet of each other, under the current prop
d they are functioning as one, then they get kicked into an inte
;ility. I think you get more regulation that way, then say if the
;ilities are separated by 300 -feet then they are integral but if they
Nn that 300 -foot radius or other radius, they are integral. I think
)uld lose your regulatory punch with including a radius.
imissioner Hillgren noted he supports regulation, but we need to
final and defensible in this. Part of our responsibilities is protecting
cents and part of it is protecting valid good businesses within
munity. I think it becomes integral when it is within the radius, of
get beyond that it becomes a question, in my mind.
irman Hawkins answered the radius is going to prohibit. In otl
is, you have two facilities of the same type within the radius, one
n is going to be barred. I'm not sure that radius doesn't do exactly wl
are talking about.
nmissioner Peotter suggested leaving it vague so that if two fac
operating as one within the City limits, they are considered
ulated as though they were a single unit. In addition to that
3uage that any two that are owned by the same owner within 300
they are automatically considered to be operating as one unit.
man Hawkins noted if there is a distancing requirement, it beci
and one of those facilities will become illegal and they can't do it.
sioner Toerge asked for a vote and suggested anywhere in
zone, seven or more is integral. A radius in this concept
irman Hawkins explained that if you have two within the radius,
;n't matter if they are by the same owner or not, if you are establishi
is and you got two, then one of them is out of there. That's my point.
ioner Hillgren noted it is integral when you have a
owner.
Hawkins answered that is the current regulation, which
in the City, which I think you get more regulation.
Hillgren noted he does not disagree and will leave it up
)mmissioner Cole noted the definition in the proposed ordinance de
egral facilities already. There was some suggested language
irifies it more. Are you asking for a different concept? My understar
the concept is that integral facilities has a definition already in place.
Hawkins answered that neither of them have a numerical limit.
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c you need one. Commissioner Hillgren's concern is that we need
a some scope over which we are going to consider facilities
3tituting an integral unit. We can say an owner can operate five witl
City so long as they are not within that same zone, or whatever. Y
t want to unfairly restrict people. So, within some distance it is okay
rate another facility, say 1,000 or 2,000 feet, something like that.
issioner McDaniel asked to hear from counsel.
Ir. Harp noted that the issue is that we basically didn't put a number in fo
re integral facilities. The way integral facilities works is if you have twe
tensed facilities working together then we consider that integral.
hairman Hawkins is saying you could have one that is licensed for three
nd one licensed for two so you are not getting over seven. He would like
r add a number in there to say basically there are two acting together tha
;overseven.
Hawkins noted it makes it consistent with the tables.
Marshall added that in the preliminary definitions that are basic
ything. It describes how they are operated together. Then you get
residential care facilities definitions and the general is 7 or mo
ding integral facilities. That is where the 7 shows up and those, if th(
operated integral and they get over 7 then they are prohibit(
ywhere except the multi - family zone. It includes licensed 6 or under,
are combined with a licensed 7 or more it's going to be an integr
ty and will have to go to the multi - family zone. You have to look he
are operating together because that is what creates the commerci
ict in the residential zone. You can't just look at who owns them,
are operated completely separately with one owner, that is not
mercial impact. It is the integration that makes it more commercial.
man Hawkins asked there is no impact of being operated two small
in an integrated way, right?
Marshall answered yes. If it is unlicensed whether it is two, three
integrated or not, it can only be in certain districts and it needs a L
nit. If it is under the same owner it is integral but also has be opera
:ther. If it is truly separate and is just owned by Mr. Smith, then tf
treated as separate.
nan Hawkins noted he was under the impression that an int(
was only regulated if it were over 7. Ms. Marshall is clarifying
7 can be regulated. That is fine if that is the impact.
Marshall added it is regulated anyway whether it is integral or not.
oner Peotter noted he thought licensed facilities under 6 are
by us.
Marshall answered that is correct. The leap is that if they are licens(
)r 6 but operated jointly with another one that is integral facility with
we can regulate it. Under this proposal, it if is unlicensed under 6 y(
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require a use permit and it can't be in an R -1. We can look at
,sage of 7 or more.
missioner Eaton noted the residents maintain integral should not
:d to residential only and that integral facilities should include thi
:ies that have treatments in commercial zones. The special cour
tains that doesn't have a residential impact.
a. Marshall noted the whole theory of all of this regulation is we
gulating impacts on residential neighborhoods. If services are provi
the residential neighborhood that is what creates the impact that mZ
quasi - commercial, it's a business. If the services are provided in
,mmercial district that doesn't impact the residential neighborhood
ferently than five senior citizens who live on one block all going to
me doctor in a commercial district. That is the theory that if you
aatment outside the residential district you remove the rational for
gulation in the first place.
:)mmissioner McDaniel noted tonight's testimony is that within the
sidential areas they pick up and transport them to other areas, so there
connect between those that impact the residential area by the nature
e fact that they are two facilities that operate as one. So they a
)nnected by transportation and that seems to be a big issue that impac
e residential area. Seems like they are connected as one unit in and c
the area.
Marshall answered that you regulate that through the use
:ss by imposing conditions about pick ups, etc. You don't say
le can't go into the commercial districts for service.
mmissioner Peotter noted as he understands it you have two license(
fer 6 homes and the bus goes and picks up clients from one house an(
n goes to the other house to pick up the clients in order to transpoi
m to counseling treatment in the commercial district, we don't have
permit process for the under 6 licensed, and they would not qualify a
ng operated as one unit because they are not providing services in thei
ne combined such as counseling, eating, etc., that is what we are trying
regulate because you have these buses and vans that come into th(
ghborhoods. I think that is what we are trying to get at, how we defin(
v these guys operate as integral units, they could provide a thin
ation and still operate as one unit.
Marshall noted we are taking a big step saying that something that
acted by State Law as a 6 or under, we are going to see you
ething other than a 6 or under. I think you are pushing it too far if y(
the services are not provided there they are provided in a commerc
i. It is just a question of risk. Think of other disabilities, people wl
in single family home, those are the people who are picked up
That is why there is pick ups here because we have people wi
bilities. Those parallels will be drawn.
Hawkins stated it was suggested that if we extend it to
I districts or zones that we lose the protections because we
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ig about impacts to residential zones, that is your argument. So
going to regulate these state licensed facilities because they
tioning as a unit and impacting the residential zone.
Marshall answered yes.
Kautz added that the other theory is that there is language regardinc
alcohol and drug treatment facilities that talk about integral facilities.
i this definition, the City is essentially saying you are supposed to be
ised as an integral facility for all your facilities. You really have twelve
ale, eighteen or whatever, not just six. A lot of this is either from the
lotions or from the statute. As soon as we throw in the commercial oui
iment gets much weaker.
oner Cole favored keeping the language the way staff
(residential only).
Hillgren agreed.
Toerge favored including the commercial.
McDaniel noted he agrees with residential only.
ner Peotter favors residential only.
Eaton favors commercial.
Hawkins brought up the issue of non - conforming.
mmissioner Eaton noted the process and abatement time different
ween the ordinance proposed by staff and by residents. Staff involves
cess where the non - conformities are identified and brought to tt
mmission and the Commission ratifies those identifications. At th
nt they will have two years to process. The residents proposal was
rt with a one year abatement and not involving a listing brought to tt
s. Marshall answered the reason for the difference is because there is
ie period to apply for a conditional use and making sure everybody h:
,tice, that applies to them and the time is starting to run. If it just rui
m the date of the ordinance, don't forget it covers all non- conformir
es. You have somebody who needs to apply for a conditional use ar
ay don't realize it applies to them because they think it only applies
pup homes because that is what is in the newspaper. The idea was
to notice and give the people an opportunity to be heard. It is more wo
d time and expense for the City but we were trying to balance the righ
the property owners not to be abated without knowing they were subje
it.
iairman Hawkins noted one of the rationale for creating the overlay zo
this over - concentration. So can't we make that finding?
Marshall answered you were going the other way having the
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based on lot size to be broader.
>. Kautz added that it is giving people notice that they are n
nforming and giving them the opportunity to argue about that. 7
rden of proof is on them to prove they were legal before. This is serk
e process and taking issues for the City and when you amortize the i
when people make the taking arguments. People can also argue t
;y need more than two years through reasonable accommodation or
onomic argument.
Eaton noted two years at a minimum is necessary.
Peotter favors staff recommendation.
Cole favors staff recommendation.
McDaniel favors staff recommendation.
Toerge favors staff recommendation.
Hillgren favors staff recommendation.
Marshall stated that the over - concentration issue is applied on a gc
vard basis. In the citizen's proposal it is applied to existing uses.
Ts proposal they come in to apply for a use permit with all
ditions except one per block. The reason it is that way is the idea t
i would have to choose between existing ones, which one is going to
ded if you are violating the spacing requirement. It seemed way
ch potential for a taking issue and a discrimination issue. The citizE
posal says you will apply that but it doesn't say how. You should I
)ut that.
rman Hawkins stated if the distancing requirement is greater than
as staff has suggested, then that taking issue expands, right?
Marshall answered yes.
issioner Toerge suggested he would like more information on
such as how to choose, etc. otherwise we could be cre
nent and people are not going to move. I don't want to E
ling we just can't do so we need more input from staff.
ssioner McDaniel said he would like more input as well before
a recommendation.
Cole agreed.
Peotter agreed.
Eaton agreed they need more information.
nmissioner Hillgren noted if these group homes were good neighbo
wouldn't be trying to regulate with land use issues. Is there any oth
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to regulate or manage what is going on?
Harp answered there are other ways to regulate some of the impacts.
instance you could increase regulations on outdoor smoking, other;
you can apply city -wide.
hairman Hawkins suggested that staff look at other ways of regulating.
e asked if there were other issues.
ier Peotter noted the residents brought up the issue
of licensed and unlicensed units.
o. Marshall said the latest residents' proposal does not incl
fistration of small licensed. Their proposal is to register everything
it is not protected by State Law. It is the same facially discrimina
,ue that it only applies to this particular use and added we can get sc
this information in another way and it was pointed out that through
siness permits we can get it.
Harp added that a lot of the same information would be obtained
ing the business licenses which would apply to each facility. While it
a registration requirement, that same information is logged in &
mer. Almost all of these uses are going to need use permits except 1
ones that are licensed by the State.
iissioner Peotter asked how the City uses code enforcement to
small unlicensed facilities?
Harp answered that typically code enforcement is a complaint dri\
am. If we receive a complaint that a property may be suspected
;r being a boarding house or some other current illegal use
stigation is formed to determine what the use of that property is a
an analysis is done on whether they are violating the code and if
m is taken through one of the remedies.
Peotter asked how many of the homes should be licensed.
Marshall noted that is one of the biggest areas of abuse, homes
ild be licensed aren't. They are doing detox and they should
ised. That is a different procedure; they would be reported to the S
the State would enforce and they do.
rman Hawkins noted if we pass this ordinance, they could also
lated by the City, correct?
Marshall answered they would become an illegal use subject
:diate abatement because they require a license and they don't h<
id Kiff, Assistant City Manager, stated the approach on all int
Jential uses and nuisances is not merely complaint driven though
helpful; it wouldn't be the only tool used.
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"Planning Commission Minutes 08/23/2007
nmissioner Peotter stated if we have active code enforcement and
these unlicensed facilities into the use permit process, it would allevi
problem. An additional requirement for registration is not necessary.
Eaton, Cole, McDaniel, Toerge and Hillgren agreed.
�ioner Eaton noted the residents group had suggested addii
that could be made for both reasonable accommodations
gal use permits. He suggested staff look at those issues.
r. Harp noted the current proposal is to allow under 6 unlicensed facilities
R -1.5, R -2 and MFR. The question is allowing those in R -1.5 and R -2.
sff can get statistical information on how much area in the City is
ailable for R1.5 and R -2 and MFR.
>mmissioner Eaton noted if we can't allow the 6 or less to even apply i
3 R -1.5 and R -2, then we are being overly restrictive. We have discretio
those conditions at the hearing and we need to continue to allow ther
at least apply in the R1 -5 and R -2.
Peotter favors further restriction in R -1.5 and R -2.
Cole favors no further prohibiting.
missioner McDaniel favors no further prohibiting.
issioner Toerge favors prohibiting them in R -1.5 and R -2.
Hillgren favors no further prohibiting.
on was made by Commissioner Toerge and seconded
missioner Peotter to continue this item to September 6th and
come back with an outline of the items discussed and results of
>. To the degree there are other issues, they prepare a suc
)arison of choices.
)wing a discussion regarding the holiday it was decided to continue
to September 20th. Special Counsel agreed they would be avail,
date. The maker of the motion agreed to the date change.
Hawkins,
None
and Hillgren
ADDITIONAL
BUSINESS
City Council Follow -up - Mr. Lepo noted the appeal that was filed
333 Bayside was withdrawn; Council directed the applicant of
AERIE project to re- design the project and use the 50.7 feet ab
mean sea level originally proposed by staff as the predominant
of development on the bluff face. Discussion continued on
Council deliberation of this item. The Newport Beach Brem
Company resolution is to be re- worked and brought back
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"Planning Commission Minutes 08123/2007
Report from Planning Commission's representative to the Ecor
Development Committee - Chairman Hawkins noted EDC was
this month.
Report from the Planning Commission's representative to #
General Plan /Local Coastal Program Implementation Committee
Commissioner Eaton noted there was a discussion of more use
allowed by right with standards and there was a discussion on not
conforming uses and structures.
Matters which a Planning Commissioner would like Staff to report
at a subsequent meeting - none.
Matters which a Planning Commissioner may wish to place on
future agenda for action and staff report - none.
Project status - none.
Requests for excused absences - none.
ENT: 11:00 p.m.
BRADLEY HILLGREN, SECRETARY
CITY OF NEWPORT BEACH PLANNING COMMISSION
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