HomeMy WebLinkAboutpc minutes - 08-23-07Planning Commission Minutes 08/09/2007
CITY OF NEWPORT BEACH
Planning Commission Minutes
• DRAFT August 23, 2007
Regular Meeting - 6:30 p.m.
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INDEX
ROLL CALL
Commissioners Eaton, Peotter, Cole, Hawkins, McDaniel, Toerge an
Hillgren:
All Commissioners were present.
STAFF PRESENT:
David Lepo, Planning Director
Aaron Harp, Assistant City Attomey
City Counsel Barbara Kautz, Esquire of Goldfarb and Lipman, LLP
City 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
e
None
P STING OF THE AGENDA:
POSTING OF
THE AGENDA
The Planning Commission Agenda was posted on August 17, 2007.
HEARING ITEMS
OBJECT: 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,
Rlations relating to group occupancies and short-term lodgings.
2007
epo 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
would like the Commission to consider in any proposed ordinanc
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dressing group occupancies. The Planning Commission directed staff to
iiew the list of issues and revise the ordinance accordingly wherever the
jai staff and consultants felt were legal and acceptable. If there were
jai issues that prevented those issues being included, staff was t •
wide a report. The draft ordinance has been revised wherever possible
reflect those issues.
Alford noted the following overview of the proposed Code changes o
iat was submitted in June and revisions made to date:
Adds specific and detailed land use classifications for group
occupancies to maximize land use control consistent with State and
Federal laws;
Residential Care, Limited will be replaced with two new use
classifications - Residential Care Facilities, Small Licensed that is
or fewer persons with disabilities and must be continued to be
permitted by right in residential districts per State law, and;
Residential Care Facilities, Small Unlicensed - 6 or fewer person
with disabilities, requiring a use permit in R -1.5, R -2 and MFR
Districts and the equivalents in Specific Plan (SP) Districts;
Residential Care Facility, General - covers 7 or more persons with
disabilities, limited to the MFR Districts, the equivalent in Specific
Plan (SP) Districts and requires a use permit;
Group Residential - dormitories, fraternities and sororities will
continue to be prohibited in all residential districts except for those
serving the disabled persons;
Boarding House - a new land use classification and is prohibited i •
residential districts;
Parolee- Probationer Homes - a new land use classification and is
prohibited in all districts;
Convalescent Homes and Hospitals will be prohibited in Residential
Districts;
Vacation Home Rentals - a new land use classification is added to
reflect existing short-term lodging permit regulations, continue to be
permitted in R -1.5, R -2 and MFR Districts; new rentals prohibited in
single -unit districts since 2004, and that will continue; in the stafi
report it was indicated 88 valid permits in single - family areas, the
actual number is 118 and 30 of those are currently active;
In commercial districts public assembly is to be prohibited in Wes
Newport and Balboa Peninsula SP Districts such as clubs and
lodges; no proposed changes to regulations on Religious Assembly
due to the protection under the Religious Land Use and
Institutionalized Persons Act of 2000;
Business and professional office - services involving the assembly
or meetings of 7 or more persons are prohibited in West Newport
and Balboa Peninsula SP Districts;
New definition of Integral Facilities - 2 or more Residential Car
Facilities under the same control and management come under
Residential Care, General use classification whether in same
building or different parcels, and are subject to use Perm
i •
requirements and other land use controls;
New Chapter 20.91A (Use Permits in Residential Districts) - applie
to all uses requiring use permits in residential districts and applies to
all uses such as bed and breakfast inns, day care, schools, etc.;
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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 Citl
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 unde
20.96 (Enforcement); within 120 days the City must begin to identifl
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 applicatior
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 Distric
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 anc
requirements;
Non - conforming uses that relate to dwelling unit type will not be
subject to amortization and abatement.
ly Marshall, special counsel from Goldfarb and Lipman, noted:
1. proposed ordinance deals with the issue of non - residential uses i
idential zones. The goal is to have an ordinance that addresses th
itimate issues that have been raised in a way that is not facial)
criminatory. For example, over - concentration is dealt with by dealin
i all conditional uses in residential zones, understanding tha
iditioned uses tend to be for non - residential or quasi - residential in som
y. It applies to all conditional uses and doesn't just apply to residentia
e facilities. If the City already has enough of a particular use to meet
nand, then a minimum standard must be met, which is no more tha
a 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
k i e by
case analysis to see what that particular use would do in th
ular location. If it would change the residential character, you hay
road discretion in a conditional use context. Another example take
not be facially discriminatory is with the abatement provisions. If a uc
rrmit is required where it didn't use to be required, a facility or a uc
>uld have to apply for the use permit and that applies to any change
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he zoning law. All uses would have to apply for a use permit. If a use is
)rohibited, for example now you can have a small unlicensed group horn
n a single family district, but if you pass this proposal, it is prohibited. With
he larger ones, you will only be allowed to have them in a multi -famil •
listrict. If that is the case, or if they apply for a conditional use and they are
lenied, then they will have to be abated and the use will have to be
amortized. The ordinance does not say it only applies to residential car
acilities, that is not the case, it applies to any conditional use, so it could be
i private school. We did this because we are trying not to be facial)
liscriminatory in the ordinance.
Nhat is not in the ordinance that the citizens requested are registration and
;pacing that only applies to residential care facilities. To do so, would be
acially discriminatory. Facially discriminatory means that on its face, in an
)rdinance, treats protected groups of people, in this case, disabled people,
iifferently from other people. There are two kinds of discrimination, facial
)r discrimination as applied. As applied is when a law is neutral on its face
)ut the people enforcing it discriminate by only going after a particular kind
A people. The legal standard for facial discrimination, which is what we are
rying to avoid, is what would a court look at to say whether it is illegal or
iot. The case cited by Concerned Citizens (Familystyle case in St. Pain is
n the 8th Circuit which governs that part of the country. This case had a
;pacing requirement that applied to residences for people with mental
Ilness and there was a legitimate state interest of avoiding the
nstitutionalization of these people and so it was upheld. We are in the 9th
circuit and in November 2006, there was a case called Community Nous
t. City of Boise, and they explicitly rejected the legitimate state interes •
standard that was used by the 8th Circuit. They said in our Circuit, facia
liscrimination is legal only if it benefits the disabled or addresses legitimat
safety concerns. They went on to say it cannot be based on stereo -type
)r subjective opinion, it must be based in individualized analysis of
)articular situation, the safety concerns. March 2007 there was a case out
)f Nevada on spacing requirement for residential care facility. It cited Bois
and said this is not legal. It was a spacing requirement that was adopted by
he State of Nevada and then adopted also by Clark County and it was
ound to not be legal because it didn't meet one of the two tests, legitimate
>afety concerns or benefits to the disabled.
Ne came up with a proposal that is not facially discriminatory. There are
wo places in this ordinance where residential care facilities are singled
)ut. One is special standards for unlicensed 6 or under, and the second
me is the over - concentration standard. [She noted and explained the two
ises that are part of the packet and in the record.]
fhe alternative proposals in the proposed ordinance, we rejected because
)f concerns of facial discrimination as they go after just this one use that
serves the disabled and there is no record of benefit. There is assertion of
)enefits but there needs to be evidence of why these things benefit. The
ire somewhat over - reaching and you can't make an argument for benefit of
)pacing with parks or restaurants. Issues are so broad instead of dealing •
vith the residential character of neighborhoods and dealing with all
: onditional uses.
,ommissioner Peotter asked for an explanation of the aspect of disabled
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abatement of a current use that did not have a conditional use
)use it was not required originally.
Marshall noted there is a definition in the draft ordinance proposal.
bility, is a protected class under the Fair Housing Act. All of thi:
ysis is a Fair Housing analysis. The Fair Housing Act was amended R
de disability and disability expressly includes addiction to drugs of
hol but excludes those currently using an illegal substance. People
are addicts but not current users are considered to be disabled.
Tees are not a protected class. Any use that now requires a permi
d come in and apply for the permit. If it didn't have one before an(
not required to have one before, they would be a non - conforming use
would be given a certain amount of time to apply for a permit. If the
iit was denied they would have to be abated in a two -year period. The
ement is required in residential areas only.
explained the benefits of the comprehensive update of the
and city -wide rezoning.
nmissioner McDaniel asked how the City will know who is living
lity if they are not allowed to ask as parolees are not a part
iected 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
iou 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 famill
e. But, for the other ones, yes, you can certainly ask that question.
)mmissioner McDaniel noted the predominance of alcohol rehab hoi
a in District 15, which has the highest amount of calls for police sery
ir the protection of our citizens does it make sense that these homes
the same area, does it make any difference?
Marshall answered the use of alcohol is legal. To say we have pe
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 fratemity he
are there is drinking, that is discriminatory and is limiting their hou
ices. It is in the guise of perhaps protecting them from exposure 1
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 I;
it, which they don't, that certainly would affect our view on how to
3t area in terms of parking, etc. Families do not have six or more
ning we have for R -1 addresses what is normally in that area.
Dre is a concentration of those facilities in that area, aren't we ba
- zoning that area when there are up to
not normal for our zoning.
twelve people in a duplex?
noted this is what to look at when deciding what has
I character of the neighborhood.
Kautz, Special Counsel, added that the only facilities under
permitted in R1 areas are the licensed facilities. The
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:quires that you treat licensed facilities for six or under like single-family
omes. The unlicensed facilities, under the proposed ordinance, would no
e permitted of any size.
•
:ommissioner McDaniel noted the beachfront area has different physical
tructures than most cities. Right now they are R1 and could we say that
nything that falls under Coastal Commission jurisdiction has certai
sues or specific concerns, etc. is there any reason we couldn't put special
Wing on this special area?
Is. Marshall answered yes. To make a zoning classification, it has to be
itional and promote the welfare. If it is a classification that affects a
rotected group, like the disabled, then it has to either benefit or address a
gitimate safety concern. If you want to say because it is near the ocean it
a legitimate safety concern that is something that can be said but you
could want to have evidence in the record as to why there is a legitimate
afety concern for this group of people that doesn't relate to other groups.
iscussion continued.
:ommissioner Hillgren brought up the issue of protection of former users
nd the loss of this protection and City's ability to determine current or
rrmer users.
Is. Marshall answered she counsels that a line be drawn and be applied
onsistently. She then discussed the issue of testing and the ramifications.
:ommissioner Eaton brought up the issue of separation and distanc
ieasurement.
•
Is. Marshall noted the idea was to have one facility per block but you
right have one on the edge of the block that was across the street from
nother one and the 75 feet would cause the second one to move down
re block as it would cause over - concentration.
:ommissioner Eaton asked about discretionary process as opposed to a
Ked distance requirement.
Is. Marshall noted it was to avoid the facially discriminatory aspect and
,ent on to explain.
Is. Kautz added that the Pasadena ordinance, with the 500-foot
istancing, is an administrative reasonable accommodation provision and
pplies in every residential zone and is more lenient. It allows unlicensed
rcilities for six or fewer people in every residential zone including R1
ones. The separation requirements are between unlicensed facilities and
Iso for the older ones but there is no separation requirement from drug
nd alcohol homes or residential care facilities, licensed drug and alcohol
omes or residential care facilities for the elderly, which have no spacing
squirements. The only notice given for reasonable accommodations is to
djacent neighbors. Discussion continued.
•
ommissioner McDaniel noted the issue of care facilities being allowed in
re R1 zones. However, a company that owns multiple facilities is putting
usinesses in the R1 and changing the character of that zone. As a Ci
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should have some rights to say this is operating as a business s
efore we would like to have some understanding of what is going on.
I arshall noted this is what makes it so frustrating. That is what we <
rg to deal with in the integral facilities definition. It is pretty aggress
id deals with the ownership and operation of six and under now bei
ultiples operating in the R1 zone. Under the new rules, if it is more th
it would have to go to Multi- family Zone. That is what we are trying
i. There is State law that gives them protection if it is 6 and under a
ensed. We are hoping to make the case that there are egregic
:uations in the City where this just doesn't work.
,sioner McDaniel noted his concern of the expected number
in a residence in an R1 zone and the number of people in ca
in an R1 zone.
Marshall discussed the issues of Building Code violation
cement regardless of the disability, and the use permit findings
tions.
>mmissioner Hillgren brought up the issue of licensing. What opportun
available for business licensing by the City?
Marshall answered the license is issued by the State of California. TI
:ensed 6 and under, is not that they are illegal because they a
:ensed, the State does not license them because they don't provi(
jcal treatment. They are operating legally.
Kautz noted the business licensing for the City is solely for
aration 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.
man Hawkins asked about the standard between the 8th and
it Courts.
(Marshall answered that the 8th Circuit decision is a minority
`buted an excerpt from the "Hom Book ", which is a summary of
law regarding the spacing requirement.
Hawkins asked if the ability to apply for a use permit for
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iat are really boarding houses, etc. to remain in certain residential zones,
;n't that a reasonable accommodation?
Is. Marshall answered, yes because the City does not allow any of thes •
:sidential uses except in the limited situation where it is a residential car
icility for the disabled and now you are layering on top of that the
onditional use requirements, so you are making it stricter. The whole
cenario is in sense, reasonable accommodation.
;hairman Hawkins asked if there was a way to reflect this in the ordinance,
iat these are part of the reasonable accommodations.
Is. Marshall noted that they are trying to make this point that group use
re prohibited everywhere. That shows up in several different places and
its would be good to put in the findings.
ublic Comment was opened.
Iichael Tidus, partner in Jackson /DeMarco/Tidus /Petersen /Peckenpaugh
aw Corporation, speaking for community members noted the use of stric
crutiny standard and the use of rational relation as applied in the 8th and
th Circuit Courts decisions related to spacing issues. Referencing the
pint statement of the Department of Justice and Department of Housing
nd Urban Development he noted identified items that could be addressed
y the City including density restrictions. Over - concentration is okay to
;gulate if you can show density is a problem. We don't believe there is an
ver- concentration city -wide, it is in certain areas of the City which •
istorically are densely populated with very closely situated homes. W
ropose an overlay district and within that overlay district if there is a group
ome that seeks a conditional use permit during that process the 500 -foot,
,000 -foot, or 1,500 -foot should be applicable. You can always have a
:asonable accommodation if it is determined.
le agree with the American Planning Association (APA) position that
lentifies not more than one per block as contained in the staff report.
lock size varies and we so we picked 1,000 feet. You may have to make
decision that it is closer than that during reasonable accommodation
earings. Provisions need to be written in so as to prevent applied
buses. 75 feet is basically every other home. We believe a more rational
istance is 1,000 in those areas where we have over - concentration. There
re more than 100 of these homes within a mile and a half. He then cited
Cher cases. The registration requirement shouldn't be a problem.
oticing the neighbors should follow the City's normal procedure.
hairman Hawkins asked that the speaker make a copy of a binder with
;gal cases that he had presented to one of the Commissioners availabl
)r the record. Mr. Tidus agreed.
lene Taber, partner in Jackson /DeMarco/Tidus /Petersen /Peckenpaugh
aw Corporation, speaking for community members noted the issue oll •
ver - concentration. The City Attorney in August sent a letter to the State
epartment of Justice affirming the fact that in this City there is an over
)ncentration of residential care facilities noting that in pockets of high
)ncentration the community character has been changed from residential
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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
I ific areas where over - concentration exists rather than a huge net
ure 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 mo
)ansive than the City had originally intended for these areas and a
ire 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
it until the City conducts an inventory. There are no provisions for whe
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
rortant the City have an understanding of where these particular us(
The burden should be on the operators to tell the City rather than tt
y trying to figure out where all these particular uses exists.
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
nmg Commission. It is a major land use decision and there should
luate 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
imment and the proposal by staff cuts the residents out of the prow
that is the issue of reasonable accommodation. There should be
Munity 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.
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 i
1lities coming up particularly in Corona del Mar and that is why we
look forward and include those areas where the problem could exist.
issioner Cole asked about the proposal for a residential care overla
and what would be the basis? Are you using the 8th or 9th Circu
sions?
Taber answered that there is a long history of dealing with issues
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erms of dealing with overlay zones. When there is a particular need a City
s within its right to identify where those impacted areas are and then try to
nake regulations that only affect those particular areas. We have included
hat potential overlay zone in there.
•
Dommissioner Cole noted the concept of the overlay zone is something
hat would be benefiting the disabled because we are creating an
nstitutional area or an area that might have narrow streets, setback
equirements, etc, are we making a case we are creating that zone to
actually help the disabled, therefore we can regulate it differently? Can we
;reate a greater dispersal zone? What other cities have an overlay zone
:oncept?
As. Taber answered that in the cases that have been cited, one of the
ssues is what is the benefit to the disabled? Certainly the law is clear that
he disabled don't benefit from the idea of them being in a residential area
and instead of being placed in a residential area they are placed in an
nstitutionalized zone. These are the areas that the City agreed and
epresented to the Department of Justice that there were these pocket
hat existed in the City where the nature of the of the City had changed
rom residential to institutionalized zones and what we tried to do with the
Overlay zone proposal was to identify what those pockets were.
In those particular over - concentrated areas, the City has agreed that the
lave turned it into institutionalized zones so the way you move those area
)ack to not institutionalized zones but residential areas is to create a
lispersal requirement to disperse these types of facilities throughout th
:ommunity, which benefits the disabled because then they have the
•
)pportunity to truly live in a residential area.
(here are cities that have established distance requirements such as the
"ity of Murrieta that has a 1,000 foot distance requirement and the two
)ther cities that you have already heard about. Those are city-wide
equirements. We propose that the City not adopt a city-wide requirement
and tailor it only to those particular areas where the impact exists. Cities
laving a long tradition have the authority to regulate from a land use
)erspective and cities are adopting overlay zones that allow them to deal
vith specific issues.
,ommissioner Cole noted that staffs concern was that we had to have
)roof that this was actually going to be beneficial to the disabled. Are YOU
suggesting a way to do that or do we meet that threshold?
As. Taber answered we do meet that threshold and how we meet that
hreshold is a couple of ways. We presented the map that shows all of the
)reas that we have been able to locate where these existing facilities are
and there is more than 100 of them in a mile to a mile and a half distance;
hat shows over - concentration. There is the City's own assertion and
epresentation to the Department of Justice where these pockets have
)een created that have changed the character of the neighborhood fro
esidential to institutionalized zones. There is broad recognition in AP
•
:)umals, Department of Justice family style cases where they specifically
alk about the fact that it is not beneficial to the disabled to be located in a
:ommunity that is so over - concentrated that the character of th
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(neighborhood 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:
ter- 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 t
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 %A
iywhere between every other lot or every third lot.
ioner 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
ence and placed into the record that it would be beneficial to t
bled to have this dispersal requirement. There are existing safi
;erns that legitimize this kind of standard, i.e., there have be
irvations, and in the surveys that were done, about second -ha
ke. Second -hand smoke is recognized as a carcinogen. A lot of citi
ordinances about where you can smoke and that same kind
action should be given to citizens in residential areas.
psonable accommodation is like getting a variance from an ordinam
lust by a different name. Any type of variance from an ordinan
ild go to the Planning Commission for consideration and should ha
luate 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 a
is important that everybody had notice that there already exists o%
incentration rather than making an operator come into the City, do
ese studies, only to find out that there is over - concentration in the
articular areas.
Hawkins noted the confusion between facial discrimination
reason to go to the benefit or harm. What is the analysis a judge
e to go through on your proposal?
Taber answered he will look at the proposal and see that it identifi
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?
aber, yes.
an Hawkins: the reason that we then go to the two -prong is
the prima fascia case of discrimination, right?
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Taber, yes.
:hard Terzian, partner in Bannan, Green, Frank and Terzian I
inset for Sober Living by the Sea noted he had sent a letter
gust 22nd which repeated comments sent in previous letters. He
was available for any questions.
airman Hawkins asked, as a counsel for public agencies, if Mr. Terz
I an opportunity to defend any of these agencies in connection with
inance like the one we are considering now.
Terzian answered yes, it was in the U.S. District Court. It involved thi
r Housing laws, both Federal and State. The defendant owned si:
heimer homes for the out -care of these patients, each with six or fewe
idents. Following vigorous code enforcement by the City against tha
ividual she went out of business. The owner sued the City claimini
re was discrimination against the handicapped. After a prolonged trig
i jury deliberation, the result was a verdict of 22 million against the Cit,
i found two members of the City Council and the Director of Publi4
irks had participated in the discriminatory action. The total exposur(
luding a fee application of 19 million dollars was 41 million dollars.
lowing a series of post trial motions and negotiations, the 41 millioi
lar exposure was reduced to 20 million dollars that was paid by thi
:ommissioner Toerge, referring to the letter, asked about the statement o'
proposed amortization of non - conforming use would also be a violation o'
aw citing the time frame of 5 years in the proposed ordinance not beinc
,Hough to fully recover from an investment." What investment, how car
'ou characterize the investment, and is it the same for every facility?
:ould they be offset by the ability to rent it out, were you abated in other
✓ays? If you could sub - lease, wouldn't that offset that investment?
Terzian answered a long -term lease obligation plus what
ifications had to be made to the house. He could not be anyr
Ac. My client does not own any of these homes, they rent them.
ible, 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.."
r do you define few or small?
Terzian answered, certainly a lot less than the large 80,000 to 85,
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
ie 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
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•
•
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scussion continued on complaints in general; good or bad operators
Dir impacts; and the use of code enforcement.
art Rush, local resident, noted the issue of the case mentioned by t
ious speaker as well as one in Boca Raton are referenced to intimida
governments. He noted that the operators of the Alzheimer's' hom
ally demolished buildings without permits and that was the cause
case. The City then made judgments on that operator. He noted t
3 Raton case attempted to place the use into a medical zone. It
genuous for individuals to focus on these cases as some fate we m
;r if we try to apply fair and reasonable standards of concentration.
ax Liskin, local resident, noted the number of people here in a town c
),000 people. Most of these facilities are on Balboa Peninsula, how man,
:ople live on the Peninsula? I think that is the way to look at th(
embers. In terms of working with the community, we still need someone,
1lieve, from Sober Living by the Sea to take a leadership position with the
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
Iking about hundreds of millions of dollars of revenue which CRC {paren
)mpany of Sober Living) exists in, buying a lease for whatever amount i;
buts in terms of what it could do in terms of community good will.
I had applied for a short-term lodging permit and was told I couldn't gE
me as I live in an R -1 zone. I support the idea of not having short-ten
Aging 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
ire 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 c
liscrimination. 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
rosiness? I don't care what you call it, they make money or they wou'dn
to it. Even if you say it is not a business, I have to register if I want to ren
vhy don't they have to register for what they do? I don't see th
rrence Sherwin, local resident, noted these facilities take care of o
r rich people and I don't know whether it is discriminatory or not. Vl
't you demand accommodations for people who don't have money
? These facilities are based on use by citizens of Newport Beach.
�
an't find out who is living there, and if they are not residents
port Beach, why can't we find that out to make sure that these facilit
for the primary use of citizens of Newport Beach?
uhe Morris, local resident, noted Malibu has 27 miles to
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roup homes. They have 18 of those group homes, we have over 100 on
ie Peninsula alone. Malibu should not be a case that is referenced. She
ien noted the bits of case law referenced by Special Counsel. There has
een a taking in Cannery Village that has turned into an institutionalized
etting as there are hundreds of bikes at all hours. If you go down there,
•
ou are not welcome. That is also happening in Lido Village with all the
ieeting houses and office buildings that are only for the sober living
icilities and places that did rent in Lido Village are no longer there. There
re empty spaces being taken over for meeting houses. Smoking is a
uge issue. The six and under unlicensed facilities being a family style
etting, with vans showing up at these settings, and taking each of those
:sidents to Cannery Village or to wherever else they are being taken for
ie dental, medication, mental health needs are services being provided.
hat should be considered an illegal use and should be addressed as
uch.
iavid Diamond, local resident and neighbor to one of the facilities
:presented by Mr. Terzian has had various problems with them. H
sually has been able to deal with the people on the premises to reach an
ffective solution. His home is surrounded on 39th and 40th Streets with
iese group homes. Both 3960 and 3980 have gone through renovation
nd have changed their windows and remodeled the kitchens, all without a
ermit from the City. We have many operators of many homes in our
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't
leep. I asked him to tone it down and he did not respond. I yelled at hi
> get inside and carry on the conversation. The next morning I talked to
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 next
ight, the operator and this individual had a huge argument that I could
ear coming through the window. Now, they are putting in double -paned
rindows. If you would look at the questionnaires that were sent out and
ie responses, you will see the problems that we have.
ou have such a concentration that these people know each other and yell
ack and forth, sometimes the language is horrible. This is not the normal
haracter of living in an R -1 home. I don't mind talking to the operators to
y and help them control the problem but the problem has been
xacerbated by the over - concentration of the group homes with the alley
eing blocked by vans stopping to pick up and discharge the residents. I
ekes a tremendous staff to be able to provide food, supplies, medical and
ansportation needs and other things for twelve people in a home. The
icility next door to me has 18 people in one residence. The concentration
reates problems.
•
oel Slutzky, local resident, encouraged the City to talk to the firs
asponders and have them do an analysis and it would probably be beyond
,000 feet. He supports an overlay zone.
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anise Oberman, local resident in an R -1 zone on the Peninsula, not,
ase 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
I result of the City essentially removing all reasonable ordinances ai
lations 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 Ai
lights and West Newport and other homes popping up in Corona c
ar. Our lots are very narrow so whatever impacts exist, w
ncentrations the impacts are that much more intense. For examp
coking; the houses are mostly 3 to 6 -feet away from one another, wall
A. 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
es, it was designed originally as a residential community with son
iecial districts that afforded some recreation and other types
nveniences. There has been a concerted effort by the City to revitali:
s area. Having an over - concentration of institutional uses is going to I
unter productive.
aron Batley, read an email from Craig Batley of Burr White Realty thi
,as previously included in the staff report. The two group hom
rdinances passed in 2004 failed to curb the proliferation of the grou
omes. The proposed ordinance is flawed as it allows more, not les;
roup home businesses in the City. The short-term lodging industry ha
Roperating on the Peninsula and Balboa Island since the City'
tion, and the industry has been regulated since 1992. Short-ten
edging customers are families with children, group homes customers ar
,ands of the courts; short-term lodging is transparent in its operation;
roup homes are secretive and proprietary; short-term lodging guest
ontract with property owners, group homes do not contract with properl
wners; short-term lodging guests have occupancy limits and group home
D not disclose this. information; short-term lodging guests pay Transiei
iccupancy Tax (TOT), group homes do not; short-term lodging guests ca
e evicted at will, group home operators cannot be evicted; short-ten
roperty owners are subject to fines, group home operators are not; shor
= lodging guests are single housekeeping units, group homes are no
hort-term guest lodging covers about 2 and 1/2 months worth of impai
uring the summer months, group homes impact all year round. For thes
aasons, we ask that you bifurcate the short-term lodging from the grou
ome ordinance.
Tres Offing, local resident, noted her agreement with th
mmendations of Alene Taber. She then made reference to a shoe
!d Intervention that deals with drug and alcohol types of people. O
web site, Sober Living by the Sea is listed and they talk about all the
:ments. Many of these people are coming to Sober Living here i
port Beach. There are more sober living homes and drug homes i
Pity of Newport Beach than there are in any other City in California c
e United States of America. We should be able to go to the State an
some sort of dispensation. I would like to know how many home
e other cases that have been referenced are dealing with because t
this is not an over - concentration is ridiculous. The current ordinanc
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talking about one per block. That means we could have 50 units in on
ea, which could be for sober living, then we would need one per block for
e bulimia patients, etc. According to this ordinance it could be
proximately 450 homes you would be okaying. I need someone to •
:plain this to me as it is definitely making it worse. You need to watch
at show at least once to see what these neighbors are dealing with on a
lily basis.
s. Marshall noted that there is a misconception about when it said on
ch use per block. Because of the way it is written it is to apply to all
�nditional uses, the intent was different types of uses. Residential car
- ilities, whether they are for bulimics are for alcohol/drug facilities, would
one use. It certainly was not intended to be different types of facilities
Irving different populations.
y Brenner, local resident, noted that there was a group home two doors
for mentally ill adults next to her home. I bring this up because
ncentration is not the only issue here. With these homes so close
aether, what goes on inside is heard by the neighbors. There was s
Lich screaming during the night. There were buses lined up and down
a street with engines running and radio communications blaring during
a day picking up the patients. We have noise regulations and I can call
a police for noisy renter neighbors. If we start calling police every time
a noise from the group homes is impacting us, not only is that impact our
ility to respond to emergencies in the City, but it will create a problem for
a property owners if a regulation is in place for them to be charged i
ire than two calls are made on their premises any given day or night. I •
at what we have to do? We have to be able to regulate and control these
Liup homes because the residential atmosphere in our neighborhood was
istroyed by this home. It is no longer there, fortunately, as it has since
ien sold to a family who now lives there. You can't just look at this on
ncentrated area and think that is the problem and it is just these sober
ing homes because it is a larger issue than that.
ck Nichols, local resident noted the License 10505 says that professional
✓nership can't own or rent a sober living home. Sober Living by the Sea
certainly a professional ownership. Owning the lease and renting to six
under that doesn't matter because they are a professional ownership,
d in owning more than one have to be licensed. I don't believe they can
ve unlicensed homes. I think we need to enforce State laws and by so
,ing we then have some ability to trace where they are. It's ridiculous that
have to trace where they are. State laws says those homes have to be
ensed and we need to make that clear and it should be enforced.
iblic comment was closed.
iairman Hawkins stated the issues of over - concentration, the argument
at sober living homes outside the scope of these regulations and that the
ly is pre - empted, reasonable accommodation standards, the amortization
d then the process whether it is heard by Mr. Kiff, planning staff, Cit •
>uncil or Planning Commission, integral facilities, registration, short-ter
aging and overlay Issue
noted that the scope of the ordinance and applicability to the Sobe
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ving by The Sea and other operators licensed and un- licensed facilities.
r. Terzian argued that the regulations are pre - empted by State Law an(
aybe even Federal Law. He asked staff to respond.
Ir Marshall answered State Law protects licensed 6 or under. Th
:)osal does not affect those facilities except in the definition of integn
lity. We made the argument that because they are combined, the
ly are not six or under and that is a legal theory that is not tested, bi
think is an excellent argument that is defensible. That is the one are
;re pre - emption could be alleged to apply. Elsewhere, everything w
e written does not affect the licensed 6 or under.
rman Hawkins asked about the residents' proposal in connection
e and State and Federal Law on that issue and the discrimin
7s. Marshall answered the residents' proposal is much more targeted
my these uses that serve the disabled. It opens up the issue of faci
iscrimination issue. I have not seen evidence on the record of benefit th
would want to have there to defend those proposals. It may be that reco
ould be supplemental, but it is not there now. The other major issue is tt
:asonable accommodation section, there are hundreds of cases th
rticulate what standards a City could apply to a reasonab
ccommodation request. All the additional things that were added, many
iem are probably expressly prohibited by case law. That part
articularly vulnerable.
irman Hawkins responded that Ms. Taber acknowledged that th
iosal was facially discriminatory so that puts the City on the defense
point. The primary benefit that she explained was the institutioi
acter and how disbursing these disabled persons was a benefit
i. Has that argument been tried before in other disability and F
sing cases, and what has been the result?
Marshall answered Family style was a case on that. She agreed
argument was that institutionalization was the evil and barring
Id benefit the disabled. There are other cases where the issue
e up and it came down to whether there was evidence of benefit.
;s are in different situations where it was probably a lot clearer
were probably very many residential care facilities and that
ilations had been designed to keep out any. This situation is ell
rent with the over - concentration.
irman Hawkins noted the operators and disabled have argued
e 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
lies out.
S!Kautz added there are a number of cases where the courts look
3rticularly at separation requirements of 1,000 -feet or more, looked at t
irported benefits of that and almost always find that the evidence does
stify the benefits. This one from Children's Alliance versus the City
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311eview in Washington, the Court said that they should be wary o
stifications purported to help members of the protected class. The Court
could asses whether the benefits of the requirement clearly outweigh the
irdens. People have been presented some evidence that there may b •
>ckets that are clearly over - concentrated where there may be an
stitutional type environment, maybe something that is much more
irrowly drawn might be defensible. A general 1,000 -foot separation
quirement is the kind of language that the Courts tend to look at, it has
:en very difficult for us to find the evidence. The only kind of authoritative
)urce we could find was a policy position by the American Planning
3sociation (APA) that talked about one home per block. Perhaps with
ore research more evidence could be found, but that tends to be how the
Hurts look at this, particularly at a requirement of 1,000 feet.
hairman Hawkins asked, in terms of the narrow restriction, does the
rerlay zone accomplish the restriction that you are talking about that is
e 1,000 -foot requirement for all the City is not carefully drawn, but an
rerlay zone for pockets would accommodate it?
s. Kautz answered that staff has a map showing the location of at leas
:ensed facilities. There is a number of places included within the ma
at was drawn that have no existing at least licensed facilities and even for
e maps we've seen, no known unlicensed facilities. I don't think you
)uld prevent future over - crowding. Where there is evidence of existing
rer- crowding such as on 39th Street, there might be.
:)mmissioner Toerge asked for an explanation of the moratorium and •
ning issues. Also, with all of the materials we've just received, does this
:m have to be settled tonight? I know the residents don't want to extend
e moratorium but at the same time we want to consider this document. I
n not an attorney and not used to engaging in detailed language o
)cuments. Perhaps the City Attorney's office will agree with the strike -ou
:rsion presented by the citizens group but I think we need more time.
;sistant City Attorney Harp answered to have this considered by the City
:)uncil and adopted within the moratorium at the September 11th meeting
)u would have to make a recommendation by September 6th. There is a
t of material that has been submitted and we haven't reviewed every
:tail of the proposed language. If the Planning Commission feels it need
Iditional time, our office would recommend extending the moratorium to
ve an appropriate amount of time to consider it; given the amount o
aterial, that seems to be appropriate.
)mmissioner Toerge agreed, stating this has to be done right.
iairman Hawkins asked for a straw vote on the issue of timing.
)mmissioner Eaton answered there are substantial issues that need to be
viewed and there is not enough time to do them in one night. To give
reryone enough time, this would have to be continued and therefore a •
tension of the moratorium is needed.
)mmissioner Peotter noted he believes at least two meetings will be
;eded in order to review the materials and have a finished product with
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policy issues.
Cole agreed.
ssioner McDaniel agreed, adding he received information at the la
today and that he needs time to review it.
nissioner Hillgren agreed, stating he wants to focus on the bigg
s and let staff and counsel take care of the wording. We will need
another meeting.
iairman Hawkins noted it is unanimous that we will need more time to
is correctly.
imissioner Toerge noted the 75 -feet does not provide the kind o
iration I think is warranted given the creation of institutional character
h I think is a detriment to the handicapped. I am not sure what the
ince but it needs to be subjective. I support an overlay zone and the
;ical characteristics contribute to the detriment to the handicapped it
e kinds of operation. An area, such as Newport Heights where the
as are larger and further spaced out with bigger yards, 1 can see hog
;ibly an unlicensed facility would have a lesser impact than one six fee'
y on a Peninsula location where the lots are 5,000 square feet with 3•
setbacks. He suggested that straw votes be taken on each issue.
rirman Hawkins asked for a straw vote on the distancing issue
MmissionerToerge noted 1,000 feet may be beyond what is neces
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
Eaton noted he prefers the 300 -feet as it is
imissioner Cole clarified that the overlay zone is required before
create a greater dispersal of square footage. Is this correct, that y
to the overlay zone in order to make a case for institutional an
:by make a case for a greater dispersal amount. I would be in favor
language whether it is 1,000 feet or something less than that. I woi
9 it up to staff to come up with the most possible distance that can
9ed. I am in favor of that concept.
issioner McDaniel noted he agrees with Commissioner Cole. F
the overlay issue because it gives opportunity. Testimony th
ling indicates, that as well as some of these units are run, these peop
are handicapped, I am not sure how they fit into R -1 at all. It concer
when the setbacks are six feet and that no matter what the speci
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eeds are it becomes a big issue. If we can get as big a space as
ossible, I would support an overlay. and within that, however staff and
ounsel feels we can do that.
commissioner Hillgren asked if this applies to both licensed and non
.
-ensed facilitates?
Ir. Harp answered that the State prohibits the regulation of 6 and under
iat are licensed. This would deal with 7 or more that are licensed as well
s deal with 6 and under that are unlicensed.
commissioner Hillgren noted whether it is seven with a license or six
Fithout, it still effectively is a business. I believe we are dealing with a
:sidential neighborhood. At some point, when we bring some amount o
usinesses into the neighborhood, it converts from residential
eighborhood to a commercial district. I think we are trying to protect a
:sidential neighborhood. I look at it from that point of view, and whether it
30 -feet or 3,000 -feet, it is changing the old essence of the district. I
Fould like to get it is broad as possible and apply it to all.
:ommissioner McDaniel asked isn't licensed mean that they have medical
eatment?
Ir. Harp noted there are five criteria for licensing.
Is. Kautz added it is a low level of treatment such as counseling,
ducation, life planning plus what is called non - medical basically detox. I
•
a very low level of treatment before a license is required.
:ommissioner McDaniel asked would this be on site or off site?
Is. Kautz answered it means the operator is offering it on site. But the
Iso permit these integral facilities, which is where the language come
om in the proposed ordinance, where you have treatment services. You
an house residents in one building and provide the services in another
uilding provided that the buildings are integral components of the same
icility and licensed as a single facility. That is where we have the whole
efinition of integral facilities. These regulations only apply to drug and
Icohol treatment facilities, they do not apply to any of the other licensed
icilities like residential care homes for the elderly.
:ommissioner McDaniel asked if there is treatment on site in an R -1
isidence, it appears to me that we have changed the concept of R -1
;sidential housing. I realize maybe the State sticks that in our eye, and
,e can't do anything about it, but it certainly affects the zoning of our area
y the simple fact that there is treatment there.
hairman Hawkins noted he supports the residents and has argued in
Cher contexts that 1,000 -foot buffers are necessary between incompatible
ses. However, I understand what has been argued by both Specia
•
ounsel and Mr. Terzian. If the overlay zone and the buffer requirement,
,hatever it is, you have facial discrimination, that's it. The short -term
edging folks can just go home. Once we have facial discrimination we
on't really need to apply it broadly, we apply it narrowly and then we wait
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we hope that our argument regarding institutional benefits that
ronment is creating an institution which does not benefit the reside
they would be benefited by a further dispersion. I think that is a r
pent but I would not want to be making this argument on behalf of
because I think it is a loser; it is a pretext. I support the reside
re to get some control over this problem but I don't think the distant
the overlay zone is the way to do it.
)mmissioner 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
Ames into play?
s. 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 r
(where 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.
imissioner Cole noted with the straw pole we just went through, wh
general support for the concept of an overlay zone, which by the u
felt there might be some merit if it was narrow enough where we co
r over- concentration. My question, it is only under a use permit whi
9ispersal requirement would come into play, is that correct?
s. 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
irding 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
s. Marshall answered if you are going to do it, make it a narrowly to
one. You need to get some evidence in the record about the 1,00
rd 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
ay 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
ay zone and only rehab houses. These two are very different.
Hawkins asked about a new straw vote.
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ommissioner Eaton asked do you really want to start from the facial)
scriminatory point? I have a reluctance and I do not want to do that, to
rget rehab homes, and therefore virtually admit that we are being faciall
•
scriminatory. The overlay concept goes with that, and therefore, I have a
>ncern about the overlay zone as well.
ommissioner Peotter asked staff about an overlay zone and how it would
implemented.
r. Lepo noted that an overlay zone is not something that is common. You
3ve a scheme of zoning or development regulations that apply throughout
i area but within that area is a subset you find there is some problem or
tuation that you need to address. By applying an overlay that leaves in
ace existing development regulations but for some subset of that overall
-ea, apply some additional level of regulations. That is the overlay
>ncept in general.
ghat I wanted to bring to your attention was the map that we had pulled u
:fore showing known license facilities. Staff has discussed if we define all
West Newport and the peninsula as an impacted area and we were told
at looking at this map, where the overlay would apply and defining a
arrow overlay area it would be just the immediate vicinity around 39th
Ireet, but it is a very small area. Ideally, I would like to say that all o
'est Newport and the peninsula is impacted.
hairman Hawkins referenced the attachments to the residents proposal
.
at provided a basis for a different overlay.
r. Lepo answered that the impacted areas included Corona del Mar,
31boa Island, Peninsula and West Newport.
ave Kiff stated if this is a question of a correct map, if it is just known
sensed facilities, it's close to accurate, but if it indeed has unlicensed
)ber living, there is not nearly enough; 1 can't confirm.
r. Lepo answered for purposes for example, what you were saying was
3rrowly define an overlay area. So essentially, on this map each cluster
ould be one narrowly defined overlay area so we would have maybe to
i the peninsula, rather than the whole peninsula.
s. Marshall added that Ms. Taber said correctly, to apply citywide was to
oad because the whole basis for applying the overlay is
stitutionalization. You are only going to apply these special standard
here there is institutionalization because that benefits the disabled. The
ap was too broad.
ommissioner Eaton asked if it was fair to show a map of licensed facilities
hen we are talking about an overlay zone that would govern the
mditional use permit process for unlicensed facilities.
•
hairman Hawkins answered that may be, but let's focus back on our
scussion because you raised the issue of whether we wanted to
)proach this in a facially discriminatory manner and your position was no.
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did not hear Commissioner Peotter's perspective.
'ommissioner Peotter stated if you were to do something like goinc
Ileide with an overlay zone, could you do something along the lines o'
uses we consider institutionalizing of residential neighborhoods; if WE
re going to have these kinds of uses whether they be large daycare
ober living or whatever, we want to have them in areas where we havE
0 -foot setbacks instead of 3 -foot setbacks. Would that be a faciall}
iscriminatory overlay?
irman Hawkins answered if it is targeted to only the residential
!ties, 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
(ling out the disabled uses that you become facially discriminatory.
rldn'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 that
dential character of the neighborhood.
uses basical
might affe
issioner Peotter noted setbacks being at minimum lot sizes could
that negatively impact these neighborhoods based on this o%
itration of uses. If there was some way to do an overlay zone t
not be facially discriminatory but try to use standards where it wo
s impactful to the neighborhood, I would be in favor of the over
rman Hawkins affirmed you do not want to institute anything
d be facially discriminatory either.
nmissioner Cole answered that he would be in favor of looking into ar
day zone as the City has made a statement to the State Department o
:ice that there exists an over - concentration of residential care facilities.
r 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
ieve we should take advantage of the unique situation th e
concentration and allow ourselves at least the ability
persal requirement that will be greater than 75 -feet.
City has
to create
irman Hawkins noted his concern about that approach is the ill you al
Bating the benefit to the disabled but rather dispersing the uses so ft
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 th
bled, or a specific or targeted threat. I don't see that we have any r
e. The problem I see with facially discriminatory legislation is that pul
City on the defense immediately. If we can say, no, we are applyir
Io everybody and this is how it lays out, would be the better approach.
missioner Cole stated I've
oh evidence and we can
heard we can make a case. I think the
create enough defined zones. If there
100 residential facilities then we can make
a case that it has
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nstitutionalized area and it would be a benefit to the disabled in those
ireas by creating this zone.
ommissioner McDaniel agreed. He supports an overlay zone.
•
,ommissioner Toerge agreed with the overlay zone. There are certain
:haracteristics within those areas that contribute to this detriment to the
iandicapped. If we can foresee those qualities are in other
ieighborhoods, where maybe there currently is not a detriment but there
:ould be, maybe we can apply it, otherwise all we are going to do is move
he problem.
;ommissioner Hillgren noted being facially discriminatory troubles him.
the issue however, is one we can wrestle with in other areas and this
;oncentration issue is one that is so grand, talk about detriment. Whether
t is someone who is disabled or not, if you are living in a residential area
hat now becomes commercial, that is a detriment. That is the approach
and whether it requires an overlay zone or has a broader sense, I would
ike to start from a position that we are not defending ourselves but where
ive are practically saying we work to solve this.
chairman Hawkins asked if the proposal by staff and counsel does that?
ommissioner Hillgren answered it's getting there.
As. Kautz added that you can have an overlay that would have particular
• equirements for all conditional uses in that area because of th
•
;haracteristics of the lot size, for instance. You could have an overlay
!one that is not facially discriminatory.
chairman Hawkins noted there would be a separation in these small loll
iireas; that has to apply to all residential uses, that basically is what a
setback is. If you then apply a distancing for the disabled or residential
-are facilities that is larger than the single family, aren't you facial)
Discriminatory?
Ns. Kautz answered that within your overlay zone, you could not have
restrictions that would only apply to the disabled. It would have to be more
general restrictions to preserve the residential character of the
neighborhood and they would apply to schools, churches, inns, meeting
houses, clubs, lodges, etc.
Commissioner McDaniel noted there are at least 5 who like it so can we
move on?
Mr. Lepo stated that staff has understood from legal counsel that we can
not define the peninsula and all of West Newport as an overlay area that
has these conditions for purposes of applying these separation
requirements. They are talking about a matter of blocks. There are five
miles of beach with a very narrow strip of land that has one arterial in and
•
out, small lots with setbacks, commercial uses, and 40% of police
resources. We were still told we could not do this. Each one of those dot
on the map would be an overlay area.
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Kautz added that if you are going to have a facially discriminator
ance where you are going to try making a case where there is ai
utional character to the area, then you have very small zones and on(
) 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 yot
to apply broadly to conditional uses, then you could define small are(
has similar physical characteristics, like small lots, etc. Thos(
ations would not be applied only to residential care facilities. The Cit!
I 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
Ily 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
;ical characteristic so you need to develop your record.
Harp noted this map is not accurate.
mmissioner Toerge added Balboa Island and Corona del Mar for th(
y same physical characteristics that we are talking about, small lots
rrow alleys, etc. It is our job to make recommendations based upon th(
ation that we have received from staff, residents and specia
sel. All we are going to do is recommend to City Council. Being tok
at we can and can't do has come and gone. We are in a place when
have to make a recommendation based upon what we have learned.
is is not an exact science speculating what a judge might do. The Cit,
uncil will have to make the tough call on our recommendation. As (
inning Commissioner I want to recommend good planning and that is th(
sis I am making my recommendations tonight.
missioner Cole noted there is a majority for an overlay zone.
ay zone should encompass the entire peninsula, Corona del Mar
)a as it relates to small lots.
ommissioner Toerge answered based upon the map the resident:
roduced, I agree with that. It does include West Newport, Lido Island
alboa Island, Corona del Mar and there is one area I question is the aree
round Hoag. There is a lot of MFR in that area and I think the MFR is th(
lore appropriate location for this type of use. I would like to make thi;
roader to include those other areas with these same characteristics.
)mmissioner Cole agreed adding the language should be more nam:
lored in order to make a case so those areas where we are making
e have the over - concentration. In my opinion if we open up &
areas we are just going to be shot down. I would like to have
a look where there is over - concentration. That is where the prot
and that is what we should be focusing on to try to get dispersal.
Hawkins noted you are talking about actual areas of
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roncentration, not projected areas of over - concentration
Dommissioner Cole answered yes. Those cases we can make that truly
lave over - concentration; narrowly tailor it to those areas.
•
'ahairman Hawkins asked if staff had direction. The Commission is in favor
)f an overlay zone which may or may not target specifically the residential
;are facilities. I think the preference of the majority would be to have it no
>e facially discriminatory.
le then brought up the next issue of reasonable accommodations and
asked for input.
Or. Harp stated we heard two different proposals, one was focusing on
;mall lot areas and the other was on the actual impact. It would be good
or us to have direction on which way the majority would feel about that.
'ahairman Hawkins answered we talked about the overlay zone as narrowl
irawn as possible and an attempt to make it facially neutral.
I ommission Cole stated there are two different concepts. My suggestion
s to go with narrowly defined, where there is actual over - concentration.
;ommissioner Eaton added he would be in favor of an overlay that was
>ased upon the restrictions of the lots and that applies to all conditional
ises so that it was not facially discriminatory.
I
•
ommissioner Peotter added that was the intent. We deal with the over
: oncentration on the setback issue.
I ommissioner McDaniel noted he understood counsel to say that would be
he best way to deal with, to have it by lot size. I am in favor of more
Ieneral based on lot size and not facially discriminatory.
N'hairman Hawkins noted there is unanimity on this for small lot size
egulation.
,ommissioner Cole asked if we want to give direction on the footage, is
hat part of the same dispersal issue?
:hairman Hawkins noted we can go onto the dispersal requirement.
,ommissioner Eaton favors 300 -feet for all conditional uses.
,ommissioner Peotter favors shooting for 1,000 -feet and settling for 300
eat only for the residential care facilities. Using what staff has
ecommended by 1000 -feet instead of 75 -feet.
As. Marshall stated staff is not recommending facially discriminatory,
ather to apply to all conditional uses.
•
,ommissioner Cole favors 1,000 -feet or as close as we can get to it for th
esidential care facilities in an overlay zone.
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McDaniel favors 300 -feet for all conditional uses.
�ner Toerge favors all conditional uses a minimum of
support 1,000 -feet.
ommissioner Hillgren asked the length of the peninsula. He was told
/2 miles. That results in 15,000 -feet and we are talking about 15 potent
omes in that zone if this were to come true mathematically. If we a
oing to try to defend over - concentration and whether we are serving tl
eeds of our community, can we make that argument in 20 homes or le
i Newport Beach overall? I worry we've blown our argument if we go
,000 -feet. It strikes me we need to be at 300 -feet to be rational. Tt
+ould be for all uses.
iairman Hawkins noted he did not support the overlay zone as h
gards it as facially discriminatory, but if it affects all conditional uses,
ink maybe we have a shot. I do not believe the benefit to the residents
e residential care facilities is going to be a winning argument.
Harp noted it was indicated that the distancing only apply to reside
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 tl-
missioner Peotter answered the overlay has to apply to all condil
)ermits. I was recommending the over - concentration be applied
re 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 expai
:)rtunity for the public to participate.
missioner McDaniel supports this noting the residents need to
I and this is the forum where they will be noticed.
missioner Hillgren noted his agreement.
Cole noted his agreement.
Peotter noted his agreement.
Eaton noted his agreement.
in Hawkins noted there will be a lot more incidental requests
an administrative procedure as well as Planning Commie
then brought up the amortization issue.
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;ommissioner Toerge asked staff about choices on this issue. One
omment that we should abate all illegal uses, that's a no brainer.
•
;hairman Hawkins noted it is a timeframe issue. The illegal uses ar
liminated immediately, other uses that do not conform there is a shorter
me frame under the residents timeframe.
Is. Kautz noted Chapter 20.62 is only non - conforming uses and is no
legal uses. There is no such thing as an illegal non - conforming use, it is
ist an illegal use.
:hairman Hawkins noted, so illegal uses can be enforced by our cod
urrently?
Is. Kautz answered right, there is a separate enforcement section that the
;ity has.
:ommissioner Eaton noted language about the City may prosecute. On
�f the changes the citizens have made, and I agree with, is that the Cit
vii! prosecute. I think that needs to be made mandatory.
:hairman Hawkins: straw vote in connection with mandatory prosecution o
legal uses.
:ommissioner Peotter, not in favor of mandatory. I believe it should be the
liscretion of the City Attorney and Council.
•
:ommissioner Cole stated he was not willing to go that far.
:ommissioner McDaniel asked what prosecute means.
Ar. Harp answered the Municipal Code provides remedies to deal with
violation of the Municipal Code and one of those is administrative citations,
ximinal prosecution, civil action to get an injunction to basically enjoin an
Regal use. If a use is currently illegal than it would be subject to some
orm of prosecution. However, it is important to note that by adoption o
his ordinance there will be a creation of a lot of non - conforming uses, for
istance, you will now be requiring a use permit for all six and under tha
ire not licensed. That is an important distinction to make.
,hairman Hawkins noted they would not be illegal uses.
Ar. Harp answered they would be non - conforming.
ommissioner McDaniel noted he is not in favor of prosecuting but he doe
vant to make sure that they do what they are supposed to. The
>rosecution part is too harsh.
,ommissioner Eaton stated he used that word and it may have been i
•
:rror. He noted the current proposal reads the Planning Director may
ssue a written order of abatement and the residents' proposal is th
Nanning Director shall issue a written order of abatement.
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McDaniel noted he is in favor of that.
Peotter noted the Planning Director ought to abate it.
Marp noted you are starting to word smith. That is an issue we will
look at, I am not sure abatement is the correct term. Overall, there
rger issues to deal with.
Hawkins noted it is an important issue of whether it should
or discretionary. You would want that direction.
Ir. Alford clarified what Commissioner Eaton is talking about is a
here a use has gone through the process with the necE
otifications, the Planning staff and Planning Commission, the inv(
as been approved and then the abatement order goes out, that is i
nu wanted the no discretion.
ommissioner Eaton answered he is talking about the illegal uses
nes that go through the process are the non - conforming uses and
re 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.
nmissioner Eaton answered that is the language that I picked but therE
other places that talk about illegal uses and says the City may proceec
ate, whereas, the residents' change is the City will proceed to abate.
is significant.
Toerge favored using "shalt' instead of "may ".
Hawkins noted that was a majority.
rman 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 faciliti
ill 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
t to capture those folks. I think you want a numerical, in other words,
pie for Integral Facilities.
nmissioner Hillgren stated that just because they are separated by al
ress doesn't mean they are not integral. If you have two facilities tha
up to more than seven within whatever our defined radius is, that tc
is an integral facility. I think it ties to whatever our radius agreement is
tver that comes out. When it adds up to seven, looking at ou
itions that becomes integral, and that is where I think we ought to bi
lying our program.
Hawkins noted the current proposal is broader than that.
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not a segmenting or distancing requirement so that you fall out. If there
e two facilities within 2,000 feet of each other, under the current proposal
id they are functioning as one, then they get kicked into an integral
-ility. I think you get more regulation that way, then say if the tw
•
cilities are separated by 300 -feet then they are integral but if they are
thin that 300 -foot radius or other radius, they are integral. I think you
>uld lose your regulatory punch with including a radius.
>mmissioner Hillgren noted he supports regulation, but we need to be
tional and defensible in this. Part of our responsibilities is protecting the
sidents and part of it is protecting valid good businesses within our
immunity. I think it becomes integral when it is within the radius, once
�u get beyond that it becomes a question, in my mind.
iairman Hawkins answered the radius is going to prohibit. In other
>rds, you have two facilities of the same type within the radius, one of
em is going to be barred. I'm not sure that radius doesn't do exactly what
iu are talking about.
nmmissioner Peotter suggested leaving it vague so that if two facilities
e operating as one within the City limits, they are considered and
gulated as though they were a single unit. In addition to that add
nguage that any two that are owned by the same owner within 300 feet,
iy, they are automatically considered to be operating as one unit.
hairman Hawkins noted if there is a distancing requirement, it become
oot and one of those facilities will become illegal and they can't do it.
•
nmmissioner Toerge asked for a vote and suggested anywhere in an
ierlay zone, seven or more is integral. A radius in this concept is
elevant.
hairman Hawkins explained that if you have two within the radius, it
>esn't matter if they are by the same owner or not, if you are establishing
dius and you got two, then one of them is out of there. That's my point.
nmmissioner Hillgren noted it is integral when you have a similar
>erator/ owner.
hairman Hawkins answered that is the current regulation, which say
iywhere in the City, which I think you get more regulation.
nmmissioner Hillgren noted he does not disagree and will leave it up to
auncil.
nmmissioner Cole noted the definition in the proposed ordinance define
tegral facilities already. There was some suggested language that
arifies it more. Are you asking for a different concept? My understanding
'the concept is that integral facilities has a definition already in place.
•
hairman Hawkins answered that neither of them have a numerical limit. I
ink you need one. Commissioner Hiligren's concern is that we need to
3ve some scope over which we are going to consider facilities as
>nstituting an integral unit. We can say an owner can operate five within
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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.
missioner McDaniel asked to hear from counsel.
r. Harp noted that the issue is that we basically didn't put a number in fo
integral facilities. The way integral facilities works is if you have twc
ensed facilities working together then we consider that integral.
iairman Hawkins is saying you could have one that is licensed for three
id one licensed for two so you are not getting over seven. He would like
add a number in there to say basically there are two acting together tha
over seven.
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 moo
ding integral facilities. That is where the 7 shows up and those, if the
operated integral and they get over 7 then they are prohibits
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 i
iit. 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 thi
irman Hawkins noted he was under the impression that an into
ity was only regulated if it were over 7. Ms. Marshall is clarifying
ar 7 can be regulated. That is fine if that is the impact.
Marshall added it is regulated anyway whether it is integral or not.
missioner Peotter noted he thought licensed facilities under 6 are
ated by us.
Marshall answered that is correct. The leap is that if they are licenss
: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 yo:
require a use permit and it can't be in an R -1. We can look at tl
uage of 7 or more.
ssioner Eaton noted the residents maintain integral should not
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mited to residential only and that integral facilities should include those
rcilities that have treatments in commercial zones. The special counsel
iaintains that doesn't have a residential impact.
•
Is. Marshall noted the whole theory of all of this regulation is we are
1gulating impacts on residential neighborhoods. If services are provided
i the residential neighborhood that is what creates the impact that make
quasi - commercial, it's a business. If the services are provided in the
ommercial district that doesn't impact the residential neighborhood an
ifferently than five senior citizens who live on one block all going to the
ame doctor in a commercial district. That is the theory that if you add
eatment outside the residential district you remove the rational for the
1gulation in the first place.
;ommissioner McDaniel noted tonight's testimony is that within these
:sidential areas they pick up and transport them to other areas, so there is
connect between those that impact the residential area by the nature o
ie fact that they are two facilities that operate as one. So they are
onnected by transportation and that seems to be a big issue that impact
ie residential area. Seems like they are connected as one unit in and out
f the area.
As. Marshall answered that you regulate that through the use permit
rocess by imposing conditions about pick ups, etc. You don't say these
eople can't go into the commercial districts for service.
: ommissioner Peotter noted as he understands it you have two licensed
•
rider 6 homes and the bus goes and picks up clients from one house and
ien goes to the other house to pick up the clients in order to transport
iem to counseling treatment in the commercial district, we don't have a
se permit process for the under 6 licensed, and they would not qualify as
,eing operated as one unit because they are not providing services in their
ome combined such as counseling, eating, etc., that is what we are trying
) regulate because you have these buses and vans that come into the
eighborhoods. I think that is what we are trying to get at, how we define
ow these guys operate as integral units, they could provide a third
)cation and still operate as one unit.
As. Marshall noted we are taking a big step saying that something that is
irotected by State Law as a 6 or under, we are going to see you as
omething other than a 6 or under. I think you are pushing it too far if you
ay the services are not provided there they are provided in a commercial
area. It is just a question of risk. Think of other disabilities, people who
ve in single family home, those are the people who are picked up by
ans. That is why there is pick ups here because we have people with
Iisabilities. Those parallels will be drawn.
:hairman Hawkins stated it was suggested that if we extend it to the
ommercial districts or zones that we lose the protections because we are
31king about impacts to residential zones, that is your argument. So w
•
ire going to regulate these state licensed facilities because they are
unctioning as a unit and impacting the residential zone.
As. Marshall answered yes
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Is. Kautz added that the other theory is that there is language regardint
ie alcohol and drug treatment facilities that talk about integral facilities.
Ithis definition, the City is essentially saying you are supposed to N
sed as an integral facility for all your facilities. You really have twely(
eople, eighteen or whatever, not just six. A lot of this is either from the
1gulations or from the statute. As soon as we throw in the commercial ou
rgument gets much weaker.
missioner Cole favored keeping the language the way staff
)sed (residential only).
missioner Hillgren agreed.
missioner Toerge favored including the commercial.
missioner McDaniel noted he agrees with residential only.
missioner Peotter favors residential only.
missioner Eaton favors commercial.
Hawkins brought up the issue of non - conforming.
missioner Eaton noted the process and abatement time different
,-en the ordinance proposed by staff and by residents. Staff involves
rss where the non - conformities are identified and brought to tf
mission and the Commission ratifies those identifications. At th
they will have two years to process. The residents proposal was
with a one year abatement and not involving a listing brought to tt
mission.
Is. Marshall answered the reason for the difference is because there is
me period to apply for a conditional use and making sure everybody ha
otice, that applies to them and the time is starting to run. If it just run
om the date of the ordinance, don't forget it covers all non - conformin
ses. You have somebody who needs to apply for a conditional use an
iey don't realize it applies to them because they think it only applies t
roup homes because that is what is in the newspaper. The idea was t
ive notice and give the people an opportunity to be heard. It is more wor
nd time and expense for the City but we were trying to balance the right
f the property owners not to be abated without knowing the were subjec
> it.
iairman Hawkins noted one of the rationale for creating the overlay
this over - concentration. So cant we make that finding?
Marshall answered you were going the other way having the
e based on lot size to be broader.
'Kautz added that it is giving people notice that they are
Drming and giving them the opportunity to argue about that.
an of proof is on them to prove they were legal before. This is set
process and taking issues for the City and when you amortize the
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s when people make the taking arguments. People can also argue that
hey need more than two years through reasonable accommodation or an
economic argument.
•
lommissioner Eaton noted two years at a minimum is necessary.
,ommissioner Peotter favors staff recommendation.
Dommissioner Cole favors staff recommendation.
Dommissioner McDaniel favors staff recommendation.
,ommissioner Toerge favors staff recommendation.
Dommissioner Hillgren favors staff recommendation.
\As. Marshall stated that the over - concentration issue is applied on a going
brward basis. In the citizen's proposal it is applied to existing uses. I
3taf 's proposal they come in to apply for a use permit with all the
- onditions except one per block. The reason it is that way is the idea tha
you would have to choose between existing ones, which one is going to be
abated if you are violating the spacing requirement. It seemed way to
much potential for a taking issue and a discrimination issue. The citizens'
proposal says you will apply that but it doesn't say how. You should talk
about that.
Chairman Hawkins stated if the distancing requirement is greater than 75
•
feet as staff has suggested, then that taking issue expands, right?
Ms. Marshall answered yes.
Commissioner Toerge suggested he would like more information on this
issue such as how to choose, etc. otherwise we could be creating
entitlement and people are not going to move. 1 don't want to enact
something we just can't do so we need more input from staff.
Commissioner McDaniel said he would like more input as well before he
makes a recommendation.
Commissioner Cole agreed.
Commissioner Peotter agreed.
Commissioner Eaton agreed they need more information.
Commissioner Hillgren noted if these group homes were good neighbors
we wouldn't be trying to regulate with land use issues. Is there any other
;way to regulate or manage what is going on?
Mr. Harp answered there are other ways to regulate some of the impacts.
.
For instance you could increase regulations on outdoor smoking, othe
that you can apply city -wide.
(Chairman Hawkins suggested that staff look at other ways of regulating
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Planning Commission Minutes 08/09/2007
asked if there were other issues.
ier Peotter noted the residents brought up the issue
of licensed and unlicensed units.
Os. Marshall said the latest residents' proposal does not inclu
egistration of small licensed. Their proposal is to register everything el
hat is not protected by State Law. It is the same facially discriminate
ssue that it only applies to this particular use and added we can get sor
)f this information in another way and it was pointed out that through t
>usiness 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 tl-
finer. Almost all of these uses are going to need use permits except i
ones that are licensed by the State.
iissioner Peotter asked how the City uses code enforcement to
small unlicensed facilities?
Or. Harp answered that typically code enforcement is a complaint driN
system. If we receive a complaint that a property may be suspected
sither being a boarding house or some other current illegal use
nvestigation is formed to determine what the use of that property is a
hen an analysis is done on whether they are violating the code and if
I& is taken through one of the remedies.
Peotter asked how many of the homes should be licensed.
Os. Marshall noted that is one of the biggest areas of abuse, homes
should be licensed aren't. They are doing detox and they should
icensed. That is a different procedure; they would be reported to the S
and the State would enforce and they do.
an Hawkins noted if we pass this ordinance, they could also
sd by the City, correct?
Marshall answered they would become an illegal use subject
�diate abatement because they require a license and they don't N
,id Kiff, Assistant City Manager, stated the approach on all inten
dential uses and nuisances is not merely complaint driven though th
helpful; it wouldn't be the only tool used.
nmissioner Peotter stated if we have active code enforcement and
these unlicensed facilities into the use permit process, it would allevi
�roblem. An additional requirement for registration is not necessary.
missioners Eaton, Cole, McDaniel, Toerge and Hillgren agreed.
nmissioner Eaton noted the residents group had suggested additio
ings that could be made for both reasonable accommodations a
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>nditional 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. •
tall can get statistical information on how much area in the City is
iailable for R1.5 and R -2 and MFR.
Dmmissioner Eaton noted if we can't allow the 6 or less to even apply in
e R -1.5 and R -2, then we are being overly restrictive. We have discretion
i those conditions at the hearing and we need to continue to allow them
at least apply in the R1 -5 and R -2.
Dmmissioner Peotter favors further restriction in R -1.5 and R -2.
Dmmissioner Cole favors no further prohibiting.
Dmmissioner McDaniel favors no further prohibiting.
Dmmissioner Toerge favors prohibiting them in R -1.5 and R -2.
Dmmissioner Hillgren favors no further prohibiting.
otion was made by Commissioner Toerge and seconded by
Dmmissioner Peotter to continue this item to September 6th and have
aff come back with an outline of the items discussed and results of straw
)tes. To the degree there are other issues, they prepare a succinct
)mparison of choices. •
>Ilowing a discussion regarding the holiday it was decided to continue thi
:m to September 20th. Special Counsel agreed they would be availabl
at date. The maker of the motion agreed to the date change.
Ayes: I Eaton, Peotter, Cole, Hawkins, McDaniel, Toerge and Hillgren
Noes: iNone
Recused:1 None
ADDITIONAL BUSINESS: ADDITIONAL
BUSINESS
City Council Follow -up - Mr. Lepo noted the appeal that was filed
333 Bayside was withdrawn; Council directed the applicant of 1
AERIE project to re- design the project and use the 50.7 feet abc
mean sea level originally proposed by staff as the predominant Ii
of development on the bluff face. Discussion continued on t
Council deliberation of this item. The Newport Beach Brewi
Company resolution is to be re- worked and brought back
signature.
b. Report from Planning Commission's representative to the Economic
Development Committee - Chairman Hawkins noted EDC was dar
this month. •
C. Report from the Planning Commission's representative to th
General Plan /Local Coastal Program Implementation Committee
Commissioner Eaton noted there was a discussion of more use
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Planning Commission Minutes 08/09/2007
d by right with standards and there was a discussion on nc
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.
ADJOURNMENT: 11:00 p.m.
BRADLEY HILLGREN, SECRETARY
CITY OF NEWPORT BEACH PLANNING COMMISSION
•
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