HomeMy WebLinkAboutMaterials Rec'd After PacketFrom: robert rush [ mailto:rrush @usrealtygroup.com]
Sent: Wednesday, June 02, 2010 1:30 PM
To: rhawkins @earthlink.net; emcdaniel @sunwestbank.com; cwunsworth @roadrunner.com;
eaton727 @earthlink.net; BHillgren @HighRhodes.com; scott.peotter @taxfighter.com;
strataland @earthlink.net; Mulvihill, Leonie; Rowen, Kyle; Olson, Gaylene; Alford, Patrick; Lepo, David
Cc: Henn, Michael; Kiff, Dave
Subject: June 3rd Planning Com Hearing - Morningside Zoning Agreement Recommendations
On June 3rd you will be hearing the matter of the Morningside Zoning Agreement, which is for the Public Benefit.
But there are some areas in this Draft that
need to be improved upon and can be by incorporating the following recommendations, as respectfully submitted
herein:
1) IMPROVED COMPLIANCE VERIFICATION:
a) The Morningside Agreement provides no meaningful, independent verification of "Client Caps" by
the City. The Agreement proposes the City only inspect Rehab
Facilities during business hours, when "Clients" are out of the house and relies upon extensive
secondary and labor intensive techniques to verify compliance after
the semi - annual rehab reports are received. The Agreement ignores "Bed Count" leaving Rehabs free
to stack as many beds in a home as they want, without risking
non - compliance. "Clients" pay up to $20,000 /mo for bed, food & therapy. A Rehab adding 1 extra
"Client" over "Cap" at its 6 facilities can raise over $120,000 /mo
more revenue or over $1 million /year — great incentive to violate "Client Caps." This becomes
especially problematic since the periodic Morningside - generated
reports, required by the City, don't appear easily or frequently validated once received, which is only a
scant 2 times per year.
Attempting to control the City's exposure to rehab over - concentration using a singular measuring
criteria such as "Clients" or "Beds," presents serious shortcomings
related to independently and meaningfully verifying compliance, but a simple combination of criteria
(dual criteria approach) can easily solve the dilemma. Combining
the two most agreed -upon and recognizable criteria to form "Client- Beds" (Operator would have a 36
Client cap and 36 Bed cap) would solve the problem to obtaining
meaningful and independent verification (when you can't verify bodies - verify beds, etc). The
Community, who wants assurance "Caps" are adhered to, benefits, as
does the City via reduced Enforcement man -hours that, in the absence of dual criteria approach, would
be needed to follow -up using alternate, labor intense methods.
b) Streamlining Compliance Reporting /Monitoring— Morningside's Exhibit 1: Operational Conditions
spans 4 pages, however, Exhibit 3 Compliance Report Template
that is required to be filed with the City (only 2 times /year) only addresses 1 criteria, Bed Count or
Client Count — doesn't make sense. Why not create a Compliance
Matrix Checklist that Operators would file QUARTERLY (compliance is critical month -to- month, but
quarterly filing would suffice) using Operational Conditions detailed
in Exhibit 1. Rehabs fill -out or check -off the columns and boxes and submit — Code Enforcement verifies
against City records and quarterly random sites inspections.
21 TRIGGERING MOST FAVORED NATION CLAUSE:
"Person Per Bedroom" clause (Page 18/25, Item 16, attached)" gives Morningside a 50% operational
advantage in bed count verbedroom over SLBTS and will trigger
the "Most Favored Nation" clause in SLBTS Zoning Agreement (Page 14/19, attached). In trying to
address "Total Bed Count," SLBTS's "Most Favored Nation" clause,
Provision A, was inarticulately worded and misconveys its intent. Instead is written in generality, stating
"an allowance of a percentage increase in bed counts greater
than 30% above the number operated by the Operator at the time of the agreement." If SLBTS argued
Morningside got an operational advantage of a 50% increase
in bed count operated per room — they'd be correct and so it will trigger the Most Favored Nation clause
resulting in more debate on impact and more City legal costs.
Illustrated: For 36 "Clients" SLBTS rents 18 bedrooms vs Morningside's 12 bedrooms — hence the City has
created an Economic Disadvantage from Bed Counts, by
virtue of Morningside's Person Per Bedroom clause. The City should REVISE the Morningside "Persons
Per Bedroom" Clause to allow only 2 Persons Per Bedroom
consistent with SLBTS's Agreement. "Sober Living shall maintain its present policy not to allow more than
2 clients in the facilities unless the size of the structure
warrants a larger occupancy for any single bedroom." Morningside structures presently support 3
Persons Per Bedroom and the Revised Language allows for that.
Bob Rush
Community Member
(EXHffiIT "A")
ZONING IMPLEMENTATION
AND PUBLIC BENEFIT AGREEMENT
(Pursuant to California Government Code §§ 65864- 65869.5)
This Zoning Implementation and Public Benefit Agreement (the "ZONING
AGREEMENT ") is entered into on 12010, by and between the
CITY OF NEWPORT BEACH, a charter city ( "CITY ") on the one hand, and
MORNINGSIDE RECOVERY, LLC, ( "MORNINGSIDE ") on the other. The
CITY and MORNINGSIDE are collectively referred to as the "PARTIES."
I.
Recitals
A. The City Council hereby finds this ZONING AGREEMENT is
consistent with the provisions of California Government Code §65867, the City of
Newport Beach Municipal Code Chapter 15.45, and the City's General Plan.
B. On .2010. the City's Planning Commission held a
public hearing on this ZONING AGREEMENT, made findings and
determinations with respect to this ZONING AGREEMENT, and recommended to
the City Council that the City Council approve this ZONING AGREEMENT.
C. On , 2010, the City Council also held a public hearing
on this ZONING AGREEMENT and considered the Planning Commission's
recommendations and testimony and information submitted by City staff,
MORNINGSIDE, and members ofthe public. On 2010, pursuant to
applicable state law (California Government Code §§ 65864 - 65869.5) and local
law (City ofNewport Beach Municipal Code Chapter 15.45), the City Council
passed its Ordinance No. finding this ZONING AGREEMENT to be
consistent with the City ofNewport Beach General Plan and approving this
ZONING AGREEMENT.
II.
Definitions
The following terms when used in this ZONING AGREEMENT shall have
the meanings set forth below:
A. "BLOCK" shall mean an area that is bounded on all sides by streets.
In the Peninsula Zone, a BLOCK length is 617 feet, which is the calculable
median block length within the City ofNewport Beach's Nonstandard Subdivision
Areas.
B. "CITY" shall mean the City ofNewport Beach and its City Council.
C. "CLIENT" (or "CLIENTS ") shall mean any persons residing at any
MORNINGSIDE FACILITY for the purpose ofrecovering from drug and /or
alcohol abuse.
D. "CONTROL" (including the terms "controlling," "controlled by,"
and "under common control with, ") shall mean the possession, direct or indirect,
ofthe power to direct or cause the direction ofthe management and policies ofa
person, whether through the ownership of voting securities, by contract, or
otherwise.
E. "FACILITY" (or "FACILITIES ") is a residential unit used or
occupied by persons in recovery from alcoholism and /or drug abuse. Facilities
may be "licensed facilities" or unlicensed "sober living homes." As used in this
AGREEMENT, all facilities constitute "residential care facility" uses within the
context ofthe City's zoning ordinance.
D. "GENERAL PLAN" shall mean the 2006 General Plan adopted by
the City Council on July 25, 2006, by Resolution No. 2006 -76. The Land Use
Plan ofthe Land Use Element ofthe General Plan was approved by Newport
Beach voters in a general election on November 7,2006.
E. "LICENSED FACILITIES" shall mean alcoholism and drug abuse
recovery facilities licensed by the California Department of Alcohol and Drug
Programs ( "ADP ").
F. "PARTY" or "PARTIES" shall mean either the CITY or
MORNINGSIDE or any ofMORNINGSIDE's affiliates or both, as determined by
the context.
G. "PROPERTY" or "PROPERTIES" shall mean MORNINGSIDE's
facilities at 112 39th Street, 4823 A River Avenue, 4823 B River Avenue, 5015 A
River Avenue, 5015 B River Avenue, and 29 Ima Loa Court in Newport Beach.
Additionally, this AGREEMENT may apply to parcels not yet identified upon
which MORNINGSIDE may operate facilities pursuant to this AGREEMENT in
the future.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 2
H. "SOBER LIVING HOMES" shall mean alcoholism and /or drug
abuse recovery facilities that are not licensed by the ADP.
I. "7- and - OVER" shall mean any FACILITY licensed by the ADP to
house more than 7 persons in recovery for drug and/or alcohol abuse.
III.
Agreement
A. Terms ofAgreement.
This ZONING AGREEMENT allows MORNINGSIDE a vested right to
the following:
1.) MORNINGSIDE may operate FACILITIES housing up to thirty -
six (3 6) CLIENTS in Newport Beach pursuant to certain
operational guidelines described more particularly in Exhibit
attached hereto. Except as described in Section A (3), below,
MORNINGSIDE may not exceed 36 CLIENTS in Newport
Beach.
2.) MORNINGSIDE may house up to 30 ofits 36 total CLIENTS in
the Newport Beach "Peninsula Zone." The Peninsula Zone is
more particularly defined in Exhibit "2" attached hereto;
3.) MORNINGSIDE can exceed its 36 CLIENT maximum only by
acquiring 7- and -OVER FACILITIES that have obtained use
permits under Chapter 20.91A ofthe Newport Beach Municipal
Code.
4.) MORNINGSIDE shall conduct its OPERATIONS in Newport
Beach in conformance with the Operational Guidelines attached
hereto as Exhibit "1."
5.) MORNINGSIDE will comply with the following dispersal and
distancing requirements for its FACILITIES in Newport Beach:
a. Only one (1) treatment home or sober living facility (licensed
or unlicensed by ADP) is allowed per BLOCK, and no
FACILITIES facing each other;
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
b. No FACILITIES (licensed or unlicensed by ADP) within
1000 feet ofelementary schools or large, licensed day -care
facilities.
B. Significant Public Benefits. The significant public benefits that this
ZONING AGREEMENT provides include, but are not limited to, the following:
1.) Settlement and avoidance of litigation costs, including the
continued expenditure of attorneys' fees;
2.) Preservation ofthe regulatory ordinance that was the subject
matter ofthis lawsuit;
3.) Avoidance ofpotential federal administrative proceedings;
4.) A reduction and limitation on the size of residential care
operation in Newport Beach, including a limitation on
LICENSED FACILITIES;
5.) Dispersal ofLICENSED FACILITIES and SOBER LIVING
HOMES to reduce the concentration thereof in the City's
residential districts;
6.) The placement of operational controls on said FACILITIES to
reduce the perceived negative impacts on the City's residential
neighborhoods;
C, General Plan Consistency and Zoning Implementation. This
ZONING AGREEMENT and the regulations applied herein to MORNINGSIDE
will cause the City ofNewport Beach's zoning and other land use regulations to
remain consistent with the GENERAL PLAN.
D. Warranties and Representations. Both PARTIES represent they
have legal authority to enter into this ZONING AGREEMENT and the remainder
ofthe agreements and documents that comprise the settlement documents herein,
and that the necessary authorizations have been obtained, by resolution or other
action, and that the persons whose names appear as signatories below were
authorized to accept this ZONING AGREEMENT on behalfofthe PARTY under
whose name they signed.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 4
1.) Each PARTY specifically represents and warrants that it has the
legal authority to enter into a ZONING AGREEMENT ofthe
type and kind herein, and,
2.) The City ofNewport Beach represents and warrants that this
ZONING AGREEMENT and the regulations applied to
PROPERTY are:
a. Consistent with the GENERAL PLAN for the City of
Newport Beach and any Specific Plans that apply to the area
in which any portion ofMORNINGSIDE's PROPERTIES
are located, and;
b. Consistent with the Local Coastal Land Use Plan ( "CLUP ")
for the City ofNewport Beach and that the CLUP has been
approved by the California Coastal Commission.
E. Operation ofproperty; Applicable Reeulations. Other than as
expressly set forth in this ZONING AGREEMENT, during the term ofthis
ZONING AGREEMENT, the terms and conditions concerning the operation of
the PROPERTIES, including but not limited to the permitted uses, density,
intensity ofuse, and the location of buildings involved, shall be those set forth in
the City ofNewport Beach's ordinances and regulations, and the City ofNewport
Beach shall not prevent operation ofthe PROPERTIES in compliance with the
applicable regulations and all other applicable laws and regulations in Section I,
below.
F. Vested Rights. During the term ofthis ZONING AGREEMENT,
except to the extent the City ofNewport Beach reserves its discretion as expressly
set forth in this ZONING AGREEMENT or in the applicable regulations and all
other applicable laws and regulations specified in Section I, MORNINGSIDE
shall have the vested right, within the limits and constraints ofthe applicable
regulations, to conduct OPERATIONS ofLICENSED FACILITIES and SOBER
LIVING HOMES at its PROPERTIES. In the event Ordinance 2008 -5 is repealed
by action ofthe City Council ofthe City ofNewport Beach or the electorate, or if
a court ofcompetent jurisdiction declares the Ordinance invalid or unenforceable,
this AGREEMENT shall remain in full force and effect.
G. Police Power. In all respects not provided for in this ZONING
AGREEMENT, the City ofNewport Beach shall retain full rights to exercise its
police power to regulate the operation ofresidential care facilities on the
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
PROPERTIES provided such powers are applied consistently with the provisions
of state law and the terms ofthis AGREEMENT.
H. No Conflictine Enactments. During the term ofthis ZONING
AGREEMENT the City ofNewport Beach shall not apply to the PROPERTIES
any City- adopted ordinance, policy, rule, regulation, or other measure relating to
OPERATION ofthe FACILITIES to the extent it conflicts with this ZONING
AGREEMENT.
I. Reservations ofAuthority. Notwithstanding any provisions set forth
in this ZONING AGREEMENT to the contrary, the laws, rules, regulations, and
official policies set forth herein shall apply to and govern OPERATIONS at the
PROPERTIES:
1.) Procedural Regulations. Then current procedural regulations
relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations, appeals,
and any other matter ofprocedure shall apply to the PROPERTY,
provided that they are adopted and applied Citywide.
2.) Consistent City Regulations. Newport Beach City ordinances,
resolutions, regulations, and official policies governing
development and building that do not conflict with the
AGREEMENT, or where MORNINGSIDE has consented in
writing to the regulations, shall apply to the PROPERTIES.
3.) Public Health and Safety. Any Newport Beach City ordinance,
regulation, rule, program, or official policy of general application
that is necessary to protect persons on the PROPERTIES or in
the immediate community from conditions dangerous to their
health or safety, shall apply to the PROPERTIES. The City of
Newport Beach may unilaterally enact any ordinance, regulation,
rule, program, or official policy ofgeneral application necessary
to protect persons from conditions dangerous to their health of
safety.
J. No Agency. Neither PARTY is acting as the agent ofthe other in
any respect. Each PARTY is an independent contracting entity with respect to the
terms, covenants, and conditions contained in this ZONING AGREEMENT. This
ZONING AGREEMENT forms no partnership, joint venture, or other association
ofany kind. The only relationship between the PARTIES is that ofa government
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 6
entity regulating the operation of private property by the owner or lessee ofthe
property.
K. Effective Date. This ZONING AGREEMENT shall not become
effective, and except as set forth in subsection (1) ofthis Section, neither PARTY
shall have any rights or obligations hereunder, until the "Effective Date."
1.) This ZONING AGREEMENT shall become effective on:
a. The 91'1 day following the City Council ofthe City of
Newport Beach's passage ofthe ordinance approving this
ZONING AGREEMENT, or
b. Ifa referendum or other elective challenge to the ordinance
approving this ZONING AGREEMENT qualifies for the
ballot, then on the 31,1 day after the City Clerk ofthe City of
Newport Beach certifies that the referendum or other
elective challenge has failed to pass, or
C. I f litigation is initiated to challenge this ZONING
AGREEMENT prior to the Effective Date established in
accordance with Section K (1) (a), and (b), above, then on
the 31,t day after the litigation has terminated, or the time
for appeal has expired, and the legal challenge has been
unsuccessful.
2.) The term ofthis ZONING AGREEMENT shall commence on
the Effective Date and shall expire at the conclusion ofthe 25th
year thereafter. However in no event shall the term ofthis
ZONING AGREEMENT exceed thirty (30) years after its
execution.
3.) Stay of Ordinance 2008 -5 Pending Effective Date. Prior to the
effective date ofthe ordinance adopting this ZONING
AGREEMENT, or that date upon which it becomes clear that
there will be no Effective Date, whichever is later, the CITY
shall not otherwise enforce the provisions ofOrdinance 2008 -5
against MORNINGSIDE or its AFFILIATES.
L. Amendment or Cancellation ofthe Zoning Agreement. Other than
modifications ofthis ZONING AGREEMENT under section I subsection (3) of
this ZONING AGREEMENT, this ZONING AGREEMENT may be amended or
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
cancelled in whole or in part only by mutual written and executed consent ofthe
PARTIES in compliance with California Government Code section 65868, and
City ofNewport Beach Municipal Code section 15.45.070.
M. Enforcement. Unless amended or cancelled as provided in Section
L, above, or modified or suspended pursuant to California Government Code
section 65869.5, this ZONING AGREEMENT is enforceable by either PARTY
despite any change in any applicable GENERAL PLAN or Specific Plan, zoning,
subdivision, or building regulation, or other applicable ordinance or regulation
adopted by the City (including by the City's electorate,) that purports to apply to
any or all ofthe PROPERTIES.
N. Periodic Review ofCompliance. CITY and MORNINGSIDE shall
each comply in good faith with the terms of this ZONING AGREEMENT. The
PARTIES shall review this ZONING AGREEMENT at least once every 12
months from the Effective Date for good faith compliance with its terms,
consistent with Government Code sections 65865 and 65865.1 and City of
Newport Beach Municipal Code section 15.45.080. At the reviews,
MORNINGSIDE shall document the current status of its OPERATIONS.
MORNINGSIDE also agrees to furnish evidence of good faith compliance with
this AGREEMENT as the CITY may require in the reasonable exercise of its
discretion, and after reasonable notice to MORNINGSIDE. On or before
December 31,t and June 30"' of each year during the term of this ZONING
AGREEMENT, MORNINGSIDE shall submit a Compliance Review Report,
whose template is attached hereto as Exhibit "3." The requirement ofgood faith
compliance shall be met upon the submittal to the CITY of an accurate
Compliance Review Report showing information relating to facility locations and
the number ofCLIENTS at each MORNINGSIDE FACILITY. The CITY shall
have the right to audit the accuracy ofthe Compliance Review Report through the
on -site inspections ofMORNINGSIDE's FACILITIES at mutually agreeable
times during regular business hours.
O. Events ofDefault.
1.) Default by Morningside. Pursuant to California Government
Code section 65865.1, if the CITY determines that
MORNINGSIDE has not complied in good faith with its
obligations pursuant to this ZONING AGREEMENT, the CITY
shall by written notice to MORNINGSIDE specify the manner in
which MORNINGSIDE has failed to comply and state the steps
MORNINGSIDE must take to bring itself into compliance. If
MORNINGSIDE does not commence compliance within thirty
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
(30) days after receipt ofwritten notice from the CITY
specifying the manner in which MORNINGSIDE has failed to
comply and diligently pursue steps to achieve full compliance,
then MORNINGSIDE shall be deemed to be in default under the
terms ofthis ZONING AGREEMENT. The CITY may then
seek available remedies as provided in subsections (3) and (4),
below.
2.) Default by City. Ifthe CITY has not complied with any of its
obligations and limitations under this ZONING AGREEMENT,
MORNINGSIDE shall by written notice to the CITY specify the
manner in which the CITY has failed to comply and state the
steps necessary for the CITY to bring itself into compliance. If
the CITY does not commence compliance within thirty (30) days
after receipt ofthe written notice from MORNINGSIDE
specifying the manner in which the CITY has failed to comply
and diligently pursue steps to achieve full compliance, then the
CITY shall be deemed to be in default under the terms of this
ZONING AGREEMENT. MORNINGSIDE may then seek a
specific performance or similar equitable remedy as provided in
subsection (3) of Section 0, below.
3.) Specific Performance and Damages Remedies. The PARTIES
acknowledge that remedies at law are generally inadequate and
that specific performance is appropriate for the enforcement of
this ZONING AGREEMENT. The remedy of specific
performance or, in the alternative, a writ ofmandate, shall be the
sole and exclusive remedy available to either PARTY in the
event of the default, or alleged default, by the other. Prior to
exercising such a remedy, the PARTY seeking to do so shall
submit the matter to non - binding arbitration through JAMS or
another mutually acceptable arbitrator.
4.) Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding between the PARTIES that seeks to
enforce the provisions of this ZONING AGREEMENT, the
prevailing party shall recover all of its actual and reasonable
costs and expenses. These costs and expenses shall include
expert witness fees, attorneys' fees, and costs of investigation
and preparation before the initiation of the action. The right to
recover these costs and expenses shall accrue upon initiation of
the action.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7
P. Cooperation. Each PARTY covenants to take all reasonable actions
and execute all documents that may be necessary to achieve the purposes and
objectives ofthis ZONING AGREEMENT.
Q. Force Majeure. Neither PARTY shall be deemed to be in default
where failure or delay in performance of any of its obligations under this ZONING
AGREEMENT is caused, through no fault ofthe PARTY whose performance is
prevented or delayed, by floods, earthquakes, other acts of God, fires, war, riots or
other hostilities, strikes or other labor hostilities, state or federal regulations, or
court actions.
R. Third Party Legal Challenge. Ifa third party brings a legal action
challenging the validity or enforceability of any provision ofthis ZONING
AGREEMENT or the applicable regulations or the manner in which the ordinance
approving this ZONING AGREEMENT was processed and approved, including
the application ofthe California Environmental Quality Act ( "CEQA ") to that
process, the PARTIES shall defend the third party challenge jointly, and each
party shall be responsible for its legal expenses incurred in connection with the
challenge, except that either or both parties may seek recovery of all legal
expenses from the third party challenger.
S. Right to Assign. MORNINGSIDE shall have the right to transfer or
assign the rights and obligations contained herein in whole to any person,
partnership, joint venture, firm, or corporation at any time during the term ofthis
ZONING AGREEMENT without the consent ofthe CITY. Upon the effective
date of any such transfer or assignment, the transferor - assignor shall notify the
CITY ofthe name and address ofthe transferee. Any assignment ofthis ZONING
AGREEMENT must be pursuant to a sale or transfer ofMORNINGSIDE's rights
in their entirety. Any sale or transfer ofthe PROPERTY shall include the
assignment and assumption ofthe rights, duties, and obligations arising from this
ZONING AGREEMENT to the transferee with respect to all ofthe
PROPERTIES. MORNINGSIDE shall no longer be obligated under this
ZONING AGREEMENT for the PROPERTY ifMORNINGSIDE is not in default
under this ZONING AGREEMENT at the time ofthe sale or transfer.
T. Zoning Agreement Binding on Successors and Assigns. The
burdens ofthis ZONING AGREEMENT are binding upon, and the benefits ofthis
ZONING AGREEMENT shall inure to, all successors in interest ofthe parties to
this ZONING AGREEMENT.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 10
U. Estoppel Certificate At any time, either PARTY may deliver
written notice to the other PARTY that the PARTY certify in writing that, to the
best of its knowledge:
1.) This ZONING AGREEMENT is in full force and effect and is
binding on the PARTY;
2.) This ZONING AGREEMENT has not been amended or
modified either orally or in writing. Ifthis ZONING
AGREEMENT has been amended, the PARTY providing the
certification shall identify the amendments; and,
3.) The requesting PARTY is not in default in the performance of its
obligations under this ZONING AGREEMENT. Ifthe
requesting PARTY is in default, the other PARTY must describe
the nature ofthe default.
The requesting PARTY shall execute and return the certificate within sixty
(60) days following receipt. Any assignee ofa PARTY's rights and obligations
hereunder, as referred to in this Section, shall be entitled to rely on the certificate.
V. Further Actions and Instruments. Each PARTY shall cooperate with
and provide reasonable assistance to the other PARTY to the extent consistent
with and necessary to implement this ZONING AGREEMENT. Upon the request
ofa PARTY at any time, the other PARTY shall promptly execute, with
acknowledgement or affidavit ifreasonably required, and file or record the
required instruments and writings and take any actions as may be reasonably
necessary to implement this ZONING AGREEMENT or to evidence or
consummate the transactions contemplated by this ZONING AGREEMENT.
W. Notices. Any notice or demand that shall be required or permitted
bylaw or any provision of this ZONING AGREEMENT shall be in writing. Ifthe
notice or demand will be served upon a PARTY, it shall be personally served to
the PARTY; deposited in the U.S. Mail, certified, return receipt requested, and
postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or
demand shall be addressed as follows:
To City: City ofNewport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 11
Attn: City Manager
Fax: 949-644-3020
With a copy to: City Attorney
City ofNewport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
To Operator: Momingside Recovery, LLC
3404 A Via Lido
Newport Beach, California 92663
(949) 675 -0006
With a copy to: Mary Helen Beatificato
Beatificato & Associates, APC
28562 Oso Parkway, Ste. D -424
Rancho Santa Margarita, California
92688
Either PARTY may change the address stated in this Section by notice to
the other PARTY in the manner provided in this Section, and notices shall be
addressed and submitted to the new address. Notice shall be deemed to be
delivered upon the earlier of (a) the date received; or (b) three business days after
deposit in the mail as provided above.
X. Rules of Construction and Miscellaneous Terms.
I.) Rules ofConstruction. The singular includes the plural; the
masculine and neuter include the feminine; "shall" is mandatory;
"may" is permissive.
2.) Time is ofthe essence. Time is ofthe essence regarding each
provision ofthis ZONING AGREEMENT in which time is an
element.
3.) Waiver. Failure by a PARTY to insist upon the strict
performance of any ofthe provisions of this ZONING
AGREEMENT by the other PARTY, and failure by a PARTY to
exercise its rights upon a default by the other PARTY, shall not
constitute a waiver ofthat PARTY's right to demand strict
compliance by the other PARTY in the future.
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 12
5.) Counterparts. This ZONING AGREEMENT may be executed in
two or more counterparts, each ofwhich shall be identical and
may be introduced in evidence or used for any other purpose
without any other counterpart, but all ofwhich shaH together
constitute one and the same ZONING AGREEMENT.
6.) Entire Agreement. Except for the Settlement Agreement, this
ZONING AGREEMENT constitutes the entire agreement and
supersedes all prior agreements and understandings, both written
and oral, between the PARTIES with respect to the subject
matter addressed in this ZONING AGREEMENT.
7.) Construction. This ZONING AGREEMENT has been drafted
after extensive negotiation and revision. Both the CITY and
MORNINGSIDE are sophisticated parties who were represented
by independent counsel throughout these negotiations. The
CITY and MORNINGSIDE each agree and acknowledge that the
terms of this ZONING AGREEMENT are fair and reasonable,
taking into account their respective purposes, terms, and
conditions. This ZONING AGREEMENT shall therefore be
construed as a whole consistent with its fair meaning, and no
principle or presumption of contract construction or
interpretation shall be used to construe the whole or any part of
this ZONING AGREEMENT in favor of, or against, either
PARTY.
8.) No Third Party Beneficiaries. The only parties to this ZONING
AGREEMENT are the CITY and MORNINGSIDE. This
ZONING AGREEMENT does not involve any third party
beneficiaries, and it is not intended and shalt not be construed to
benefit or to be enforceable by any other person or entity.
9.) Applicable Law and Venue. This ZONING AGREEMENT shall
be construed and enforced consistent with the internal laws ofthe
State of California. Any action arising under this ZONING
AGREEMENT or brought by any PARTY for the purpose of
enforcing, construing, or determining the validity of any
provision ofthis ZONING AGREEMENT shall be filed and tried
in the Superior Court of the County of Orange, State of
California, or the United States District Court for the Central
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 13
District ofCalifornia. The PARTIES waive all provisions of law
providing for the removal or change of venue to any other court.
10.) Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect construction or
interpretation ofthis ZONING AGREEMENT.
11.) Authority to Execute. The persons executing this ZONING
AGREEMENT warrant and represent that they have they have
the authority to execute this ZONING AGREEMENT on behalf
of the entity for which they are executing this ZONING
AGREEMENT. They further warrant and represent that they
have the authority to bind their respective PARTIES to the
performance of its obligations under the ZONING
AGREEMENT.
CITY:
CITY OF NEWPORT BEACH
In
Keith D. Curry
Title: MAYOR ofNewport Beach
MORNINGSIDE RECOVERY, LLC
C
JEFFREY YATES
Title: President
MORNINGSIDE RECOVERY. LLC
By:
CANDACEBRUCE
Title: ChiefExecutive Officer
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 14
APPROVED AS TO FORM:
By:
Leonie H. Mulvihill
Title: ACTING CITY ATTORNEY
CITY OF NEWPORT BEACH
ATTEST:
By: _
Leilani Brown
Title: CITY CLERK
CITY OF NEWPORT BEACH
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897 -7 15
Exhibit "1" to Zoning Agreement
.i City ofNewport Beach
Momingside Recovery, LLC
EXHIBIT "1"
OPERATIONAL CONDITIONS
for
MORNINGSIDE RECOVERY, LLC
Occupancy Level. The operator of Momingside Recovery, LLC, hereinafter
referred to as "Operator," is limited to housing a total of thirty-six (36) clients in
recovery from drug and alcohol abuse in the City of Newport Beach, and shall
limit occupancy ofits current facilities to the following:
a. 4823 A River Avenue - 6 client maximum
b. 4823 B River Avenue - 6 client maximum
c. 5015 A River Avenue - 6 client maximum
d. 5015 B River Avenue - 6 client maximum
e. 1123 9th Street - 6 client maximum
f. 29 Ima Loa Court - 6 client maximum
The above occupancy levels reflect a maximum of thirty (30) clients in the
Peninsula Zone and a maximum of six (6) outside of the Peninsula Zone. The
boundaries of the Penirisula Zone are more particularly defined in Exhibit "2" of
the corresponding Zoning Agreement. Operator may move clients from the above
properties into other properties but must maintain the 30 client cap in the
Peninsula Zone and 36 total client cap citywide, provided that Operator maintain
the dispersion standards in Section III A, subsections 5 (a) & (b) of the Zoning
Agreement.
2. Staffing. Operator shall have enough staff to appropriately and responsibly
manage each facility; including at least one qualified manager on -site or on -call at
all times (24 hours a day, seven days each week).
3. Governmental Referrals. Operator shall not provide any services to any client or
house any client who has been referred or caused to be referred to a Momingside
Recovery facility by any governmental agency, including but not limited to
probationers or parolees, due to the limitations that Section 509.9 ofthe California
Building Code places on Group I and R occupancies.
11287 - 0007 \1204428v1.doc
Exhibit "2" to Settlement Agreement
City ofNewport Beach
Momingside Recovery, LLC
4. Assembly Uses. Assembly uses are prohibited in these facilities, except those that
are limited solely to client residents of the facility and facility staff (and in some
cases smallmeetings ofa client's family members with facility staff).
5. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the City of Newport Beach's
Municipal Code, all other laws and best industry standards and practices.
6. Trash and Trash Enclosures. Operator shall comply with City code provisions
pertaining to trash enclosures, and if directed by the Planning Director, shall
secure and maintain commercial bin service at the subject properties. Operator
shall provide a sufficient number of plastic trash cans with sealable covers to
contain all ofthe refuse generated by the facility, which are to be used at all times.
Trash cans shall be put out for pick up no earlier than 7:00 p.m. and before 8:00
p.m. on the evening before trash collection day, and shall be put back within the
property by 6:00 p.m. on the day of collection.
7. Smoking and Tobacco Products. Per NBMC Section 20.91A.050(A), no clients,
guests, or any other users of the subject. property may smoke in an area from
which the secondhand smoke may be detected on any parcel other than the parcel
upon which the use is located. Operator shall use its best efforts to contain
secondhand smoke generated by patients, clients, customers, and staff within the
lot line of the subject property. In addition, Operator will not allow clients, staff,
or residents to litter cigarette butts on the ground, floor, deck, sidewalk, gutter,
boardwalk or street. Operator's administrators and managers shall use their best
efforts to ensure that its clients comply with the City's prohibition on clients'
tobacco use on beaches, boardwalks, and piers(NBMC §11.08.080). This
includes any meetings Morningside's clients participate in "off- site."
8. Parking. Operator shall keep garages and other parking spaces at its facilities
open and available for parking for staff, and visiting family members' vehicles,
cleaning persons' vehicles, and client transport vans at all times. Clients to the
facility are not permitted to have personal vehicles at the facility.
9. Client Transport. Operator shall ensure that loading and unloading of passengers
of the facility's transportation van shall occur only in open parking spaces or
garage spaces. The van driver is prohibited from stopping or double - parking. in a
traffic lane to load and unload passengers. In addition, client drivers shall respect
all City rules regarding parking and /or stopping and waiting to load residents.
Client transport vehicles shall not block adjacent alleys or street ends. Client
drivers shall not leave vehicles in reverse gear if reverse has an audible back -up
112870007 \1204428v1.doc
Exhibit "2" to Settlement Agreement
City ofNewport Beach
Morning-side Recovery. LLC
warning sound. Client drivers shall speak to residents at a level protective of
neighborhood peace, cognizant ofthe hour, to avoid waking neighbors.
10. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City
upon the property owner and operator.
11. Noise. Operator shall strictly adhere to the City's noise standards (NBMC-
§ 10.26.025; 10.26.030). Operator shall be responsible for minimizing clapping,
stomping, or other noises at meetings or gatherings at the subject property,
consistent with NBMC § 10.26.030.
12. Route Plans. Operator shall adhere to the Route Plans for transport of its staff,
residents, clients, and customers. The Route Plans for all Momingside facilities
are attached hereto as "Exhibit 4." Short-term interruptions, such as medical
emergencies or street maintenance beyond Operator's control, are allowable
modifications to the Route Plans.
13. Deliveries. Staff members in their private vehicles may deliver business products
and other packages and goods to the facility during weekdays between the hours
of9:00 a.m. to 5:00 p.m.
14. Hotline. Operator shall establish, provide public notice of, and operate a hotline
for receiving inquiries and/or complaints in reference to its operation ofits facility.
The phone number need not be staffed 24 hours a day seven days a week, but
callers should be responded to within the next 24 -how period. Alternatively, the
Operator shall provide area residents and the City with a contact name, phone
number, and e -mail address that is available 24 hours a day, seven days each
week. This contact shall be available to assist residents and the City with any
problems or concerns arising from the facility. E -mails or messages left for the
Operator's designated contact shall be returned promptly within a 24 -hour period
from receipt.
15. Stakeholder Group. Upon invitation by the City, Operator shall participate in the
activities of any stakeholder committee or group established by the City to address
complaints and concerns of residents of the City regarding the operation of
Residential Care Facilities in the City.
16. Persons per Bedroom. Operator shall not allow more than three clients to sleep
in one bedroom.
11287- 0007 \120442gvLdoc
Exhibit "2" to Settlement Agreement
City ofNewport Beach
Momingside Recovery, LLC
17. Building and Zoning. Operator recognizes that each of its facilities have specific
setbacks from the side yards, front yard, and/or back yards per the City's Building
and Zoning Codes. Operator will keep these setbacks clear of obstruction,
including building obstruction. The orderly storage oftrashcans is acceptable in
setbacks.
18. Facility Nuisances. The subject properties shall not be unsafe, unsightly or
poorly maintained. If Operator receives a nuisance violation from the City in
regards to any of these issues, Operator. shall correct the violation within seven
days or contact the City directly to negotiate a mutually agreeable timeline.
19.' Beaches and Other Common Gathering Areas. Operator's use of the beaches
for meetings, prayer, conversation, or other gatherings shall show due respect to
non - resident visitors, residents, and other beachgoers, thus allowing them to take
full enjoyment ofthe beach. Operator shall not conduct business on the beach (per
NBMC §10.08.030).
20. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance ofthis use permit shall not constitute a waiver ofthe
requirements of any federal, state or local law, including the requirements of the
California Building Code.
21. Affidavit of Disability. The Operator shall execute an affidavit declaring that all
clients receiving services from this facility are disabled persons, as that term is
defined by federal and state fair housing laws.
11287- 0007 \1204428v l .doe
Exhibit "2"
Depiction and Description of'Peninsula Zone"
Depiction of Peninsula Zone:
Description of Peninsula Zone:
Starting at the mouth of the Santa Ana River:
o The land area southerlybf the Newport and seminouk'Sloughs known as Newport Shores, and
o . The land coastword ofPoft Coast Highway to Newport Boulevard known as Balboa Coves, West
Newport Beach, lido Sands, and Newport Island; and
o The land southerly ofa.line extending along the Federal Navigational Channel between Newport
Boulevard and the Newport Haibor Jetty, known as the Balboa Peninsula. Lido Peninsula, Lido Isle,
Bay Island, and Cannery. Village; a " d
o Southward on Newport Boulevard. about 50 feet to Lower Newport Bay; and
• All lands southedy of Lower Newport Bay be.tween Newport Boulevard down the Federal Navigational
Channel within the Lower Bay, inclusive of Lido Isle and Bay Island and inclusive of the Balboa
Peninsula,
Exhibit" 3 'I to the Zoning Agreement
Compliance Report Template
(Date Report Submitted)
This form covers the period of (month, day) through (month, day),
20
During-the above period, Momingside Recovery, LLC, managed or controlled the following
facilities in Newport Beach:
. _.__.i3289;i067h32f3'1- _.
Morningside Recovery
Travel Routes (draft #1)
I
NOTES:
1-With! n the boundaries of the above chart, Morningside's Client Transport routes are limited the following streets, except during emergencies
or if approved routes are closed:
Balboa Boulevard
Newport Boulevard
River Avenue (only between 5V Street and Balboa Boulevard — not the section of River Ave between 45th and 32nd Street)
32"d Street
Coast Highway
2 - The General Rule for Morningside's Client Transportvans shall be that Morningside shall use major thoroughfares (Newport Boulevard and
Balboa Boulevard) whenever possible, avoiding narrow neighborhood streets such as River Avenue between 45`h and 32nd Street).
3 —Access to Morningside's facility at 112 39th Street shall be from 39`h Street, 40th Street or 381h Street, and Seashore Drive.
4 —The City and Morningside shall work cooperatively to amend these routes whenever Morningside moves a facility.
Attachment No. PC 4
Residential Care Facilities: Licensed and
Unlicensed
w
NZ
j
L _
I 1
�t
yG
m_
_qo
LL V u
Ay e
� 10
m v
� J
#6#'�dEEOdE¢¢
1��3��313
dl:F
�J�F99��a
• 3i 3
s
5f
'Aif F9
y
_L
_ ..
L _
I 1
�t
yG
m_
_qo
LL V u
Ay e
� 10
m v
� J
#6#'�dEEOdE¢¢
1��3��313
dl:F
�J�F99��a
• 3i 3
s
5f
'Aif F9
y
Zoning Agreement
Pogo 130119
(til Apply a policy directing clients or residents to avoid littering cigarette butts on the
ground, floor, deck, sidewalk, gutter, or street.
(c) Apply a policy reminding clients not to use tobacco on beaches, boardwalks, and
piers consistent with City prohibitions against smoking in those areas.
5. Sober Uving shail comply with all City code provisions requiring 011 street parking
In residential zones.
6. Sober Uving shall establish, provide public notice of and continuously operate a
24 hour per day hotline for receiving inquiries and /or complaints In reference to ils operation of
its Facilities in the City.
7. Sober Uving shall apply the foilowing Quiet Hours to its patients, clients and
customers occupying beds in ail Facilities which Sober Uving operates In the City. During these
Quiet Hours, all residents will be Inside except during emergencies:
Sunday through Thursday - 10 pm to 7 am;
Friday through Saturday - 11 pm to 7 am.
8. Sober Living shail use good faith efforts to implement the Roule Plans for
transport of its staff, residents, clients and customers which Sober Living submitted to the City
as part of its applications for Use Pennits on file with City's staff as of July, 2008. A true and
correct copy of those Route Plans are attached as Exhlb /1 F. Short-tenn interruptions, such as
medical emergencies or street maintenance which are beyond Sober Living's conk . are
allowable modifications to the Roule Plans.
9. Sober Living shail accept deliveries of goods and services to the Residential
Care Facilities which it operates in the City only during customary times for such deliveries of
goods and services to ooeur in residential areas of the Cily and in accordance with any City
regUlation adopted which controls times for such deliveries on a citywide basis applicable to all
residential properties.
10. Sober Living shall participate in the acWtiles of any stakeholder committee or
group established by the City to address complaints and concerns of residents of the City
regarding the operation of Residential Care Facilities in the City.
11 . Sober Living shall maintain its present policy not to allow more than two (2)
clients per bedroom in the facilities unless the size of the structure warrants a larger occupancy
for any single bedroom.
C. General Constraints on Regulallon.
1. Most Favored Nation. it the City enters into an agreement with any operator of a
Sober Uving Home or Licensed Facr�ty in the City which, includes one or more of the below
three provisions and provides a materially more favorable regulatory treament to that operator
than is afforded to Sober living hereunder, the more favorable regulatory provision or provisions
shall then apply to Sober Living and shail be deemed to supersede any conflicting provision or
provisions contained in this Zoning Agreement. Approvals within the Group Residential Uses
Ordinance's Use Pennit process do not constitule agreements for the pUtpOses of this
paragraph.
Zoning Agreement
Psge 14 of 19
The three provisions are:
(a) An allowance of a percentage increase greater in bed counts greater than 30%
above the number operated by the Operator at the time of the agreement;
(b) Dispersion (i.e. one building per block and no faCiides on streets facing each odwr)
less concentrated than for SLBTS under the tenns of this Agreement; and
(c) Distancing from public elementary schools and large licensed day care thal Is less
than for SLBTS under the tenns of this Agreement.
2. The City shall respect and adhere to the exemption in California Health and
Safety Code §11834.23 that directs that the City apply the same building, fire, and other related
codes to Facilities with six or fewer clients as It does for any single - family residential property
provided that:
(al The exemption Is not repealed or otherwise Invalidated by an appellate court
decision;
(b) The exemption is being applied to a single family dwelling unit (including
condominiums) or a duplex;
(c) SLBTS does not place non - ambulatory residents in their facilities; and
(d) SLBTS does not accept referrals or placements within a St.BTS home for protective
social care and supervision services by any governmental agency.
3. This Agreement, and, more specifically, these Applicable Regulations obviate the
need for and shall supersede the processing or issuance of any Use Permit or Use Pennits
concerning Sober Living's operations in the City.
WEST NEWPORT BEACH ASSOCIATION
P.O. Box 1471
Newport Beach, California 92663
www.westnewport.org
PruyidenG
Grain Bo tie c
I hserrlee (hrners liaison
941293--0630 June 1, 2010
Vice President:
57ruron Boles
Superior Ave. Liaison
949615 -4752
Secre[arvlhrem8ership;
Via Email and Nand Delivery
Lido Peninsula Resort
9491042 -3125
Robert Robert Hawkins, Chairman
9193466 -0605
949146&0605
Ken Brvant
and Planning Commissioners
7'reasorerr
City of Newport Beach
ivpra
3300 Newport Boulevard
.Ve
Neivpori Shores
Shores
Newport Beach. Subsequent to the passage of the Sober Living Development
9491042 -5843
Newport Beach, California 92663
Hi.vurianr
Mike dohnson
Subject: Morningside Zoning Agreement
West Oreanfrom
9491042 -3125
Dear Chairman Hawkins and Planning Commissioners:
Directors:
Ken Brvant
As many of you know, the Board of Directors of the West Newport Beach
klanaeredStreets
Association ( "WNBA") has been an avid participant in the debate and eventual
9491644.6266
passage of the current ordinance regulating Drug Rehab Operators in the City of
Morn ➢ryanr
Newport Beach. Subsequent to the passage of the Sober Living Development
^'amnered$Ire4 "S
Agreement, the City has apparently entered into a Zoning Settlement Agreement
949,'644 -6266
with Morningside.
Mon. Fger
Seashore Drive
At first glance, WNBA. has two concerns with the agreement as presently
9491887 -()554
configured. Both concerns are focused on the long -term public benefit for
k'icolai Glair
residents of West Newport Beach.
Riwr Aeuae
949/306 - 433?
first, one of the objectives of Zoning Agreement is control the numbers of rehab
✓Inr wider
patients or "clients" served by Morningside by capping the maximum number of
,Y ,eporl Island
clients served during any given time period. However, the WNBA is concerned
9401Y.7-3-7827
about the City's true ability to enforce the client caps due to the absence of any
.Inn OTIMnn
meaningful, independent methods to verify Morningside's compliance. This is
eart,aaeeees
especially problematic since the periodic Morningside - generated reports, required
9490345 -8233
by the City, also do not appear to be able to be validated once received by the
Rvere,fe phraips
City.
9'eupari .Shores
9491650-7528
The City's ability to verify compliance with this Agreement appears to be limited to
Robed Rush
inspections which would be carried out "...at mutually agreeable times during
RieedNepame
regular business hours." Namely, the only times verification occurs is during the
949;515 -2977
hours when clients are likely to be out of the home at work or at treatment
George Schroeder
sessions. This fact renders such City - recommended inspections virtually
,vi<mhered s,n:cry
meaningless. How does the city purport to count clients when clients are not on
9191846 -2628
site or in their beds?
Pau! lirarkins
11'esl oceonfronl
711/556 -0800
Morningside Zoning Agreement
June 1, 2010
Page 2
Secondly, we are also concerned about the limitation of three "clients" per
bedroom. This is a significantly less restrictive provision than was incorporated in
the similar Sober Living's Zoning Agreement which was 2 "occupied beds" per
bedroom — with no explanation for the difference. And this difference is unusual
since Morningside and Sober Living utilize the same types of residential duplex
structures for their operations. More importantly, under Provision A of the "Most
Favored Nation" clause of the Sober Living Zoning Agreement, it appears that
they (Sober Living) will be entitled to use this less restrictive provision thereby
significantly expanding Sober Living existing bed -count caps in the 'Peninsula
Area. Why is the City increasing the Morningside "occupied beds" count by 50 %,
from 2 to 3 (1/2 = 50 %)?
It is our hope the planning commission will focus on these two WNBA concerns
with the intent of recommending revisions to the proposed Morningside Settlement
Zoning Agreement. At the very minimum, please delay approval of this
agreement until further deliberation, study and additional community public
hearings are conducted.
Very truly yours,
Craig Batley
President
West Newport Beach Association
cc: Newport Beach City Council Members
From: Barry Eaton [mailto:eaton727 @earthlink.net]
Sent: Wednesday, June 02, 2010 8:13 PM
To: McDaniel, Earl; Charles Unsworth
Subject: [Fwd: Planning Commission Meeting June 3, 2010]
-- - - - - -- Original Message -- - - - - --
Subject:Planning Commission Meeting June 3, 2010
Date:Wed, 2 Jun 2010 18:05:41 -0700 (PDT)
From:cynthia koller <aracenbI(&,yahoo.com>
To:Robert Hawkins <rhawkins(dearthlink.net>, Susan/Barry Eaton
<eaton727kearthlink.net>, Scott Poetter <scott.peottergtaxfighter.com >,
bhillgren(ahighrhodes.com, Earl McDaniel <emcdaniel(a,fullertoncb.com >, Michael
Toerge <stratalandna earthlink.net>
FOR THE RECORD and DISBURSEMENT
ATTENTION PLANNING COMMISSIONERS: Robert Hawkins, Scott Peotter, Earl
McDaniel, Michael Toerge, Barry Eaton, Bradley Hillgren, Charles Unsworth
REFERENCE: MORNINGSIDE RECOVERY DEVELOPMENT AGREEMENT
GENTLEMEN:
I would like to preface this request by stating I /we are not against legitimate recovery.
As I address this letter to you in my home the time is 7:57 am, I just watched and heard
a speeding Momingside van come down River and take the corner at 39Th and River so fast
she /he went up my curb on River and then the sound of the tire coming off the curb on 39Th as
they sped to cross Balboa. I guess they were late. This happens daily at all different times AND
IS EXTREMELY DANGEROUS.
As I have been a constant target of harassment and intimidation from Momingside employees
and their clients ( which I have documented at City Council Meetings and on city emails) from
the time I first started to represent the residents of the peninsula to the city I am still amazed at
the arrogant display of complete contempt for me, my family and my neighbors which in essence
is against you as well.
My understanding from Dave Kiff is they ARE NOT to be using 39Th on the 200 block or this
end of River.
I have several questions that I would like answered for the public.
1. page 34 item G.
In all respects not provided for in this ZONING AGREEMENT, the city of Newport
Beach shall retain full right to exercises it's police power to regulate the operation
of residential care facilities on the PROPERTIES provided such powers are applied
consistently with the provisions of state law and the terms of this agreement.
a. How does law enforcement police these homes with "full right" when the people in
these homes are considered disabled and what special rights are they the "clients
afforded because of this status?
b. In the past on several occasions the residents of 39Th St. have seen several
rehab "clients" become violent and break into homes in our neighborhood only
to be handed over by the police to a "third party" and taken back to the home
they were being treated in.
What is the exact protocol of the police dept in these types of situations as we
have been told differently by the City, Robin Clauson, the City Council and the
police?
c. Is the City currently triangulating with law enforcement, paramedics and fire as
Robin Clauson stated at the IROC meeting to me and all attending?
d. If not why not and will triangulation begin the departments be a implemented
city policy.
2. page 37, item N
The requirement of good faith compliance shall be met upon the submittal to the city
of a accurate compliance review report showing information related to the facility
locations and number of CLIENTS at each MORNINGSIDE FACILITY.
a. Who in the city will be in charge of the audit and how will they determine if
Morningside is complying on a day to day basis for the protection of the
community?
b. Why would the city let one of the most egregious operators operate in
"in good faith" when they have never followed the rules of the city up and
to this point in time?
3. page 39, item R
Third party challenge.
a. Could you explain why it is that the City, who works FOR THE RESIDENTS
is taking the stand in this zoning agreement that if the residents were to sue
Morningside, THE CITY would fight against the people (the residents) who
they are suppose to represent?
4. page 42, item 6
Entire Agreement. Except for the Settlement Agreement, this ZONING
AGREEMENT constitutes the entire agreement and supersedes all prior agree-
ments and understandings, both written and oral, between the parties with
respect to the subject matter addressed in this ZONING AGREEMENT.
a. Can you explain how the city can "spot zone" for these businesses and
can this create a situation where other businesses that want the same
favor can sue the city for this favor and change the complete nature and
integrity of our RESIDENTIAL neighborhoods?
5. page 45, item 3
GOVERNMENTAL REFERRAL. Operator shall not provide any services to any
client or house any client who has been referred or caused to be referred to
Morningside Recovery Facility by any governmental agency, including but not
limited to probationers or parolees, due to the limitations that section 509.9
of the California Building Code places on Group 1 and R occupancies.
a. THE WORDS "ALTERNATIVE SENTENCED" NEEDS TO BE ADDED TO THE
ABOVE PARAGRAPH NEXT TO AND ADDITION TO THE STATEMENT
"INCLUDING BUT NOT LIMITED TO PROBATIONERS, PAROLEES OR
ALTERNATIVE SENTENCED ".
IF THIS IS NOT ADDED TO THE LANGUAGE THE OPERATORS CAN STILL
TREAT CARD CARRYING COURT SENTENCED, EXPUNGED OF
ADDITIONAL CRIMES (spousal abuse) REHAB CLIENTS.
6, page 46, item 9
Client Transport. Operator shall insure that loading and unloading of passengers
of the facility's transportation van shall occur only in open parking spaces or
garage spaces. The van driver is prohibited from stopping or double parking
in a traffic lane to load and unload passengers. In addition client drivers shall
respect all city rules regarding parking and/or stopping and waiting to load
residents. Client transport vehicles shall not block adjacent alleys or street
ends.
a. When residents call PD about the problems and complaints with the vans
and law enforcement tells the residents "try to find which house the vans go to
so we can go talk to the operators" is this going to be the only device the
residents can use when being inundated by vans speeding up and down
our streets, vans double parking in the Lido Village blocking the street
completely, and vans blocking our alleys?
b. Why can't the vans have a large visible number on both sides and back
identifying the vans for police and city use. Residents could then
call on traffic hazards and report the number. THIS NO WAY
IDENTIFIES THE CLIENTS ON BOARD OR THE OPERATOR. THE
RESIDENTS WOULD NOT KNOW WHO THEY WERE IDENTIFYING
ONLY THE NUMBER ON THE VAN. THE PEOPLE INSIDE THE VAN
ARE DISABLED, NOT THE VAN DRIVER OR THE VAN!
THIS WOULD ALSO HELP THE CITY KEEP TRACK OF REPEAT
OFFENDERS AND EGREGIOUS OPERATORS.
page 48, item 21
AFFIDAVIT OF DISABILITY. The Operator shall execute an affidavit de-
claring that all clients receiving services from this facility are disabled persons,
as that term is defined by federal and state fair housing laws.
a. Does this mean that every client would have an individual affidavit on them
or is the affidavit pertaining to the group as a whole?
b. Who determines when the "client" is disabled and when they become
"NOT DISABLED" which gives them special considerations within the
law and special favors in our city?
c. Who really knows who is housed in these homes besides the operators
and who in the city is charged with keeping track of the thousands of
"clients" coming and going in and out of our residential neighborhoods?
MAP OF TRAVEL ROUTES
a.Can Momingside tell me /residents where it states that they can use vans on
the 200 block of 39Th and River Ave. between 38Th and 39Th St which they
constantly do? This agreement specifically states they can not use River
between 51st and 32ND. So why make an agreement with someone who
still DOES NOT FOLLOW the specifics in this agreement?
b I am requesting as stated above to have these vans numbered in large
graphic print to make the violators easy for the city to identify so when
the residents call in on them they are not told to go follow the vans and "find out
which homes they are going to so the police can speak with the operators ".
I am working from home today and as I sat down to work at 12:59 pm another van came
speeding around the comer, a female driver with short brown hair, WITH HER CELL PHONE
TO HER EAR. SAME BEHAVIOR, UP THE CURB AND OFF THE CURB.
I hope you can see why we are so concerned that Morningside one of the most flagrant operators
in Newport Beach is being giving the right to do their business in our residential neighborhoods.
Once again I am pleading for the words "ALTERNATIVE SENTENCED" be added as stated
above in #5, item 3. The operator should have no objections if as they have stated, they don't
service these clients.
It also seems to me that whatever you, the Planning Commission decide to amend, it could make
little difference as the agreement has been up the city's website as a "approved facility" for
months.
That being said I would hope that you would consider my comments and observations and do
what is in your power to make these issues right for the protection and integrity of our residential
neighborhoods.
Thank you in advance for your time and consideration of these matters.
Sincerely,
Cindy Koller
River Ave, West Newport Beach