HomeMy WebLinkAboutpc minutes - 08-23-07Planning Commission Minutes 08/09/2007
CITY OF NEWPORT BEACH
Planning Commission Minutes
August 23, 2007
Regular Meeting - 6:30 p.m.
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INDEX
ROLL CALL
Commissioners Eaton, Peotter, Cole, Hawkins, McDaniel, Toerge and
Hillgren:
II Commissioners were present.
STAFF PRESENT:
David Lepo, Planning Director
Aaron Harp, Assistant City Attorney
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
None
None
POSTING OF THE AGENDA:
POSTING OF
THE AGENDA
The Planning Commission Agenda was posted on August 17, 2007.
HEARING ITEMS
SUBJECT: MINUTES of the regular meeting of August 9, 2007.
ITEM NO. 1
Motion was made by Commissioner McDaniel and seconded by
Approved
Commissioner Toerge to approve the minutes as corrected.
Ayes:
Eaton, Peotter, Hawkins, McDaniel, Toerge and Hillgren
Noes:
None
Abstain:
Cole
ITEM NO. 2
SUBJECT: Code Amendment 2007 -005 (PA2007 -112)
PA2007 -112
Continued to
Proposed amendment of Title 20 (Zoning Code) of the Newport Beach
September 20,
Municipal Code to revise definitions, land use classifications, and
2007
regulations relating to group occupancies and short -term lodgings.
Mr. Lepo noted this issue had been heard and continued from the Planning
Commission meeting of June 21st. At that time representatives of
Concerned Citizens of Newport Beach presented a list of issues that theYl
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Auld like the Commission to consider in any proposed ordinan
dressing group occupancies. The Planning Commission directed staff
tiew the list of issues and revise the ordinance accordingly wherever t
lal staff and consultants felt were legal and acceptable. If there WE
lal issues that prevented those issues being included, staff was
wide a report. The draft ordinance has been revised wherever possit
reflect those issues.
Alford noted the following overview of the proposed Code changes
it was submitted in June and revisions made to date:
Adds specific and detailed land use classifications for groi
occupancies to maximize land use control consistent with State at
Federal laws;
Residential Care, Limited will be replaced with two new u:
classifications - Residential Care Facilities, Small Licensed that is
or fewer persons with disabilities and must be continued to I
permitted by right in residential districts per State law, and;
Residential Care Facilities, Small Unlicensed - 6 or fewer persoi
with disabilities, requiring a use permit in R -1.5, R -2 and MF
Districts and the equivalents in Specific Plan (SP) Districts;
Residential Care Facility, General - covers 7 or more persons wi
disabilities, limited to the MFR Districts, the equivalent in Speci
Plan (SP) Districts and requires a use permit;
Group Residential - dormitories, fraternities and sororities H
continue to be prohibited in all residential districts except for tho:
serving the disabled persons;
Boarding House - a new land use classification and is prohibited
residential districts;
Parolee- Probationer Homes - a new land use classification and
prohibited in all districts;
Convalescent Homes and Hospitals will be prohibited in Resident!
Districts;
Vacation Home Rentals - a new land use classification is added
reflect existing short-term lodging permit regulations, continue to I
permitted in R -1.5, R -2 and MFR Districts; new rentals prohibited
single -unit districts since 2004, and that will continue; in the stc
report it was indicated 88 valid permits in single - family areas, tt
actual number is 118 and 30 of those are currently active;
In commercial districts public assembly is to be prohibited in We
Newport and Balboa Peninsula SP Districts such as clubs at
lodges; no proposed changes to regulations on Religious Assemt
due to the protection under the Religious Land Use at
Institutionalized Persons Act of 2000;
Business and professional office - services involving the assemt
or meetings of 7 or more persons are prohibited in West Newpc
and Balboa Peninsula SP Districts;
New definition of Integral Facilities - 2 or more Residential Ca
Facilities under the same control and management come and
Residential Care, General use classification whether in san
building or different parcels, and are subject to use pem
requirements and other land use controls;
New Chapter 20.91A (Use Permits in Residential Districts) - applif
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to all uses requiring use permits in residential districts and applies
all uses such as bed and breakfast inns, day care, schools, el
intended to preserve the character of residential neighborhoods a
include special application requirements, development a
operational regulations, extended findings for approval, a
provisions for over - concentration and separation such that the C
determines there are adequate facilities for any given use, we c
require that only one (1) such use be permitted on any block with
additional 75 -foot separation requirement;
New Reasonable Accommodation Chapter - sets procedures
provide reasonable accommodation in zoning regulations; provid
the disabled equal opportunity to use and enjoy a residence or av(
discrimination on the basis of that disability; and, these reques
would be approved by the Zoning Administrator, unless part
another discretionary permit;
Amortization and Abatement - nonconforming uses and structur
legally established; illegal structures and uses are addressed unc
20.96 (Enforcement); within 120 days the City must begin to ident
and inventory all nonconforming uses in residential districts; noti
will be sent to owners of property identified by the inventor
property owner will have 45 days to submit an applicati,
demonstrating that the use is conforming; Planning Commission v
hold public hearings to approve the inventory; the abatement peri
is 2 years from the date of approval of the inventory and tl
Planning Commission will consider applications for extensions;
Existing uses that are no longer permitted in the Residential Distr
will have to be discontinued;
Existing uses that require a use permit will have to apply for u:
permits and applications can be approved, conditionally approvE
or denied; and, will be subject to current regulations ai
requirements;
Non - conforming uses that relate to dwelling unit type will not I
subject to amortization and abatement.
Marshall, special counsel from Goldfarb and Lipman, noted:
proposed ordinance deals with the issue of non - residential uses
lential zones. The goal is to have an ordinance that addresses tl
imate issues that have been raised in a way that is not facia
•iminatory. For example, over - concentration is dealt with by dealh
all conditional uses in residential zones, understanding th
litioned uses tend to be for non - residential or quasi - residential in son
It applies to all conditional uses and doesn't just apply to resident)
facilities. If the City already has enough of a particular use to meet
and, then a minimum standard must be met, which is no more th,
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
ise by case analysis to see what that particular use would do in th
articular location. If it would change the residential character, you ha%
e broad discretion in a conditional use context. Another example tak(
not be facially discriminatory is with the abatement provisions. If a u:
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ermit is required where it was not before required, a facility or a use woi
ave to apply for the use permit and that applies to any change in 1
:)ning law. All uses would have to apply for a use permit. If a use
rohibited, for example now you can have a small unlicensed group hoi
i a single family district, but if you pass this proposal, it is prohibited. W
ie larger ones, you will only be allowed to have them in a multi -fart
istrict. If that is the case, or if they apply for a conditional use and they a
enied, then they will have to be abated and the use will have to
mortized. The ordinance does not say it only applies to residential ca
icilities, that is not the case, it applies to any conditional use, so it could
private school. We did this because we are trying not to be facia
iscriminatory in the ordinance.
iat is not in the ordinance that the citizens requested are registration an(
acing that only applies to residential care facilities. To do so, would be
;ially discriminatory. Facially discriminatory means that on its face, in at
finance, treats protected groups of people, in this case, disabled people
ferently from other people. There are two kinds of discrimination, facia
discrimination as applied. As applied is when a law is neutral on its face
t the people enforcing it discriminate by only going after a particular kin(
people. The legal standard for facial discrimination, which is what we are
ing to avoid, is what would a court look at to say whether it is illegal o
t. The case cited by Concerned Citizens (Familystyle case in St. Paul) i,,
the 8th Circuit which governs that part of the country. This case had a
acing requirement that applied to residences for people with menta
ess and there was a legitimate state interest of avoiding the
;titutionalization of these people and so it was upheld. We are in the 9tt
-cult and in November 2006, there was a case called Community House
City of Boise, and they explicitly rejected the legitimate state interes
indard that was used by the 8th Circuit. They said in our Circuit, facia
;crimination is legal only if it benefits the disabled or addresses legitimate
fety concerns. They went on to say it cannot be based on stereo -type.,
subjective opinion, it must be based in individualized analysis of a
rticular situation, the safety concerns. March 2007 there was a case ou
Nevada on spacing requirements for residential care facilities. It cite(
rise and said this is not legal. It was a spacing requirement that wa:
opted by the State of Nevada and then adopted also by Clark Count
d it was found to not be legal because it didn't meet one of the two tests
litimate safety concerns or benefits to the disabled.
came up with a proposal that is not facially discriminatory. There
places in this ordinance where residential care facilities are sin
One is special standards for unlicensed 6 or under, and the sec
is the over - concentration standard. [She noted and explained the
that are part of the packet and in the record.]
e alternative proposals in the proposed ordinance, we rejected becau
concerns of facial discrimination as they go after just this one use it
rves the disabled and there is no record of benefit. There is assertion
nefts but there needs to be evidence of why these things benefit. Th
somewhat over - reaching and you can't make an argument for benefit
disabled of spacing with parks or restaurants. Issues are so bro
Lead of dealing with the residential character of neighborhoods a
acng with all conditional uses.
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imissioner Peotter asked for an explanation of the aspect of disa
abatement of a current use that did not have a conditional use pe
fuse it was not required originally.
Marshall noted there is a definition in the draft ordinance proposal.
Lability is a protected class under the Fair Housing Act. All of thi:
alysis is a Fair Housing Act analysis. The Fair Housing Act wa:
fended to include disability and disability expressly includes addiction tc
igs or alcohol but excludes those currently using an illegal substance.
ople who are addicts but not current users are considered to bE
abled. Parolees are not a protected class. Any use that now requires s
rmit would come in and apply for the permit. If it didn't have one beforf
d was not required to have one before, they would be a non- conforminc
e and would be given a certain amount of time to apply for a permit. I
permit was denied they would have to be abated in a two -year period.
e abatement is required in residential areas only.
explained the benefits of the comprehensive update of the
and city -wide rezoning.
missioner McDaniel asked how the City will know who is living in
:y if they are not allowed to ask as parolees are not a part of
acted class.
Marshall answered that if you believed you have a parolee home, yot
ask because it is prohibited. You can't ask if somebody is disabled
you can ask if someone is a parolee. If they are licensed, six or under
shouldn't ask that question unless you ask it of every single family
ie. But, for the other ones, yes, you can certainly ask that question.
>mmissioner McDaniel noted the predominance of alcohol rehab home:
e in District 15, which has the highest amount of calls for police service.
or the protection of our citizens does it make sense that these homes ar(
the same area, does it make any difference?
Marshall answered the use of alcohol is legal. To say we have peol
t a disability which is they used to be addicted to alcohol and they a
longer drinking and you can't come live next door to a fratemity hou
;re there is drinking, that is discriminatory and is limiting their housi
ices. It is in the guise of perhaps protecting them from exposure to
it is exposure to a legal activity. It would be seen as over - reaching.
)mmissioner McDaniel noted if every home in R -1 had six or more pe(
it, which they don't, that certainly would affect our view on how to z
at area in terms of parking, etc. Families do not have six or more so
fining we have for R -1 addresses what is normally in that area. W
are is a concentration of those facilities in that area, aren't we basic
- zoning that area when there are up to twelve people in a duplex? l
not normal for our zoning.
Marshall noted this is what to look at when deciding what has
residential character of the neighborhood.
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-bara Kautz, Special Counsel, added that the only facilities under th
inance permitted in R1 areas are the licensed facilities. The Sta
uires that you treat licensed facilities for six or under like single -fami
nes. The unlicensed facilities, under the proposed ordinance, would rn
permitted of any size.
ssioner McDaniel noted the beachfront area has different phy
,es than most cities. Right now they are R1 and could we say
g that falls under Coastal Commission jurisdiction has ce
or specific concerns, etc. is there any reason we couldn't put sp,
on this special area?
Marshall answered yes. To make a zoning classification, it has to be
:ional and promote the welfare. If it is a classification that affects
Aected group, like the disabled, then it has to either benefit or address
litimate safety concern. If you want to say because it is near the ocean i
a legitimate safety concern that is something that can be said but yor
ruld want to have evidence in the record as to why there is a legitimate
fety concern for this group of people that doesn't relate to other groups.
scussion continued.
mmissioner Hillgren brought up the issue of protection of former users
designated as disabled and the loss of the protection when they resur
of drugs and alcohol. Specifically, what is the City's ability
:ermine whether occupants are either current (unprotected) or fora
otected) users?
Marshall answered she counsels that a line be drawn and be appliec
istently. She then discussed the issue of testing and the ramifications.
Eaton brought up the issue of separation and
Marshall noted the idea was to have one facility per block but
ht have one on the edge of the block that was across the street
ther one and the 75 feet would cause the second one to move c
block as it would cause over - concentration.
nissioner Eaton asked about discretionary process as opposed to
distance requirement.
Marshall noted it was to avoid the facially discriminatory aspect
on to explain.
Kautz added that the Pasadena ordinance, with the 500 -foc
ncing, is an administrative reasonable accommodation provision an
ies in every residential zone and is more lenient. It allows unlicense
ties for six or fewer people in every residential zone including R
is. The separation requirements are between unlicensed facilities an
for the older ones but there is no separation requirement from dru
alcohol homes or residential care facilities, licensed drug and alcohc
as or residential care facilities for the elderly, which have no spacin
irements. The only notice given for reasonable accommodations is t
cent neighbors. Discussion continued.
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nmissioner McDaniel noted the issue of care facilities being allowed
R1 zones. However, a company that owns multiple facilities is putti
inesses in the R1 and changing the character of that zone. As a C
should have some rights to say this is operating as a business a
efore we would like to have some understanding of what is going on.
Os. Marshall noted this is what makes it so frustrating. That is what we
rying to deal with in the integral facilities definition. It is pretty aggressi
and deals with the ownership and operation of six and under now operati
n the multiple units in the R1 zone. Under the new rules, if it is more th
i it would have to go to Multi- family Zone. That is what we are trying
Jo. There is State law that gives them protection if it is 6 and under a
icensed. We are hoping to make the case that there are egregic
;ituations 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 c
; in an R1 zone.
Marshall discussed the issues of Building Code violation
cement regardless of the disability, and the use permit findings
)mmissioner Hillgren brought up the issue of licensing. What
available for business licensing by the City?
Marshall answered the license is issued by the State of California.
:ensed 6 and under, is not that they are illegal because they
:ensed, the State does not license them because they don't pro
ical treatment. They are operating legally.
Kautz noted the business licensing for the City is solely for
:ration purposes. They have no regulatory purpose.
;istant City Attorney Harp added that you can use business lice
cess for regulation; however, the fees have to be tied to the cost of
ulation as opposed to straight revenue generation.
missioner Peotter asked about the 8th and 9th Court decisions.
appealed to the Supreme Court?
Marshall answered, no.
hairman Hawkins asked where the staff report document titled "
id Drug Treatment Needs: Has Newport Beach Addressed its
ime from?
Marshall answered it was prepared by City staff.
Orman Hawkins asked about the difference in the standards
8th and 9th Circuit Courts.
GMs. Marshall answered that the 8th Circuit decision is a minority andl
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istributed an excerpt regarding space requirements from a legal
r "hom book ", which is a summary of land use law.
rman Hawkins asked if the ability to apply for a use permit for
are really boarding houses, and other uses regulated by the prof
lance to remain in certain residential zones, isn't that a reaso
Marshall answered, yes because the City does not allow any of the
p residential uses except in the limited situation where it is
lential care facility for the disabled and now you are layering on top
the conditional use requirements, so you are making it stricter. T
e scenario is, in a sense, reasonable accommodation.
irman Hawkins asked if there was a way to reflect this in the ordinan
these are part of the reasonable accommodations.
Marshall noted that they are trying to make this point that group
prohibited everywhere. That shows up in several different places
would be good to put in the findings.
is Comment was opened.
airman Hawkins noted that this hearing is to address issues relating t(
proposed ordinance regulating non - residential uses in residentia
tricts. We are not targeting any specific groups or individuals and wan
insure through these and other regulations that the City welcomes al
luding those with disabilities and other challenges, and seeks to improve
community for all including those with disabilities and other challenges.
blic comments should be directed at theses issues, not at personalities,
e earlier hearings did just that and it is a credit to the City and al
understand that the residents' group has representatives here and that
ie residential care facilities have representatives here. In the hope of
:reamlining the hearing, I will allow these representatives some extra time.
)w much time do you need Mr. Tidus. Mr. Tidus indicated five minutes
indicated that Ms. Taber would need more time. Chairman Hawkins
A that he would allow the extra time: five minutes for Mr. Tidus and as
uch as ten to twelve minutes for Ms. Taber.
ichael Tidus, partner in Jackson /DeMarco/Tidus /Petersen /Peckenpaug
iw Corporation, speaking for community members noted the use of stric
:rutiny standard and the use of rational relation as applied in the 8th an
h Circuit Courts decisions related to spacing issues. Referencing th
int statement of the Department of Justice and Department of Housin
id Urban Development he noted identified items that could be addresse
( the City including density restrictions. Over - concentration is okay t
gulate if you can show density is a problem. We don't believe there is a
rer- concentration city -wide, it is in certain areas of the City whit
storically are densely populated with very closely situated homes. W
-opose an overlay district and within that overlay district if there is a grou
)me that seeks a conditional use permit during that process the 500 -foo
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,000 -foot, or 1,500 -foot should be applicable. You can always have
sasonable accommodation if it is determined.
le agree with the American Planning Association (APA) position tha
lentifies not more than one per block as contained in the staff report. y
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 accommodatior
earings. Provisions need to be written in so as to prevent applies
buses. 75 feet is basically every other home. We believe a more rationa
istance is 1,000 in those areas where we have over - concentration. Ther(
re more than 100 of these homes within a mile and a half. He then cite(
ther cases. The registration requirement shouldn't be a problem.
loticing the neighbors should follow the City's normal procedure.
nan Hawkins asked that Mr. Tidus make a copy of a binder with k
that he had presented to one of the Commissioners available for
. Mr. Tidus agreed.
ne Taber, partner in Jackson /DeMarco/Tidus /Petersen /Peckenpaugt
ro Corporation, speaking for community members noted the issue o
.r-concentration. The City Attorney in August sent a letter to the State
partment of Justice affirming the fact that in this City there is an over
icentration of residential care facilities noting that in pockets of higt
icentration the community character has been changed from residentia
institutional. Citizens have provided evidence of safety concerns an(
ues of benefiting the disabled. We think it would be better served if the
y adopted an overlay zone that only focuses requirements in those
;cific areas where over - concentration exists rather than a huge net t(
)ture all types of conditional use permits. We had proposed an over
icentration zone and attached a map that would also be part of a
iditional use criteria and would be evaluated by the Planninc
mmission. We had requested that the City adopt a prohibition of thes(
es of uses in the R1, R1.5 and R2 as they are uses that are more
)ansive than the City had originally intended for these areas and ar(
ire akin to multiple family zones.
he second issue is non - conforming uses. The City should abate illeg
ses immediately and there should not be an opportunity for illegal uses
,ait until the City conducts an inventory. There are no provisions forwh(
n applicant who had to get a use permit, when they should get one so v
ropose a schedule of 60 days to submit an application and 180 days
btain a permit with a potential for a time extension in the event it takes
finger time. We proposed a registration requirement because it
nportant the City have an understanding of where these particular us(
re. The burden should be on the operators to tell the City rather than tt
ity 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
ning 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.
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last issue is public participation. It is an essential part of gc
rnment and the proposal by staff cuts the residents out of the proce
that is the issue of reasonable accommodation. There should be
ortunity for full public notice and hearing. Public notice should go
property owners and occupants.
recommend that you adopt the ordinance as we've proposed
rmmissioner Eaton asked about the map presented and the
the impacted areas.
:. Taber answered that the map reflects all the characteristics that I
I to the problems and the area where they currently exits such as c
rking, narrow streets, large homes on small lots, etc. There are r
:ilities coming up particularly in Corona del Mar and that is why we
look forward and include those areas where the problem could exist.
iissioner Cole asked about the proposal for a residential care ov(
and what would be the basis? Are you using the 8th or 9th Ci
3. Taber answered that there is a long history of dealing with issues
ms of dealing with overlay zones. When there is a particular need a C
within its right to identify where those impacted areas are and then try
3ke regulations that only affect those particular areas. We have includ
3t potential overlay zone in there.
,ommissioner Cole noted the concept of the overlay zone is someth
hat would be benefiting the disabled because we are creating
nstitutional area or an area that might have narrow streets, setb;
equirements, etc, are we making a case we are creating that zone
actually help the disabled, therefore we can regulate it differently? Can
;reate a greater dispersal zone? What other cities have an overlay zc
Is. Taber answered that in the cases that have been cited, one of
,sues is what is the benefit to the disabled? Certainly the law is clear
re disabled don't benefit from the idea of them being in a residential E
nd instead of being placed in a residential area they are placed in
istitutionalized zone. These are the areas that the City agreed
;presented to the Department of Justice that there were these pocl
rat existed in the City where the nature of the of the City had than
om residential to institutionalized zones and what we tried to do with
verlay zone proposal was to identify what those pockets were.
In those particular over - concentrated areas, the City has agreed that th
rave turned it into institutionalized zones so the way you move those are
rack to not institutionalized zones but residential areas is to create
Iispersal requirement to disperse these types of facilities throughout t
:ommunity, which benefits the disabled because then they have t
)pportunity to truly live in a residential area.
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There are cities that have established distance requirements such as
City of Murrieta that has a 1,000 foot distance requirement and the
other cities that you have already heard about. Those are city -u
requirements. We propose that the City not adopt a city -wide requiren
and tailor it only to those particular areas where the impact exists. C
having a long tradition have the authority to regulate from a land
perspective and cities are adopting overlay zones that allow them to c
ith specific issues.
missioner Cole noted that staffs concern was that we had to I
` that this was actually going to be beneficial to the disabled. Are
esting a way to do that or do we meet that threshold?
;. Taber answered we do meet that threshold and how we meet th
eshold is a couple of ways. We presented the map that shows all of ti
;as that we have been able to locate where these existing facilities a
d there is more than 100 of them in a mile to a mile and a half distanc
it shows over - concentration. There is the City's own assertion at
)resentation to the Department of Justice where these pockets hal
en created that have changed the character of the neighborhood fro
,idential to institutionalized zones. There is broad recognition in AF
imals, Department of Justice family style cases where they specifica
k about the fact that it is not beneficial to the disabled to be located in
mmunity that is so over - concentrated that the character of ti
ighborhood has changed from residential to institutionalized zone.
Hillgren brought up the issue of the basis for a 1,000
s. Taber answered that the City of Murrieta does not have the existinc
rer- concentration currently in Newport Beach. However, they did adop
is 1,000 -foot radius. The 1,000 -foot measurement had to do with the
ngths of blocks. We believe it would be beneficial to the disabled to have
couple of blocks in- between each facility rather than 75 feet which woulc
ow you to have a facility, depending on how wide the lots were
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
snce and placed into the record that it would be beneficial to t
bled to have this dispersal requirement. There are existing saf(
:ems that legitimize this kind of standard, i.e., there have be
:rvations, 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.
reasonable accommodation is like getting a variance from an ordinan
is just by a different name. Any type of variance from an ordinal
ould go to the Planning Commission for consideration and should ha
lequate notice to the neighbors.
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e proposed a set standard that could be applied evenly so there was
iportunity for arbitrary decisions to be made. All the evidence exists ,
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 thi
articular areas.
airman Hawkins noted the confusion between facial discrimination
reason to go to the benefit or harm. What is the analysis a judge to
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?
Taber, yes.
an Hawkins: the reason that we then go to the two -prong is
the prima fascia case of discrimination, right?
Taber, yes.
:hard Terzian, partner in Bannan, Green, Frank and Terzian LLP,
insel for Sober Living by the Sea noted he had sent a letter dat
gust 22nd which repeated comments sent in previous letters. He stat
was available for any questions.
tan Hawkins stated he had reviewed Mr. Terzian's firm Website
i they represent public agencies. He then asked, as a counsel
agencies, if Mr. Terzian had an opportunity to defend any of th
es in connection with an ordinance like the one we are conside
Or. Terzian answered yes, it was in the U.S. District Court. It involved tht
=air Housing laws, both Federal and State. The defendant owned si:
klzheimer homes for the out -care of these patients, each with six or fewe
esidents. Following vigorous code enforcement by the City against tha
ndividual she went out of business. The owner sued the City claiming
here was discrimination against the handicapped. After a prolonged tria
and jury deliberation, the result was a verdict of 22 million against the Cit,
and found two members of the City Council and the Director of Publil
Norks had participated in the discriminatory action. The total exposun
ncluding a fee application of 19 million dollars was 41 million dollars.
:ollowing a series of post trial motions and negotiations, the 41 millioi
collar exposure was reduced to 20 million dollars that was paid by thi
imissioner Toerge, referring to the letter, asked about the statement
posed amortization of non - conforming use would also be a violation
citing the time frame of 5 years in the proposed ordinance not bei
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gh to fully recover from an investment." What investment, how car
characterize the investment, and is it the same for every facility?
J they be offset by the ability to rent it out, were you abated in othe
;? If you could sub - lease, wouldn't that offset that investment?
Terzian answered a long -term lease obligation plus whateve
fications had to be made to the house. He could not be anymore
ific. My client does not own any of these homes, they rent them. It':
ible, but I don't know how you sub -lease them.
imissioner Toerge referenced in the letter that "..no matter how much
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,
) 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
ple. He went on to discuss his work in Malibu that has 57 of the
fission continued on complaints in general; good or bad operators
impacts; and the use of code enforcement.
ert Rush, local resident, noted the issue of the case mentioned by t
ious speaker as well as one in Boca Raton are referenced to intimide
I 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
igenuous 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 o
1,000 people. Most of these facilities are on Balboa Peninsula, how mam
sople live on the Peninsula? I think that is the way to look at the
ambers. In terms of working with the community, we still need someone,
Meve, from Sober Living by the Sea to take a leadership position with the
her operators. That is something that is done frequently in healthcare
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 is
sanuts in terms of what it could do in terms of community good will.
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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 -terr
odging in R -1 and that is based upon my experience. There is an issue c
airness and if I am making an investment and houses on either side of m,
are 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
mall 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
iiscrimination. I don't understand it. I am a resident and live an R -1. If
Nant 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
ask facilities that have six people living in it to register that are operating
Business? I don't care what you call it, they make money or they wouldn
Jo it. Even if you say it is not a business, I have to register if I want to ren
Nhy don't they have to register for what they do? I don't see th
iiscrimination.
hence Sherwin, local resident, noted these facilities take care of o
y rich people and I don't know whether it is discriminatory or not. V1
't you demand accommodations for people who don't have money
I? These facilities are based on use by citizens of Newport Beach.
can't find out who is living there, and if they are not residents
vport Beach, why can't we find that out to make sure that these facilit
for the primary use of citizens of Newport Beach?
aurie Morris, local resident, noted Malibu has 27 miles to accommodate
roup homes. They have 18 of those group homes, we have over 100 or
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 ha:
een a taking in Cannery Village that has turned into an institutionalize(
matting as there are hundreds of bikes at all hours. If you go down there
Du are not welcome. That is also happening in Lido Village with all th(
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. Ther(
re empty spaces being taken over for meeting houses. Smoking is a
uge issue. The six and under unlicensed facilities being a family styl(
matting, with vans showing up at these settings, and taking each of thos(
asidents to Cannery Village or to wherever else they are being taken fo
ie dental, medication, mental health needs are services being provided.
hat should be considered an illegal use and should be addressed &
)avid Diamond, local resident and neighbor to one of the facilitie(
epresented by Mr. Terzian has had various problems with them. He
isually has been able to deal with the people on the premises to reach ar
affective solution. His home is surrounded on 39th and 40th Streets witt
hese group homes. Both 3960 and 3980 have gone through renovation:
ind have changed their windows and remodeled the kitchens, all without e
)ermit from the City. We have many operators of many homes in ou
Dcation. 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,
n that area from all the trash. The City has to address these problems.
There have been instances of a man exposing himself on the balcony a
3980. 1 talked to the operator who supposedly took care of the problem.
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.bout 1:30 in the morning two weeks ago, an individual was talking outsid(
n his cell phone. He was very animated and talking so loud that I couldn'
Jeep. I asked him to tone it down and he did not respond. I yelled at hin
) get inside and carry on the conversation. The next morning I talked t(
ne of the operators and he had the man come over and apologize to me.
did not call the police and so it doesn't show on any record. The nex
ight, the operator and this individual had a huge argument that I souk
ear coming through the window. Now, they are putting in double -pane(
Windows. If you would look at the questionnaires that were sent out an(
ie responses, you will see the problems that we have.
have such a concentration that these people know each other and y
c and forth, sometimes the language is horrible. This is not the nom
-aster of living in an R -1 home. I don't mind talking to the operators
and help them control the problem but the problem has be
;erbated by the over - concentration of the group homes with the alle
g blocked by vans stopping to pick up and discharge the residents.
s a tremendous staff to be able to provide food, supplies, medical a
sportation needs and other things for twelve people in a home. T
ity next door to me has 18 people in one residence. The concentrati
rtes problems.
Del Slutzky, local resident, encouraged the City to talk to the
isponders and have them do an analysis and it would probably be be
,000 feet. He supports an overlay zone.
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 t
immunity. We have an over - concentration of a type of use that evolv
a result of the City essentially removing all reasonable ordinances a
gulations that it had at one time and also permitting, without any revi(
constraint, these uses in the R -1.5 and R -2 zones. It has particu
pact because of our use characteristics, physical use characteristics, e
the coastal zone. There is concentration occurring now in the Santa A
;fights and West Newport and other homes popping up in Corona (
ar. Our lots are very narrow so whatever impacts exist, w
incentrations the impacts are that much more intense. For examp
coking; the houses are mostly 3 to 6 -feet away from one another, wall
ill. She then discussed the second -hand smoking issue. We feel this
health and safety concern and we feel we have the right to live in
coke -free environment. This area was not designed to have institutior
es, it was designed originally as a residential community with sor
lecial 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
unter productive.
aron Batley, read an email from Craig Batley of Burr White Realty
,as previously included in the staff report. The two group h
rdinances passed in 2004 failed to curb the proliferation of the g
omes. The proposed ordinance is flawed as it allows more, not
roup home businesses in the City. The short -term lodging industry
een operating on the Peninsula and Balboa Island since the C
iception, and the industry has been regulated since 1992. Short-
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ging customers are families with children, group homes customers ar
rds of the courts; short-term lodging is transparent in its operation:
up homes are secretive and proprietary; short-term lodging guess
itract with property owners, group homes do not contract with properi
ners; short-term lodging guests have occupancy limits and group home
not disclose this information; short-term lodging guests pay Transiei
cupancy Tax (TOT), group homes do not; short-term lodging guests ca
evicted at will, group home operators cannot be evicted; short-ten
party owners are subject to fines, group home operators are not; shor
n lodging guests are single housekeeping units, group homes are no
)rt-term guest lodging covers about 2 and 1/2 months worth of impat
ing the summer months, group homes impact all year round. For thes
sons, we ask that you bifurcate the short -term lodging from the grou
ne ordinance .
Mores Otting, local resident, noted her agreement with tl
commendations of Alene Taber. She then made reference to a she
filled Intervention that deals with drug and alcohol types of people. (
air web site, Sober Living by the Sea is listed and they talk about all the
: atments. Many of these people are coming to Sober Living here
:wport Beach. There are more sober living homes and drug homes
e City of Newport Beach than there are in any other City in California
the United States of America. We should be able to go to the State ai
:t some sort of dispensation. I would like to know how many home
ase other cases that have been referenced are dealing with because
nk this is not an over - concentration is ridiculous. The current ordinan
talking about one per block. That means we could have 50 units in of
ea, which could be for sober living, then we would need one per block f
a bulimia patients, etc. According to this ordinance it could I
proximately 450 homes you would be okaying. I need someone
:plain this to me as it is definitely making it worse. You need to wat
at show at least once to see what these neighbors are dealing with on
ilv basis.
Marshall noted that there is a misconception about when it said c
;h use per block. Because of the way it is written it is to apply to
iditional uses, the intent was different types of uses. Residential c;
lities, whether they are for bulimics are for alcohol /drug facilities, wo
one use. It certainly was not intended to be different types of facilil
ving different populations.
Brenner, local resident, noted that there was a group home two doc
for mentally ill adults next to her home. I bring this up becau:
centration is not the only issue here. With these homes so clo:
;ther, what goes on inside is heard by the neighbors. There was
;h screaming during the night. There were buses lined up and dov
street with engines running and radio communications blaring durii
day picking up the patients. We have noise regulations and I can c
police for noisy renter neighbors. If we start calling police every tin
noise from the group homes is impacting us, not only is that impact o
ity to respond to emergencies in the City, but it will create a problem f
property owners if a regulation is in place for them to be charged
e than two calls are made on their premises any given day or night.
what we have to do? We have to be able to regulate and control the:
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homes because the residential atmosphere in our neighborhood
>yed by this home. It is no longer there, fortunately, as it has s
sold to a family who now lives there. You can't just look at this
�ntrated area and think that is the problem and it is just these s
homes because it is a larger issue than that.
* Nichols, local resident noted the License 10505 says that professic
rnership can't own or rent a sober living home. Sober Living by the
certainly a professional ownership. Owning the lease and renting to
under that doesn't matter because they are a professional ownersl
d in owning more than one have to be licensed. I don't believe they
ve unlicensed homes. I think we need to enforce State laws and by
ing we then have some ability to trace where they are. It's ridiculous t
have to trace where they are. State laws says those homes have to
:nsed and we need to make that clear and it should be enforced.
comment was closed.
hairman Hawkins stated the issues of over - concentration, the argun
at sober living homes outside the scope of these regulations and that
ity is pre - empted, reasonable accommodation standards, the amortize
id then the process whether it is heard by Mr. Kiff, planning staff,
Duncil or Planning Commission, integral facilities, registration, short-ti
dging and overlay Issue
noted that the scope of the ordinance and applicability to the Sobe
ng by The Sea and other operators licensed and un- licensed facilities.
Terzian argued that the regulations are pre - empted by State Law an(
ybe even Federal Law. He asked staff to respond.
Marshall answered State Law protects licensed 6 or under.
posal does not affect those facilities except in the definition of inte
lity. We made the argument that because they are combined, 1
ly are not six or under and that is a legal theory that is not tested,
think is an excellent argument that is defensible. That is the one s
;re pre - emption could be alleged to apply. Elsewhere, everything
e written does not affect the licensed 6 or under.
an Hawkins asked about the residents' proposal in connection
and State and Federal Law on that issue and the discrimin
Is. Marshall answered the residents' proposal is much more targeted
my these uses that serve the disabled. It opens up the issue of fa(
iscrimination issue. I have not seen evidence on the record of benefit tl
would want to have there to defend those proposals. It may be tl
:cord could be supplemental, but it is not there now. The other ma
sue is the reasonable accommodation section, there are hundreds
3ses that articulate what standards a City could apply to a reasona
ccommodation request. All the additional things that were added, me
f them are probably expressly prohibited by case law. That part
3rticularly vulnerable.
Hawkins responded that Ms. Taber acknowledged that thei
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>sal was facially discriminatory so that puts the City on the defense
point. The primary benefit that she explained was the institutioi
rcter and how disbursing these disabled persons was a benefit
. Has that argument been tried before in other disability and F
;ing cases, and what has been the result?
Marshall answered Family style was a case on that. She agreed
argument was that institutionalization was the evil and barring
d 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
lations had been designed to keep out any. This situation is cl(
rent with the over - concentration.
nan Hawkins noted the operators and disabled have argued
of these plain benefits are a pretext, right? That in fact, they are
Marshall answered that is correct. They are just a way to keep
ties out.
;. Kautz added there are a number of cases where the courts looke
rticularly at separation requirements of 1,000 -feet or more, looked at th
rported benefits of that and almost always find that the evidence doesr
tify the benefits. This one from Children's Alliance versus the City
Ilevue in Washington, the Court said that they should be wary (
;tifications purported to help members of the protected class. The Cou
ould asses whether the benefits of the requirement clearly outweigh th
rdens. People have been presented some evidence that there may b
ckets that are clearly over - concentrated where there may be a
;titutional type environment, maybe something that is much mor
rrowly drawn might be defensible. A general 1,000 -foot separatio
auirement is the kind of language that the Courts tend to look at, it he
an very difficult for us to find the evidence. The only kind of authoritativ
urce we could find was a policy position by the American Plannin
sociation (APA) that talked about one home per block. Perhaps wit
)re research more evidence could be found, but that tends to be how th
Hurts look at this, particularly at a requirement of 1,000 feet.
hairman Hawkins asked, in terms of the narrow restriction, does
verlay zone accomplish the restriction that you are talking about that is
,000 -foot requirement for all the City is not carefully drawn, but an ove
one for pockets would accommodate it?
Ns. Kautz answered that staff has a map showing the location of at k
icensed facilities. There is a number of places included within the map
vas drawn that have no existing at least licensed facilities and even for
naps we've seen, no known unlicensed facilities. I don't think you cc
xevent future over - crowding. Where there is evidence of existing o'
;rowding such as on 39th Street, there might be.
missioner Toerge asked for an explanation of the moratorium
g issues. Also, with all of the materials we've just received, does
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i have to be settled tonight? I know the residents don't want to exter
moratorium but at the same time we want to consider this document.
not an attorney and not used to engaging in detailed language
uments. Perhaps the City Attorney's office will agree with the strike -o
;ion presented by the citizens group but I think we need more time.
;istant City Attorney Harp answered to have this considered by the Ci
incil and adopted within the moratorium at the September 11th meetir
i would have to make a recommendation by September 6th. There is
of material that has been submitted and we haven't reviewed eve
ail of the proposed language. If the Planning Commission feels it nee(
litional time, our office would recommend extending the moratorium
s an appropriate amount of time to consider it; given the amount
terial, that seems to be appropriate.
missioner Toerge agreed, stating this has to be done right.
Hawkins asked for a straw vote on the issue of timing.
ssioner Eaton answered there are substantial issues that need to
.d and there is not enough time to do them in one night. To g
ie enough time, this would have to be continued and therefore
on of the moratorium is needed.
iissioner Peotter noted he believes at least two meetings will
�d in order to review the materials and have a finished product
policy issues.
Cole agreed.
ssioner McDaniel agreed, adding he received information at the
today and that he needs time to review it.
nissioner Hillgren agreed, stating he wants to focus on the bi%
s and let staff and counsel take care of the wording. We will need
another meeting.
irman Hawkins noted it is unanimous that we will need more time to
correctly.
ommissioner Toerge noted the 75 -feet does not provide the kind o
eparation I think is warranted given the creation of institutional character
,hich I think is a detriment to the handicapped. I am not sure what the
istance should be but it needs to be objective. I support an overlay zone
r areas where physical characteristics contribute to the detriment to the
andicapped in these kinds of operation. An area, such as Newpor
leights where the homes are larger and further spaced out with bigge
ards, I can see how possibly an unlicensed facility would have a lesse
npact than one six feet away on a Peninsula location where the lots are
,000 square feet with 3 -foot setbacks. He suggested that straw votes be
iken on each issue.
Hawkins asked for a straw vote on the distancing issue.
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Commissioner Toerge noted 1,000 fee t
to create the kind of separation t o
handicapped that is my concern. 500
feet would do it.
may be beyond what is necessa
eliminate the detriment to tl
feet might do it; I am not sure 3(
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
missioner Eaton noted he prefers the 300 -feet as it is
mmissioner Cole clarified that the overlay zone is required before �
i create a greater dispersal of square footage. Is this correct, that y
ate the overlay zone in order to make a case for institutional ar
reby make a case for a greater dispersal amount. I would be in favor
t language whether it is 1,000 feet or something less than that. I wo(
ve it up to staff to come up with the most possible distance that can
tified. I am in favor of that concept.
imissioner McDaniel noted he agrees with Commissioner Cole,
the overlay issue because it gives opportunity. Testimony
ling indicates, that as well as some of these units are run, these p(
are handicapped, I am not sure how they fit into R -1 at all. It con(
when the setbacks are six feet and that no matter what the sF
are it becomes a big
>, 1 would support an
I feels we can do that.
issue. If we can get as big a
overlay. and within that, however
�ioner Hillgren asked if this applies to both licensed
facilitates?
space
staff
Harp answered that the State prohibits the regulation of 6 and
t are licensed. This would deal with 7 or more that are licensed
deal with 6 and under that are unlicensed.
mmissioner Hillgren noted that whether a home is occupied by sev(
h a license or six without, these facilities are still effectively a busine:
oration that we are dealing with in a residential neighborhood. At son
int, when we bring some amount of businesses into the neighborhood,
nverts from residential neighborhood to a commercial district. I think v
trying to protect a residential neighborhood. I look at it from that poi
view, and whether it is 30 -feet or 3,000 -feet, it is changing the intend(
Bence of the district. I would like to make it is broad as possible ar
Dlv it to all facilities.
McDaniel asked isn't licensed mean that they have
Harp noted there are five criteria for licensing.
Kautz added it is a low level of treatment such as counseling
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education, life planning plus what is called non - medical basically detox. lt�
is a very low level of treatment before a license is required.
missioner McDaniel asked would this be on site or off site?
Kautz answered it means the operator is offering it on site. But
permit these integral facilities, which is where the language cc
in the proposed ordinance, where you have treatment services.
house residents in one building and provide the services in ant
ing provided that the buildings are integral components of the Ic
ty and licensed as a single facility. That is where we have the v
Rion of integral facilities. These regulations only apply to drug
iol treatment facilities, they do not apply to any of the other lice
ties like residential care homes for the elderly.
mmissioner McDaniel asked if there is treatment on site in an R-
;idence, it appears to me that we have changed the concept of R-
;idential housing. I realize maybe the State sticks that in our eye, an,
can't do anything about it, but it certainly affects the zoning of our are
the simple fact that there is treatment there.
hairman Hawkins noted he supports the residents and has argued
Cher contexts that 1,000 -foot buffers are necessary between incompati
ses. However, I understand what has been argued by both Spey
ounsel and Mr. Terzian. If the overlay zone and the buffer requireme
Phatever it is, you have facial discrimination, that's it. The short -te
edging folks can just go home. Once we have facial discrimination
on't really need to apply it broadly, we apply it narrowly and then we v
nd we hope that our argument regarding institutional benefits that
nvironment is creating an institution which does not benefit the reside
nd they would be benefited by a further dispersion. I think that is a n
rgument but I would not want to be making this argument on behalf of
ity because I think it is a loser; it is a pretext. I support the resides
esire to get some control over this problem but I don't think the distant
nd the overlay zone is the way to do it.
:)mmissioner Cole noted the way the language is written in the ordir
is only required as the use permit process, the over - concentration
when a use permit is required. Is that the only time when the dis
)mes into play?
Marshall asked which proposal are you talking about?
Cole answered for both.
Marshall answered that the first proposal does not permit
ensed 6 or fewer in R -1 at all. It does not permit the 7 or n
there except multi - family residential so it is an absolute prohibition
would never get to a use permit there. The one per block is
lard with the 75 feet to deal with the edges of the block.
Commissioner Cole noted with the straw pole we just went through, which
has general support for the concept of an overlay zone, which by the wax
ou felt there might be some merit if it was narrow enough where we could
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ve over - concentration. My question, it is only under a use permit
dispersal requirement would come into play, is that correct?
Marshall answered yes.
In Harp asked for discussion on the issues of distancing and the ov
istrict, as you are focusing in on that as far as the residents' prol
;garding the overlay district, or something a little narrower, could
>uch on that?
iissioner Cole answered it appeared there were some comments
where you felt a more refined overlay district where we could p
ntration might have more merit to the idea and would be r
Marshall answered if you are going to do it, make it a narrowly
;. You need to get some evidence in the record about the 1,1
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 t
lay zone only relates to rehab facilities. I am not prepared to go ti
When I was spoke of support for 300 -foot distance, I was assumi
question was still open and could apply to staffs proposal about
conforming uses, not just the facially discriminatory threshold of
lay zone and only rehab houses. These two are very different.
irman Hawkins asked about a new straw vote.
issioner Eaton asked do you really want to start from the facial
iinatory point? I have a reluctance and I do not want to do that,
rehab homes, and therefore virtually admit that we are being facial
iinatory. The overlay concept goes with that, and therefore, I have
-n about the overlay zone as well.
mmissioner Peotter asked staff about an overlay zone and how it
implemented.
Lepo noted that an overlay zone is not something that is common. Y
re a scheme of zoning or development regulations that apply through(
area but within that area is a subset you find there is some problem
cation that you need to address. By applying an overlay that leaves
ce existing development regulations but for some subset of that over
a, apply some additional level of regulations. That is the overl
icept in general.
hat I wanted to bring to your attention was the map that we had pulled
fore showing known license facilities. Staff has discussed if we define
West Newport and the peninsula as an impacted area and we were t(
it looking at this map, where the overlay would apply and defining
rrow overlay area it would be just the immediate vicinity around 3(.
reet, but it is a very small area. Ideally, 1 would like to say that all
est Newport and the peninsula is impacted.
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irman Hawkins referenced the attachments to the residents
provided a basis for a different overlay.
Lepo answered that the impacted areas included Corona del Mar
oa Island, Peninsula and West Newport.
Kiff stated if this is a question of a correct map, if it is just kni
;d facilities, it's close to accurate, but if it indeed has unlicen
living, there is not nearly enough; I can't confirm.
. Lepo answered for purposes for example, what you were saying
'rowly define an overlay area. So essentially, on this map each clu
uld be one narrowly defined overlay area so we would have maybe
the peninsula, rather than the whole peninsula.
. Marshall added that Ms. Taber said correctly, to apply citywide was
ad because the whole basis for applying the overlay
titutionalization. You are only going to apply these special stands
are there is institutionalization because that benefits the disabled.
p was too broad.
missioner Eaton asked if it was fair to show a map of licensed faci
i we are talking about an overlay zone that would govern
itional use permit process for unlicensed facilities.
:hairman Hawkins answered that may be, but let's focus back on ou
iscussion because you raised the issue of whether we wanted t(
pproach this in a facially discriminatory manner and your position was no.
did not hear Commissioner Peotter's perspective.
imissioner Peotter stated if you were to do something like go
vide with an overlay zone, could you do something along the lines
e uses we consider institutionalizing of residential neighborhoods; if
going to have these kinds of uses whether they be large dayca
sr living or whatever, we want to have them in areas where we he
)ot setbacks instead of 3 -foot setbacks. Would that be a facia
riminatory overlay?
i Hawkins answered if it is targeted to only the residential
yes it would.
Harp added that if you apply it broadly enough or apply it to all tt
s, then it does not become facially discriminatory. It is when you
Iling 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 uses basical
residential homes figuring those were the ones that might affe
dential character of the neighborhood.
3sioner Peotter noted setbacks being at minimum lot sizes could
that negatively impact these neighborhoods based on this o%
tration of uses. If there was some way to do an overlay zone 1
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Ad not be facially discriminatory but try to use standards where it
less impactful to the neighborhood, I would be in favor of the c
ian Hawkins affirmed you do not want to institute anything
be facially discriminatory either.
:ommissioner Cole answered that he would be in favor of looking into ar
verlay zone as the City has made a statement to the State Department o
ustice that there exists an over - concentration of residential care facilities.
his is the most concentrated area as far as residential care facilities and i
ie can't make a case here, then no one is going to make a case and
elieve we should take advantage of the unique situation the City has o
ie concentration and allow ourselves at least the ability to create
ispersal requirement that will be greater than 75 -feet.
�hairman Hawkins noted his concern about that approach is the ill you ar
rrgeting the benefit to the disabled but rather dispersing the uses so tha
ou don't have a problem in those areas. From my perspective that is
icially discriminatory thing. The only basis for that is a benefit to th
isabled, or a specific or targeted threat. I don't see that we have any c
lose. The problem I see with facially discriminatory legislation is that put
ie City on the defense immediately. If we can say, no, we are applyin
its to everybody and this is how it lays out, would be the better approach.
imissioner Cole stated I've heard we can make a case. I think there
igh evidence and we can create enough defined zones. If there to
100 residential facilities then we can make a case that it has be
:utionalized area and it would be a benefit to the disabled in tho
s by creating this zone.
McDaniel agreed. He supports an overlay zone.
nmissioner Toerge agreed with the overlay zone. There are ce
racteristics within those areas that contribute to this detriment to
dicapped. If we can foresee those qualities are in c
]hborhoods, where maybe there currently is not a detriment but tl
Id be, maybe we can apply it, otherwise all we are going to do is rr
problem.
:ommissioner Hillgren noted being facially discriminatory troubles him.
'he issue however, is one we can wrestle with in other areas and this
oncentration issue is one that is so grand, talk about detriment. Whethe
is someone who is disabled or not, if you are living in a residential area
iat now becomes commercial, that is a detriment. That is the approact
nd whether it requires an overlay zone or has a broader sense, I woulc
ke to start from a position that we are not defending ourselves but where
re are practically saying we worked to solve this.
Hawkins asked if the proposal by staff and counsel does that?
Hillgren answered it's getting there.
Kautz added that you can have an overlay that would have particu
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•ements for all conditional uses in that area because of
cteristics of the lot size, for instance. You could have an ov
that is not facially discriminatory.
iairman Hawkins noted there would be a separation in these small
;as; that has to apply to all residential uses, that basically is what
tback is. If you then apply a distancing for the disabled or resident
re facilities that is larger than the single family, aren't you facia
Kautz answered that within your overlay zone, you could not
ictions that would only apply to the disabled. It would have to be
;ral restrictions to preserve the residential character of
hborhood and they would apply to schools, churches, inns, ME
,es, clubs, lodges, etc.
missioner McDaniel noted there are at least 5 who like it so can
s on?
Lepo stated that staff has understood from legal counsel that we
define the peninsula and all of West Newport as an overlay area
these conditions for purposes of applying these sepan
uirements. They are talking about a matter of blocks. There are
as of beach with a very narrow strip of land that has one arterial in
, small lots with setbacks, commercial uses, and 40 % of p
ources. We were still told we could not do this. Each one of those
the map would be an overlay area.
Kautz added that if you are going to have a facially discriminato
inance where you are going to try making a case where there is <
itutional character to the area, then you have very small zones and or
up home is not a zone. You have a cluster of what is described arour
h Street. Maybe where it becomes a majority of the uses in the are
t is if you are facially discriminatory. If there are conditions that yc
h to apply broadly to conditional uses, then you could define small are
t has similar physical characteristics, like small lots, etc. Tho:
ulations would not be applied only to residential care facilities. The Ci
Ad have to be very careful how it administers this so that you can tell
ool or church no, whatever.
r. Lepo asked in that example we're not facially discriminatory, we
rtentially 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
Ocal characteristic so you need to develop your record.
Harp noted this map is not accurate.
nissioner Toerge added Balboa Island and Corona del Mar for the
same physical characteristics that we are talking about, small lots
w alleys, etc. It is our job to make recommendations based upon the
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rmation that we have received from staff, residents and specia
nsel. All we are going to do is recommend to City Council. Being tok
it we can and can't do has come and gone. We are in a place when
have to make a recommendation based upon what we have learned.
is not an exact science speculating what a judge might do. The Cit,
incil will have to make the tough call on our recommendation. As a
fining Commissioner I want to recommend good planning and that is the
is I am making my recommendations tonight.
�sioner Cole noted there is a majority for an overlay zone.
zone should encompass the entire peninsula, Corona del Mar
as it relates to small lots.
missioner Toerge answered based upon the map the residen
uced, I agree with that. It does include West Newport, Lido Islam
oa Island, Corona del Mar and there is one area I question is the are
nd Hoag. There is a lot of MFR in that area and I think the MFR is tt
a appropriate location for this type of use. I would like to make th
der to include those other areas with these same characteristics.
>mmissioner Cole agreed adding the language should be more nam:
ilored in order to make a case so those areas where we are making
se have the over - concentration. In my opinion if we open up th
oad areas we are just going to be shot down. I would like to have
ke a look where there is over - concentration. That is where the prok
and that is what we should be focusing on to try to get dispersal.
Hawkins noted you are talking about actual areas of
on, not projected areas of over - concentration.
nissioner Cole answered yes. Those cases we can make that
over - concentration; narrowly tailor it to those areas.
iairman Hawkins asked if staff had direction. The Commission is in favo
an overlay zone which may or may not target specifically the residentia
re facilities. I think the preference of the majority would be to have it no
facially discriminatory.
then brought up the next issue of reasonable accommodations
ked for input.
Harp stated we heard two different proposals, one was focusing
all lot areas and the other was on the actual impact. It would be g
us to have direction on which way the majority would feel about that.
�hairman Hawkins answered we talked about the overlay zone as
rawn as possible and an attempt to make it facially neutral.
>mmission Cole stated there are two different concepts. My sugges
to go with narrowly defined, where there is actual over - concentration.
missioner Eaton added he would be in favor of an overlay that
d upon the restrictions of the lots and that applies to all condit
so that it was not facially discriminatory.
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r Peotter added that was the intent. We deal with the
on the setback issue.
imissioner McDaniel noted he understood counsel to say that would
best way to deal with, to have it by lot size. I am in favor of m
aral based on lot size and not facially discriminatory.
Hawkins noted there is unanimity on this for small lot
imissioner Cole asked if we want to give direction on the footage,
part of the same dispersal issue?
Hawkins noted we can go onto the dispersal requirement.
Eaton favors 300 -feet for all conditional uses.
missioner Peotter favors shooting for 1,000 -feet and settling for
only for the residential care facilities. Using what staff
amended by 1000 -feet instead of 75 -feet.
Marshall stated staff is not recommending facially discriminatory
r to apply to all conditional uses.
mer Cole favors 1,000 -feet or as close as we can get to it for
care facilities in an overlay zone.
McDaniel favors 300 -feet for all conditional uses.
imissioner Toerge favors all conditional uses a minimum of
would support 1,000 -feet.
:ommissioner Hillgren asked the length of the peninsula. He was told
/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
t 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
could be for all uses.
airman Hawkins noted he did not support the overlay zone as h
irds it as facially discriminatory, but if it affects all conditional uses,
k maybe we have a shot. I do not believe the benefit to the residents
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 tt
Peotter answered the overlay has to apply to all
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e permits. I was recommending the over - concentration be applied
care facilities. That is not the consensus of the Commission.
Harp stated the overall position is 300 -feet at least to all uses, 1,000
think its defensible. It was agreed.
Hawkins brought up the issue of reasonable accommodations.
mmissioner Toerge supported review by the Planning Commission
by the Zoning Administrator given the contentious and the expai
xtunity 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.
missioner Cole noted his agreement.
Peotter noted his agreement.
Eaton noted his agreement.
an Hawkins noted there will be a lot more incidental requests
an administrative procedure as well as Planning Commi:
then brought up the amortization issue.
oner Toerge asked staff about choices on this issue.
that we should abate all illegal uses, that's a no brainer.
;hairman Hawkins noted it is a timeframe issue. The illegal uses a
liminated immediately, other uses that do not conform there is a short
me frame under the residents timeframe.
Kautz noted Chapter 20.62 is only non - conforming uses and is r
at uses. There is no such thing as an illegal non - conforming use, it
an illegal use.
Hawkins noted, so illegal uses can be enforced by our
Kautz answered right, there is a separate enforcement section that
has.
mmissioner Eaton noted language about the City may prosecute.
the changes the citizens have made, and I agree with, is that the
Il prosecute. I think that needs to be made mandatory.
;hairman Hawkins: straw vote in connection with mandatory prosecution
legal uses.
Peotter, not in favor of mandatory. I believe it should be
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iscretion of the City Attorney and Council.
Cole stated he was not willing to go that far.
McDaniel asked what prosecute means.
Harp answered the Municipal Code provides remedies to deal w
ition of the Municipal Code and one of those is administrative citatioi
final prosecution, civil action to get an injunction to basically enjoin
al use. If a use is currently illegal than it would be subject to sor
i of prosecution. However, it is important to note that by adoption
ordinance there will be a creation of a lot of non - conforming uses,
3nce, you will now be requiring a use permit for all six and under ti
not licensed. That is an important distinction to make.
Hawkins noted they would not be illegal uses.
Harp answered they would be non - conforming.
missioner McDaniel noted he is not in favor of prosecuting but he
to make sure that they do what they are supposed to.
: cution part is too harsh.
missioner Eaton stated he used that word and it may have been
He noted the current proposal reads the Planning Director rr
a written order of abatement and the residents' proposal is I
ninq Director shall issue a written order of abatement.
McDaniel noted he is in favor of that.
Peotter noted the Planning Director ought to abate it.
r. Harp 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
,qer 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
:)u 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
other places that talk about illegal uses and says the City may prn
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abate, whereas, the residents' change is the City will proceed to
at is significant.
missioner Toerge favored using "shalt' instead of "may ".
Hawkins noted that was a majority.
Hawkins brought up the integral facilities issue.
iairman Hawkins noted his concern that the tables reference integr
dlities by a population greater than 7. Integral facilities in the definitic
is no number in connection with the numbers of residential care faciliti
nail licensed or unlicensed, General. All you need to have is two th
notion together and they are an Integral Facility, which takes them in
e general category. It seems to me you could have two that function
tegral Facility for which there is only four people total. I am not sure y(
ant to capture those folks. I think you want a numerical, in other words,
:ople for Integral Facilities.
nmissioner Hillgren stated that just because they are separated by ar
ress doesn't mean they are not integral. If you have two facilities the
up to more than seven within whatever our defined radius is, that t<
is an integral facility. I think it ties to whatever our radius agreement is
:rever that comes out. When it adds up to seven, looking at ou
nitions that becomes integral, and that is where I think we ought to N
our program.
iairman Hawkins noted the current proposal is broader than that. TI
not a segmenting or distancing requirement so that you fall out. If tl
a two facilities within 2,000 feet of each other, under the current prop
d they are functioning as one, then they get kicked into an inte
-ility. I think you get more regulation that way, then say if the
-ilities are separated by 300 -feet then they are integral but if they
thin that 300 -foot radius or other radius, they are integral. I think
>uld lose your regulatory punch with including a radius.
imissioner Hillgren noted he supports regulation, but we need tc
final and defensible in this. Part of our responsibilities is protecting
cents and part of it is protecting valid good businesses within
munity. I think it becomes integral when it is within the radius, e
get beyond that it becomes a question, in my mind.
airman Hawkins answered
,ds, you have two facilities
m is going to be barred. I'm
r are talking about.
the radius is going to prohibit. In
)f the same type within the radius, o
not sure that radius doesn't do exactly
missioner Peotter suggested leaving it vague so that if two fac
operating as one within the City limits, they are considered
lated as though they were a single unit. In addition to that
wage that any two that are owned by the same owner within 300
they are automatically considered to be operating as one unit.
Hawkins noted if there is a distancing requirement, it
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and one of those facilities will become illegal and they can't do it.
sioner Toerge asked for a vote and suggested anywhere in
zone, seven or more is integral. A radius in this concept
airman Hawkins explained that if you have two within the radius,
:sn't matter if they are by the same owner or not, if you are establishi
ius and you got two, then one of them is out of there. That's my point.
loner Hillgren noted it is integral when you have a
owner.
Hawkins answered that is the current regulation, which
in the City, which I think you get more regulation.
mmissioner Hillgren noted he does not disagree and will leave it up
uncil.
immissioner Cole noted the definition in the proposed ordinance de
egral facilities already. There was some suggested language
irifies it more. Are you asking for a different concept? My understar
the concept is that integral facilities has a definition already in place.
airman Hawkins answered that neither of them have a numerical limit.
k you need one. Commissioner Hillgren's concern is that we need
e some scope over which we are going to consider facilities
stituting an integral unit. We can say an owner can operate five with
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.
McDaniel asked to hear from counsel.
r. Harp noted that the issue is that we basically didn't put a number in fo
e 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
overseven.
rman Hawkins noted it makes it consistent with the tables.
Os. Marshall added that in the preliminary definitions that are basic
werything. It describes how they are operated together. Then you get
he residential care facilities definitions and the general is 7 or mo
ncluding integral facilities. That is where the 7 shows up and those, if thi
ire operated integral and they get over 7 then they are prohibit(
werywhere except the multi - family zone. It includes licensed 6 or under,
hey are combined with a licensed 7 or more it's going to be an integi
acility and will have to go to the multi - family zone. You have to look he
hey are operating together because that is what creates the commerc
mpact in the residential zone. You can't just look at who owns them,
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are operated completely separately with one owner, that is not
iercial 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 t
nit. If it is under the same owner it is integral but also has be operal
ither. If it is truly separate and is just owned by Mr. Smith, then th
treated as separate.
irman Hawkins noted he was under the impression that an int(
ity was only regulated if it were over 7. Ms. Marshall is clarifying
sr 7 can be regulated. That is fine if that is the impact.
Marshall added it is regulated anyway whether it is integral or not.
oner Peotter noted he thought licensed facilities under 6 are
by us.
Marshall answered that is correct. The leap is that if they are license
it 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 yc
require a use permit and it can't be in an R -1. We can look at tt
uaqe of 7 or more.
ssioner Eaton noted the residents maintain integral should not
to residential only and that integral facilities should include th(
that have treatments in commercial zones. The special tour
ns that doesn't have a residential impact.
s. Marshall noted the whole theory of all of this regulation is we
gulating impacts on residential neighborhoods. If services are prov
the residential neighborhood that is what creates the impact that me
quasi - commercial, it's a business. If the services are provided in
mmercial district that doesn't impact the residential neighborhood
ferently than five senior citizens who live on one block all going to
me doctor in a commercial district. That is the theory that if you
�atment outside the residential district you remove the rational for
lulation in the first place.
:)mmissioner McDaniel noted tonight's testimony is that within the
sidential areas they pick up and transport them to other areas, so there
connect between those that impact the residential area by the nature
e fact that they are two facilities that operate as one. So they a
innected by transportation and that seems to be a big issue that impac
e residential area. Seems like they are connected as one unit in and c
the area.
Marshall answered that you regulate that through the use
;ss by imposing conditions about pick ups, etc. You don't say
le can't go into the commercial districts for service.
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mmissioner Peotter noted as he understands it you have two lcens,
der 6 homes and the bus goes and picks up clients from one house ai
:n goes to the other house to pick up the clients in order to transpi
�m to counseling treatment in the commercial district, we don't have
a permit process for the under 6 licensed, and they would not qualify
ing operated as one unit because they are not providing services in th,
me combined such as counseling, eating, etc., that is what we are tryii
regulate because you have these buses and vans that come into t
ighborhoods. I think that is what we are trying to get at, how we defii
w these guys operate as integral units, they could provide a thl
;ation and still operate as one unit.
Marshall noted we are taking a big step saying that something that
acted by State Law as a 6 or under, we are going to see you
ething other than a 6 or under. I think you are pushing it too far if y,
the services are not provided there they are provided in a commerc
i. It is just a question of risk. Think of other disabilities, people w
in single family home, those are the people who are picked up
s. That is why there is pick ups here because we have people w
bilities. Those parallels will be drawn.
an Hawkins stated it was suggested that if we extend it to tl
rcial districts or zones that we lose the protections because we a
about impacts to residential zones, that is your argument. So v
ng to regulate these state licensed facilities because they a
Ong as a unit and impacting the residential zone.
Marshall answered yes.
Kautz added that the other theory is that there is language regardinc
alcohol and drug treatment facilities that talk about integral facilities.
h this definition, the City is essentially saying you are supposed to N
nsed as an integral facility for all your facilities. You really have twely(
ople, eighteen or whatever, not just six. A lot of this is either from thf
ulations or from the statute. As soon as we throw in the commercial ou
ument gets much weaker.
oner Cole favored keeping the language the way staff
(residential only).
Hillgren agreed.
Toerge favored including the commercial.
McDaniel noted he agrees with residential only.
Peotter favors residential only.
Eaton favors commercial.
Hawkins brought up the issue of non - conforming.
;loner Eaton noted the process and abatement time different
the ordinance proposed by staff and by residents. Staff involves
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:ss where the non - conformities are identified and brought to 1
nission and the Commission ratifies those identifications. At ti
they will have two years to process. The residents proposal was
with a one year abatement and not involving a listing brought to 1
Marshall answered the reason for the difference is because there is
ie period to apply for a conditional use and making sure everybody K
tice, that applies to them and the time is starting to run. If it just rui
m the date of the ordinance, don't forget it covers all non- conformh
es. You have somebody who needs to apply for a conditional use al
.y don't realize it applies to them because they think it only applies
)up homes because that is what is in the newspaper. The idea was
re notice and give the people an opportunity to be heard. It is more we
d time and expense for the City but we were trying to balance the righ
the property owners not to be abated without knowing they were subje
it.
iairman Hawkins noted one of the rationale for creating the overlay
this over - concentration. So can't we make that finding?
Marshall answered you were going the other way having the
e based on lot size to be broader.
3. Kautz added that it is giving people notice that they are n,
nforming and giving them the opportunity to argue about that. l
rden of proof is on them to prove they were legal before. This is seri(
e process and taking issues for the City and when you amortize the t
when people make the taking arguments. People can also argue t
=y need more than two years through reasonable accommodation or
onomic argument.
Eaton noted two years at a minimum is necessary.
missioner Peotter favors staff recommendation.
Cole favors staff recommendation.
missioner McDaniel favors staff recommendation.
missioner Toerge favors staff recommendation.
missioner Hillgren favors staff recommendation.
s. Marshall stated that the over - concentration issue is applied on a ge
rward basis. In the citizen's proposal it is applied to existing uses.
aff's proposal they come in to apply for a use permit with all
rnditions except one per block. The reason it is that way is the idea t
)u would have to choose between existing ones, which one is going to
)ated if you are violating the spacing requirement. It seemed way
uch potential for a taking issue and a discrimination issue. The citize
oposal says you will apply that but it doesn't say how. You should 1
)out that.
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irman Hawkins stated if the distancing requirement is greater than
as staff has suggested, then that taking issue expands, right?
Marshall answered yes.
issioner Toerge suggested he would like more information on
such as how to choose, etc. otherwise we could be cre;
nent and people are not going to move. I don't want to e
ling we just can't do so we need more input from staff.
ssioner McDaniel said he would like more input as well before
a recommendation.
missioner Cole agreed.
Peotter agreed.
Eaton agreed they need more information.
nmissioner Hillgren noted if these group homes were good nei5
wouldn't be trying to regulate with land use issues. Is there any
to regulate or manage what is going on?
Harp answered there are other ways to regulate some of the impacts.
instance you could increase regulations on outdoor smoking, other,
you can apply city -wide.
lirman Hawkins suggested that staff look at other ways of regulating.
asked if there were other issues.
ier Peotter noted the residents brought up the issue
of licensed and unlicensed units.
Marshall said the latest residents' proposal does not ind
listration of small licensed. Their proposal is to register everything
it is not protected by State Law. It is the same facially discrimina
ue that it only applies to this particular use and added we can get sr
this information in another way and it was pointed out that through
siness permits we can get it.
Harp added that a lot of the same information would be obtained
:ing the business licenses which would apply to each facility. While it
a registration requirement, that same information is logged in th
finer. Almost all of these uses are going to need use permits except 1
ones that are licensed by the State.
iissioner Peotter asked how the City uses code enforcement to fi
small unlicensed facilities?
Harp answered that typically code enforcement is a complaint driN
em. If we receive a complaint that a property may be suspected
.r being a boarding house or some other current illegal use
stigation is formed to determine what the use of that property is
an analysis is done on whether they are violating the code and if
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is taken through one of the remedies.
Peotter asked how many of the homes should be licensed.
Marshall noted that is one of the biggest areas of abuse, homes
dd be licensed aren't. They are doing detox and they should
sed. That is a different procedure; they would be reported to the S
the State would enforce and they do.
Hawkins noted if we pass this ordinance, they could also
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 int
iential uses and nuisances is not merely complaint driven though
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
problem. An additional requirement for registration is not necessary.
Eaton, Cole, McDaniel, Toerge and Hillgren agreed.
;loner Eaton noted the residents group had suggested addit
that could be made for both reasonable accommodations
al use permits. He suggested staff look at those issues.
I. 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.
aff can get statistical information on how much area in the City is
ailable for R1.5 and R -2 and MFR.
) mmissioner Eaton noted if we can't allow the 6 or less to even apply
R -1.5 and R -2, then we are being overly restrictive. We have discreti
those conditions at the hearing and we need to continue to allow the
at least apply in the R1 -5 and R -2.
Peotter favors further restriction in R -1.5 and R -2.
Cole favors no further prohibiting.
McDaniel favors no further prohibiting.
Toerge favors prohibiting them in R -1.5 and R -2.
ioner Hillgren favors no further prohibiting.
otion was made by Commissioner Toerge and seconded
:)mmissioner Peotter to continue this item to September 6th and
aff come back with an outline of the items discussed and results of :
rtes. To the degree there are other issues, they prepare a suc
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comparison of choices.
Following a discussion regarding the holiday it was decided to continue this
item to September 20th, Special Counsel agreed they would be available
that date. The maker of the motion agreed to the date change.
Ayes:
Eaton, Peotter, Cole, Hawkins, McDaniel, Toerge and Hillgren
Noes:
None
Recused:
None
DDITIONAL BUSINESS:
ADDITIONAL
BUSINESS
a. City Council Follow -up - Mr. Lepo noted the appeal that was filed fo
333 Bayside was withdrawn; Council directed the applicant of th
AERIE project to re- design the project and use the 50.7 feet abov
mean sea level originally proposed by staff as the predominant [in(
of development on the bluff face. Discussion continued on th
Council deliberation of this item. The Newport Beach Brewin
Company resolution is to be re- worked and brought back fo
signature.
b. Report from Planning Commission's representative to the Economic
Development Committee - Chairman Hawkins noted EDC was da
this month.
C. Report from the Planning Commission's representative to the
General Plan /Local Coastal Program Implementation Committee
Commissioner Eaton noted there was a discussion of more use
allowed by right with standards and there was a discussion on non-
conforming uses and structures.
d. Matters which a Planning Commissioner would like Staff to report or
at a subsequent meeting - none.
e. Matters which a Planning Commissioner may wish to place on
future agenda for action and staff report - none.
f. Project status - none.
g. Requests for excused absences - none.
ADJOURNMENT: 11:00 p.m.
DJOURNMEN
BRADLEY HILLGREN, SECRETARY
CITY OF NEWPORT BEACH PLANNING COMMISSION
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