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Home My WebLink AboutResidential Uses_CA2007-005 (PA2007-112)CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT August 23, 2007 Meeting Agenda Item 2 SUBJECT: Residential Uses Code Amendment (PA 2007 -112) ■ Code Amendment No. 2007 -005. APPLICANT: City of Newport Beach CONTACT: Patrick J. Alford, Senior Planner (949) 644 -3535, palfordacity.newport- beach.ca.us PROJECT SUMMARY The code amendment is to Title 20 (Zoning Code) of the Newport Beach Municipal Code. The code amendment would revise definitions, land use classifications, and regulations relating to group occupancies and relating to use permits and amortization provisions for all uses in residential zones. Adopt the attached resolution recommending approval of Code Amendment No. 2007- 005 to the City Council. INTRODUCTION History and Overview: Newport Beach's early development occurred on the Balboa Peninsula, West Newport, and Balboa Island along the City's many miles of beach and harbor frontage. Residential development consisted mainly of weekend and summer beach houses and duplexes used as second or vacation homes to escape the heat of Los Angeles, Pasadena, and other inland areas. A large number of these beach properties were developed in a dense pattern. Most properties are narrow, not more than 30' in width and often 80' to 100' long. Much of the area authorizes duplexes built on a single lot with each building setback only three feet from the property line, resulting in neighbors with windows less than six feet away from each other. Balboa Boulevard is the only arterial roadway, stretching from the Pacific Coast Highway to the tip of the Peninsula. Other roads in the area are only 30 feet wide, with alleys as narrow as 10 feet across. This creates a living pattern that requires a certain amount of mutual consideration under the best of circumstances. 1526 \02\472567.2 Residential Uses Code Amendment August 23, 2007 Page 2 Many owners retain their properties as income - producing investments. Some properties are rented monthly, others annually and many on a short-term basis for less than 30 days during the summer months. Summer rental properties are generally rented for monthly and longer terms during the less busy winter months. The year - round as well as nine -month rentals provide affordable rentals for college -age students and young families. Over the years, however, more and more property owners have purchased these properties and moved in to make Newport Beach their permanent home. Often a duplex will be torn down and one single - family home built in its place, or a duplex will be used as a permanent home with the secondary unit used as a rental to help support those that wish to live in Newport Beach. The City Council has periodically responded to the differing interests of permanent residents and renters, many of whom who lived in the community for the proximity to the beach and relaxed atmosphere of a beach town. In 1992, the City Council adopted Ordinance No. 92 -13 to respond to the ever - increasing complaints of permanent residents about the impacts of the vacation or short-term rentals. Many of these properties were rented out to groups of young people, students, or other visitors that were coming to the area on vacation without intent to make the Peninsula area their permanent homes. Often these renters created many adverse impacts on the surrounding residential neighborhoods. The short-term lodging permitting requirement was enacted to create responsibility on the part of landlords and property owners for the conduct of their renters, and to impose transient occupancy tax on those properties that were rented for less than 30 days. In the 1990's, the City Council also adopted changes to the City Condominium Conversion Ordinance to encourage more home ownership and permanent residents who would have more interest in maintaining the residential character of their neighborhood. Illegal units have historically been a problem in Newport Beach, and have been created most often in the older beach - oriented areas of West Newport, Balboa Peninsula, Balboa Island and Corona del Mar. The City has always enforced its zoning code to prevent illegal or bootleg dwelling units. Illegal units are found in two typical forms. First, the splitting of a single dwelling unit into two separate occupancies and second, the conversion of garages to a living space. These units usually have a higher number of building & safety code violations than legal units due to the conversion without proper building permits and inspections. Illegal units add intensification to an area already impacted by high- density dwelling units and the approximately eight to nine million visitors, vacationers and beachgoers that come to the City annually. When landlords, began renting out individual rooms or portions of a structure to create illegal boarding houses or dwelling units in two- family duplexes, the City made changes to its zoning code to prevent these types of uses within the City. The City adopted detailed definitions of "family" and "dwelling units" to aide in enforcement against illegal dwelling units and to prevent creation of boarding houses, fraternities and other types of Residential Uses Code Amendment August 23, 2007 Page 3 transient residential patterns of use. The City sought to promote a balance between residential community needs and accommodation of vacationers without adverse impacts on the peace, safety and welfare of the long -term residents through these changes to the municipal code. In the late 1990's, a new form of transient residential use began to operate in these already intense neighborhoods. Drug and alcohol recovery and sober living businesses armed with various fair housing laws protecting the residents of those homes have established the equivalent of transient boarding house businesses to provide recovery and sober living setting in residential areas. This has resulted in transforming a small area of the City into an intense institutional boarding house setting, a result the City had long sought to prevent. Numerous blocks of the City are now filled with multiple businesses offering recovery and sober living services to 12 or more persons in the neighborhoods duplexes and triplexes. The residents often move from one building to another depending upon the services offered over different periods of 28 to 45 days. Residents, up in arms over the institutional operations, began to complain that the City's regulations did not adequately address the impacts of these businesses. Questionnaires distributed to residents in areas with a high concentration of recovery and sober living homes received responses that indicated that most or all of the 12 residents in a duplex used for residential recovery or sober living would gather outside and smoke frequently. This generated large amounts of secondhand cigarette smoke which blows into open neighboring windows as little as three feet away. In these situations, neighbors have been forced to either keep their windows closed or breathe the secondhand smoke themselves. Some properties are used for assembly purposes and bring in residents from other homes for meetings and services. Some operate at an intensity that requires commercial trash pick up on a more than weekly basis. The high turnover of residents in these facilities creates a problem for neighborhood residents who are continually forced to remind management to enforce rules for behavior when new residents arrive, since facility residents often do not concern themselves with the impact that swearing, smoking, fighting and similar behaviors have on their neighbors. In short-term rental situations, the transient occupancy is by single families or groups of families or individuals living together in the rental as a single housekeeping unit during the rental period. However, nuisance behaviors and neighborhood impacts are also common in many short-term rentals. The same questionnaires identified some continuing problems with short-term rentals.. The proposed ordinances also clarify and address the requirements for short-term rentals within the zoning code, and the City intends to update the regulations contained in the permitting scheme contained in Title 5 of the City's municipal code. In 2006 the City Council adopted, and citizens widely supported, a new General Plan that identified Newport Beach as primarily a residential community. The General Plan envisions a range of housing opportunities that allows people to live and work in the City and emphasizes residents' quality of life. The residents of many parts of the City have Residential Uses Code Amendment August 23, 2007 Page 4 insisted, and evidence suggests, that the City's current regulations regarding group residential recovery facilities have been circumvented to create more intense use of property in the name of recovery or sober living residential uses. Since 2006 the number of residential recovery facilities has grown from 10 licensed to 22 licensed residential facilities occupying approximately 44 dwelling units. In addition, although it is not clear exactly how many unreported boarding houses are in the city, it is appears that businesses have opened at least 18 boarding houses and are operating them as sober living residential occupancies. All of the new facilities, regardless of whether they are located in a duplex or in a single family home, have identified themselves as facilities operating under state protections, claiming to be facilities with six or fewer residents, even though as a single duplex or a multiple development of units the businesses generally operate with 12 or more residents per building. By doing this, the businesses have avoided the permitting process adopted to address and mitigate the impacts of larger facilities. It appears that a number of property owners and business owners are using the federal and state protection for persons with disabilities to set up alleged sober living facilities to avoid complying with City prohibitions against using residential property as a boarding house or other prohibited group residential use. The proposed regulations are intended to address the adverse impacts of the problems the City has encountered with short -term rentals, boarding houses, unauthorized group residential uses, and some residential recovery facilities. The proposed amendments are not intended to prohibit or prevent opportunities for persons with a disability to live and work in the City of Newport Beach. 2007 Issues and Impacts: As stated above, the City has received evidence of increasing numbers of group homes that do not house permanent residents and operate more like institutional and boarding housing uses rather than as single housekeeping units. Uses such as parolee /probationer homes, group residential uses, non - residential uses, and other uses are operating as businesses in residentially zoned areas of the City. In response to the abovementioned questionnaire, residents have expressed concerns regarding the impacts of recovery facilities on residential communities, including, but not limited to, impacts on traffic and parking, conversion of garages to other uses, more frequent trash collection, smoking in the vicinity, exposing residents to secondhand smoke and creating litter from cigarette butts, and excessive noise and loud offensive language. Residents have also reported an increasing number of unlicensed alcohol and drug recovery facilities located in the City provide recovery (sometimes called 'clean and sober") services to recovering drug and alcohol users. However, because no state statutes regulate 'clean and sober" homes, the actual nature and number of these facilities is not known. The Department of Alcohol and Drug Programs (ADP) has Residential Uses Code Amendment August 23, 2007 Page 5 reported to the State Legislature that it receives on average 125 complaints a year regarding sober living homes, with many complaints indicating that unlicensed facilities are offering addiction treatment services without the required license. The City has the highest concentration of licensed and unlicensed residential group uses serving the disabled in Orange County. According to information available from ADP, as of April, 2007, the City has 2.63 licensed alcohol and drug treatment beds per 1,000 City residents, the highest ratio of any city in Orange County. By contrast, the Orange County average is 0.52 licensed beds per 1,000 residents. While the City represents less than 2.8 percent of the County's population, it has over 14 percent of all licensed residential beds in the County. Most of these facilities are concentrated in the R -1.5, R -2, and MFR Districts in West Newport and on the Balboa Peninsula. The concentration of these facilities may conflict with General Plan Land Use Element policies that call from maintaining the City's unique character and the City's residential neighborhoods (LU 1.1 and LU 5.1.1). Policy LU 6.2.7 calls for the regulation of residential care facilities to the maximum extent allowed by federal and state law to minimize impacts on residential neighborhoods. On April 24, 2007, the City Council adopted Ordinance No. 2007 -8, an interim urgency ordinance that imposed a moratorium on the establishment and operation of new residential uses that are transitory in nature. Ordinance No. 2007 -8 also included a moratorium on the issuance of short -term lodging permits. The moratorium was necessary to prevent the expansion of uses that may be harming the residential character of the City's neighborhoods, to provide an opportunity to compile substantial evidence of the impacts of these uses, and to determine whether the current regulations adequately addressed these impacts. On May 22, 2007, the City Council received a written report describing the measures taken to alleviate the conditions that led to the adoption of the moratorium. This report included an analysis of the responses to questionnaires that were distributed to residents to determine the impacts of transitory residential and short -term lodging uses. On May 30, 2007, the City Council extended the temporary moratorium on the establishment and operation of transitory residential uses for five (5) months and allowed the moratorium on the issuance of new short -term lodging permits to expire on June 8, 2007. The City Council also adopted a resolution initiating this code amendment. On June 21, 2007, the Planning Commission held a public hearing on the proposed amendment. The Planning Commission directed staff and outside legal counsel to prepare a point -by -point response (Exhibit 1) to the requests made by the Concerned Citizens of Newport Beach (CCNB; Attachment B) and incorporate them into the code amendment, whenever legally possible. The City later received additional comments from the West Newport Beach Association (WNBA; Attachments C and D), and Residential Uses Code Amendment August 23, 2007 Page 6 requested that outside legal counsel also respond to these requests for revisions to the ordinance. Current Use Regulations Group occupancies are prohibited in all residential districts, with the exception of Residential Care, Limited (facilities with 6 or fewer persons) and Residential Care, General (facilities with 7 or more persons). Residential Care, Limited facilities, both licensed and unlicensed, are permitted by right in residential districts. State law requires that licensed facilities serving six or fewer persons be permitted by right. Residential Care, General facilities are permitted in R -1.5, R -2, and MFR Districts with a "Federal Exception Permit' (FEP). The FEP is a permit and application process required to obtain a "reasonable accommodation" as that term is used in the Federal Fair Housing Act Amendments (FHAA) and the case law implementing the FHAA. The ordinance establishes several specific criteria for facilities that apply for a FEP. The City has not received any applications for a FEP since the provision was adopted in 2004. The City's current zoning ordinance treats applications for use permits in residential districts identically to applications in commercial and other nonresidential districts. In most cases, the City does not require uses that do not conform to the current zoning ordinance, but were legal when they were established ( "nonconforming uses "), to conform to the current ordinance unless the nonconforming uses are a nuisance or impair public health or safety. DISCUSSION Analysis The proposed amendment continues the general prohibition of group occupancies in residential areas, but also continues to permit group occupancy homes for the disabled in these areas to ensure that disabled persons have an equal opportunity to live in residential areas. The proposed amendment also provides stronger protections for preserving the character of residential neighborhoods, by establishing specific criteria for all use permits in residential districts and by requiring the amortization of all nonconforming uses in residential districts. The proposed amendment contains the following revisions to the Zoning Code: ■ More specific and detailed land use classifications for group occupancies. ■ Eliminates the federal exemption permit procedures and replaces them with a use permit requirement. Residential Care Facilities, General are limited to the MFR zone. Residential Uses Code Amendment August 23, 2007 Page 7 ■ Requires a use permit for all residential care facilities, except for licensed facilities with 6 or fewer persons. ■ Adds provisions for "integral facilities," residential care facilities that are jointly operated as larger facilities. ■ Establishes new abatement procedures for all nonconforming uses in residential districts and shortens the maximum time period for abatement, after the use has been found to be nonconforming, from 5 to 2 years. ■ Adds new criteria for all use permit applications in residential areas to protect neighborhood character. ■ Establishes procedures for granting requests for reasonable accommodations for persons with disabilities. ■ Limits certain types of medical uses in commercial districts. A more detailed analysis of the various components of the proposed amendment is provided below. Residential Land Use Regulations Residential Care Facilities. Under the proposed amendment, residential care facilities serving the disabled will continue to be permitted in certain residential districts to provide an equal opportunity for disabled persons to live in residential neighborhoods, as required by State and federal law. The City's zoning ordinance is designed to benefit group residential uses housing persons with disabilities, since no other group residential uses are permitted in the City's residential zones. The Residential Care, Limited (6 or fewer persons with disabilities) land use classification will be replaced with two new classifications: Residential Care Facilities, Small Licensed, and Residential Care Facilities, Small Unlicensed. Residential Care Facilities, Small Licensed, includes only state licensed facilities that are required by state law to be treated as a single housekeeping unit for zoning purposes. Residential Care Facilities, Small Licensed must be permitted by right in residential districts pursuant to state law, which requires that licensed facilities serving six (6) or fewer persons be treated as a single - family use. No zoning requirement may be applied to these facilities that is not applied to other single - family residences in the same zoning district. Residential Care Facilities, Small Unlicensed, will require a use permit to be allowed in R- 1.5, R -2, and MFR Districts and their equivalents in Specific Plan Districts. This is consistent with the City's strict limitation on most uses which are not single housekeeping units in R -1 zones. For instance, short-term lodging permits are not permitted in R -1 zones. Residential Uses Code Amendment August 23, 2007 Page 8 The amendments clarify that if a small licensed or unlicensed facility is part of an "integral facility' (see below for description of integral facility) that serves seven (7) or more persons, it is classified as a Residential Care Facility, General. Residential Care Facilities, General (7 or more persons with disabilities) will be limited to the MFR zone and its equivalent in Specific Plan Districts. The current federal exception permit and special conditions applicable only to these uses will be eliminated and replaced with a use permit requirement. Limiting General Residential Care Facilities, General, to multi - family residential districts presents the issue of whether the City has provided adequate land area to accommodate the need for such facilities. The City currently has 188 acres of land in the MFR District. There are 828 additional acres designated Multiple Residential (RM) in the General Plan in other districts. The RM designation is intended to provide primarily for multi - family residential development containing attached or detached dwelling units. Therefore, there are a total 1,016 acres that can accommodate multi - family residential districts. Staff believes that this is sufficient to meet the local need for such facilities, especially since these facilities are usually located in existing structures. All residents of residential care facilities must be disabled persons who have agreed to reside in the facility for 31 days or more, except for licensees, the licensee's family, and employed staff. The requirement for 31 days' residence is intended to be consistent with the City's requirements for short-term lodging, with occupancy intended for 30 days or less treated as short-term lodging and required to pay transient occupancy tax. Numerous State laws also recognize a distinction between occupancies of 30 days or less and 31 days or more. Other Group Residential Uses. Group Residential uses are land uses that may be transient in nature and operate more like institutional uses and boarding houses than conventional residential uses. Group Residential uses include boarding houses, dormitories, fraternities and sororities, and other groups sharing living quarters. A Group Residential use is different from a group of unrelated persons living as a family (or a "single housekeeping unit "). Residents living as a single housekeeping unit (whether related or unrelated) jointly occupy a single dwelling, have no more than one rental agreement (if they are leasing the home), are jointly responsible for payment of rent, use common facilities such as the kitchen, and share usual household activities such as meal preparation — in other words, they operate in ways typical of a traditional family. By contrast, persons in group residential uses do not live together as a single housekeeping unit. In particular, rooms are rented under two or more separate rental agreements. A single housekeeping unit (defined as a "family ") may reside in any residence in the City. Group Residential uses (boarding houses, dormitories, fraternities and sororities, and other sharing living quarters) will continue to be prohibited in all residential districts, except for group residential uses serving the disabled. Residential Uses Code Amendment August 23, 2007 Page 9 Parolee- Probationer Homes. The Califomia Department of Corrections has reported that approximately 70 percent of persons on parole will be returned to prison each year because they have either been convicted of new crimes or have violated the conditions of their parole. Given this high recidivism and parole violation rate, residences housing two or more parolees may pose a danger to the safety of the community and adjacent residents (see Attachment E). The proposed amendment adds a new land use classification for parolee- probationer homes, which includes a residential structure that houses two or more parolee - probationers unrelated by blood, marriage, or legal adoption, in exchange for monetary or non - monetary consideration and excludes licensed facilities for disabled persons. The definition of parolee - probationer has been expanded to include all persons under supervision after a felony conviction. These facilities are prohibited in all districts. Other Land Uses. Convalescent homes and hospitals were deleted from the base residential districts land use schedule. This provision appears to be a carry over from a time when the City had no institutional districts. No such uses currently exist in residential districts in the City, and such uses are not appropriate for residential districts. Single -room occupancy (SRO) residential hotels will also be prohibited in all residential districts. SRO hotels are buildings with 6 or more guest rooms without kitchen facilities that serve as the primary residences of the hotel guests. Currently, SRO hotels are permitted in MFR Districts with a use permit. This use is essentially a commercial boarding house. Therefore, this use should be prohibited from residential districts, like other group residential uses. However, the Housing Element identifies SRO hotels as a needed form of transitional housing. Therefore, SRO hotels will continue to be permitted in commercial districts with a use permit. Integral Facilities The proposed amendment adds a new definition of "Integral Facilities" to the Zoning Code, which reads as follows: Two or more Residential Care Facilities (Small Licensed, Small Unlicensed, or General), as defined in Section 20.05.030, which may or may not be on contiguous parcels of land, that are under the control and management of the same owner, operator, management company or licensee, including affiliates of such entities, and are integral components of the same residential facility, such as by providing housing in one facility and recovery, treatment, meals or other services in another residential facility; by designating one residential facility to provide recovery, treatment, meals or other services for several residences; or by assigning staff to serve more than one facility located on the same site or within the same building. As defined by State law, all alcohol or drug abuse recovery or treatment services within any one place or building shall be considered to be one facility. Residential care facilities that are eligible to be licensed as a single facility under State law shall be considered to be integral facilities, regardless of the number of licenses actually held. Residential Uses Code Amendment . August 23, 2007 Page 10 The new integral facilities definition is intended to address the problem of operators claiming to operate small residential care facilities, which are permitted by right in all residential districts, but who in reality are operating larger facilities because of integrated operations. An example might be a 3 -unit building which houses what is claimed to be three separate small facilities of 6 persons each, but in reality is operated as a large facility searing 18 persons. A related change in Section 20.010.20 and the Specific Plan Districts also prohibits a residential use from providing services to persons not residing on the site, unless the City has approved a use permit allowing such use, or unless it is in compliance with the City's home occupation regulations. Use Permits in Residential Districts New Chapter 20.91A (Use Permits in Residential Districts) applies special requirements to use permits in residential zones to preserve the character of residential neighborhoods. These special requirements are designed to respond to the concerns of residents that conditional uses are resulting in residential districts having a non- residential character. The added requirements include application requirements, development and operation regulations, and extended findings. Application Requirements. In addition to the standard application requirements, an application for a use permit in a residential district will need to provide the following information and materials: ■ Number and types of users of the facility (including staff, clients, visitors, students, etc.). ■ The hours of operation, types of activities, and typical attendance at activities. ■ The availability of public transportation and the expected parking demand and vehicular use. ■ An operations and management plan to ensure compliance with state and local law, and rules of conduct for all users of the site. ■ A list of other uses of the same type in Newport Beach and the licensed or authorized capacity of those uses, and evidence of the need for the facility by residents of Newport Beach. ■ The number of residents per room, maximum number of occupants, typical length of stay, and any guest or client rules of conduct. Over Concentration and Separation. If the City determines that the City contains adequate facilities of that use type to serve the needs of Newport Beach residents, then Residential Uses Code Amendment August 23, 2007 Page 11 no more than one use of that type may be permitted on any block. Furthermore, no uses of the same type shall be located within 75 feet of each other. These over - concentration provisions do not apply to existing uses that are nonconforming only because they lack use permits. Applying these provisions to existing uses would require the City to choose which existing facility, of several existing ones, could remain in the City. It would be very difficult to determine a rational, consistently applied basis for choosing one facility and not the others. However, all of the other provisions of this section would apply to existing uses that request use permits. Other Operational Regulations. Conditional uses in residential districts will be required to comply with the following regulations: ■ Maximum occupancy will be limited to no more than 2 residents per bedroom, plus one additional resident. ■ Outdoor smoking will be prohibited within 15 feet of the property lines of the site. • The property must be operated in compliance with applicable state and local law and in conformance with the management and operating plan and rules of conduct submitted as part of the application. ■ Operators must obtain all business licenses required by the City. Residential Care Facilities. Unlicensed residential care facilities serving individuals with disabilities will be required to comply with the following standards. These are designed to be of benefit to the disabled by ensuring that these facilities are operating in a manner that is consistent with state and federal law and with established standards, and that the operators do not have a pattern or practice of operating similar facilities in violation of state or local law: ■ Owners, managers, operators, and residents cannot provide onsite any services which would require licensure of the facility under California law. ■ Certification is required, if available, from a governmental agency or qualified nonprofit organization. ■ The names of all persons and entities with an ownership or leasehold interest in the facility, or who will participate in operation of the facility, must be disclosed in writing to the City, and such persons and entities do not have a pattern or practice of operating similar facilities in violation of state or local law. Residential Uses Code Amendment August 23, 2007 Page 12 ■ The operator must provide a list of the addresses of all similar facilities in the State of California owned or operated by the operator. The operator must certify that none of such facilities are operating in violation of state or local law. Staff believes that these amendments will respond to the community's concern about over - concentration and changes to the residential character of neighborhoods by examining these issues for all conditional uses in residential districts, including schools, churches, and bed and breakfast inns. Reasonable Accommodation The proposed amendment adds a reasonable accommodation chapter that is needed to assist the City in complying with federal and state fair housing laws. The new Chapter 20.98 sets forth the City's policy to provide reasonable accommodation in its zoning regulations when needed to provide an individual with a disability an equal opportunity to use and enjoy a residence or avoid discrimination on the basis of disability. The amendment establishes a procedure where requests for reasonable accommodation may be reviewed in two ways. If the project requires a discretionary planning approval, the request for reasonable accommodation will be subject to the same notice, hearing, and appeal procedures as the planning approval, will be heard with the discretionary planning approval, and may be approved, conditionally approved, or denied by the entity that is considering the other discretionary permit. For instance, if a project requesting a use permit also desires a reasonable accommodation, the request for a reasonable accommodation would be heard along with the use permit. This is intended to ensure that the procedure meets due process requirements for notice to neighbors regarding changes in planning requirements. For projects that require no discretionary permit (for instance, projects that would require only a building permit), the request for reasonable accommodation may be approved, conditionally approved or denied by the Zoning Administrator. In order to balance the privacy and equal opportunity rights of persons with disabilities with the due process rights of neighbors to receive notice, the reasonable accommodation process for these projects provides for limited notice of a reasonable accommodation determination to the abutting property owners (including those across the street and/or alley) only after the initial decision is made. The applicant, the abutting neighbors, or a member of the Planning Commission or City Council may then appeal the initial decision to grant or deny a reasonable accommodation, and a hearing will be held. Commercial Land Uses Staff was directed to investigate prohibiting residential care facilities from operating counseling facilities in retail storefronts. Such facilities are seen as particularly incompatible with the Peninsula's commercial areas, which are intended to serve as Residential Uses Code Amendment August 23, 2007 Page 13 pedestrian- oriented villages with a mixture of retail, visitor - serving, and marine - oriented commercial uses. Counseling facilities are typically classified as either medical offices or public assembly uses. Because the City must apply its land use regulations in a non - discriminatory fashion, any new controls would have to apply to all uses of these types. The City can not discriminate against certain types of medical treatment. Therefore, all medical office uses would have to be restricted. Likewise, all types of public assembly uses would have to be restricted, including places of worship, clubs, lodges, youth and senior centers, and similar facilities. The land use regulation schedules of the SP -4 (Newport Shores), SP -6 (Cannery Village/McFadden Square), and SP-8 (Central Balboa) Districts have been revised to prohibit clubs and lodges, religious assembly, and medical office uses. As an alternative, the Planning Commission may wish to consider prohibiting these uses on the ground floor. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) protects individuals, houses of worship, and other religious institutions from discrimination in zoning and land use regulations. RLUIPA prohibits the City from adopting regulations that substantially burden the religious exercise, religious assemblies or institutions absent the least restrictive means of furthering a compelling governmental interest. Therefore, no changes to the land use regulations for religious assembly are proposed. There are a few other commercial areas in West Newport and the Peninsula. These areas are in the Retail and Service Commercial (RSC) District. Since the RSC District is used on commercial properties citywide, staff believes that changes to the land use regulations would be better addressed through the Zoning Code rewrite. Vacation Home Rentals A new residential use classification for Vacation Home Rental is provided for dwelling units that are rented or leased for a period of 30 days or less. The Vacation Home Rental use classification is consistent with and recognizes the use of vacation rentals in the R -1.5, R -2 and MFR Districts and their equivalents in Specific Plan Districts. No changes to the permitting requirements and regulations are proposed as part of this code amendment. However, a separate code amendment (CA 2005 -006) amending Chapter 5.95 (Short Term Lodging) is being prepared to address the impacts to residential neighborhoods identified by residents. Since 2004, the City has prohibited the issuance of new short-term lodging permits in single - family districts, but allowed existing permits to remain valid. Since the proposed code amendment will require all nonconforming uses in residential zones to conform within two years of being found nonconforming, these nonconforming short-term lodging units will also have to be amortized. Of the 801 valid short-term lodging permits in the City, 88 are Residential Uses Code Amendment August 23, 2007 Page 14 located in single family districts. It is estimated that 30 of these 88 permits are currently active. Amortization and Abatement Within 120 days of the effective date of this code amendment, the City will have to begin to identify and inventory all nonconforming uses in residential districts. The City will then send written notice to the owners of all properties identified by the inventory as nonconforming uses and subject to abatement. The property owner will have 45 days to submit an application to the Planning Department demonstrating that the use conforms to the use regulations and required conditions for the district in which it is located. The Planning Director will be required to make a determination regarding the use's nonconforming status no more than 90 days after receiving a complete application. The Planning Commission will be required to hold public hearings to consider whether abatement will be required for the nonconforming uses identified in the inventory. Within 14 days following approval of an inventory, the City shall send written notice to the owners of all properties subject to abatement. The abatement period for nonconforming uses in residential districts is two years from the date of approval of the inventory. The property owner may request an extension of the abatement period to amortize the property owner's investment in cases of economic hardship and to avoid a taking. Requests for extensions will be considered by the Planning Commission at a public hearing. All decisions of the Planning Director may be appealed to the Planning Commission, and all Planning Commission decisions may be appealed to the City Council. Enforcement The identification and inventory of all nonconforming residential uses will involve considerable use of City resources. This will have to be conducted Citywide. However, it will most likely be divided into smaller geographic areas and prioritized. The major types of nonconformities that will need to identified and inventoried are: ■ Nonconforming commercial operations (except for legal home occupations). ■ Nonconforming short-term lodging permits. ■ Nonconforming dwelling unit types, such as a three -unit dwelling in a two -unit district. ■ Group residential uses made nonconforming by the proposed code amendment. Residential Uses Code Amendment August 23, 2007 Page 15 In many cases, evidence of nonconformities will not be reflected in official records or visibly apparent. Investigations will involve review of building permits, utility records, advertising and rental listings, field inspections, and interviews. Code and Water Quality Enforcement will be the lead division conducting these investigations, with assistance from the Planning, Building, Fire, and Police Departments and the City Attorney's Office. Public hearings on the inventory, abatement period time extension requests, and appeals will also require a considerable amount of time and resources of the Planning Department, Planning Commission, and City Council. Environmental Review The proposed action is not defined as a project under the California Environmental Quality Act (CEQA) because it involves general policy and procedure- making activities not associated with a project or a physical change in the environment (Section 15378 of the CEQA Guidelines). Public Notice Notice of this hearing was published in the Daily Pilot a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the City website. Submitted by: v D vid Lepo, PI n ing Director EXHIBITS (in the order they are referenced within the report) 1. Goldfarb & Lipman memorandum w/1996 Legislative Counsel opinion 2. Draft resolution 3. Exhibit A (Revisions to Chapters 20.03 — 20.45) 4. Exhibit B (Revisions to Chapter 20.91 — Use Permit and Variances) 5. Exhibit C (New Chapter 20.98 - Reasonable Accommodation) 6. Exhibit D (Revisions to Chapter 20.62 — Nonconforming Uses and Structures) 7. Exhibit E (New Chapter 20.91A — Use Permits in Residential Districts) ATTACHMENTS A. Analysis of Responses to Questionnaires Regarding Transitory Uses Residential Uses Code Amendment August 23, 2007 Page 16 B. Requested Revisions to the Proposed Residential Care Facilities Ordinance (Concerned Citizens of Newport Beach; June 21, 2007) C. Letter Requesting Revisions to City Ordinances Concerning Drug /Alcohol /Etc. Homes (West Newport Beach Association; July 5, 2007) D. E -Mail Adding to Comments from West Newport Beach Association (Robert Rush; July 6, 2007) E. Department of Corrections, Total Felon Parolees Returned to California Prisons F. March 8, 2007 letter to ADP G. Alcohol and Drug Treatment Needs: Has Newport Beach Addressed Its "Share"? H. APA Policy Guide on Community Residences I. Joint Statement of the Dept. of Justice and Dept. of HUD: Group Homes, Local Land Use, and the Fair Housing Act J. Residential Care Facilities in the Neighborhood: Federal, State, and Local Requirements' (California Research Bureau) K. Correspondence receive since Aug. 13, 2007 F. WSERSIPLMShareMPA'sIPAs - 20071PA2 00 7- 1 1 218 -2 3 PC Draft Staff Report FINAL.DOC This Page intentionally left blank. 17 1 .J'1 EXHIBIT 1 1g THIS PAGE INTENTIONALLY LEFT BLANK I goldfarb 1300 Clay Street, Ninth Floor l i pma n Oakland, California 94612 attorneys 510 836 -6336 M David Kroot August 13, 2007 Lee C. Rosenthal memorandum John T. Nagle Polly V. Marshall Lynn Hutchins Karen M. Tiedemann To Thomas H. Webber City of Newport Beach Planning Commission John T. Hoygood From Dianne Jackson McLean Michelle D. Brewer Polly V. Marshall and Barbara E. Kautz Jennifer K. Bell RE Robert C. Mills Proposed Zoning Ordinance Amendments Isobel L. Brown James T. Diamond, Jr. William F. DiCamillo In response to your comments at the June 21, 2007 Planning Commission meeting, we Margaret F. Jung have worked with the City Attorney's office and City Planning staff to make additional Heather J. Gould changes to the Newport Beach Zoning Code proposed amendments concerning group occupancies. As requested at the June 21 meeting, this memorandum provides a point - Juliet E. Cox by -point response to the requests made by the Concerned Citizens of Newport Beach Erica Kyle Williams (CCNB), as stated in the memorandum presented at the meeting by Alene Taber, Esq. Amy DeVoudreuil As requested by the City, we also include a point -by -point response to additional issues Barbara E. Kautz raised by the West Newport Beach Association (WNBA). Luis A. Rodriguez 1. Small Unlicensed Residential Care Facilities The CCNB memo states that the ordinance amendments as presented on June 21, 2007 are silent as to unlicensed residential care facilities with six or fewer residents, and requests that the amendments be revised to require new and existing unlicensed facilities for six or fewer residents to obtain conditional use permits. Facsimile 510 836-103s The CCNB memo is inaccurate on this topic. The ordinance amendments presented on San Francisco June 21 were not silent as to this category of facilities and actually imposed more 415 788.6336 stringent requirements than those requested by the CCNB, as follows: Los Angeles . Under the existing zoning code, both licensed and unlicensed facilities of six or 213 62 7- 6336 fewer residents are excluded from the "group residential" definition and San Diego consequently permitted by right in all residential zones. 619 239- 63 36 Goldfarb & Lipman LLP • Under the draft amendments presented June 21: 1526\02\472574.2 as August 13, 2007 Page 2 o only licensed facilities for six or fewer residents were excluded from the "group residential" definition and permitted by right in all residential zones (as required by state law, which requires they be considered a "family" and subject to the same requirements as apply to other dwellings for one family). o The June draft of the amendments included a special ministerial reasonable accommodation application to operate an unlicensed home for six or fewer disabled residents. Under the revised amendments, new unlicensed facilities for six or fewer residents are permitted only with a use permit and only in R -1.5, R -2, and MFR zones. If the proposed amendments are adopted, the Planning Commission will hold a use permit hearing for every application for a residential care facility, regardless of size, except for licensed facilities of six or under, with Planning Commission decisions appealable to the City Council, which would then also hold a public hearing on the permit. 2. Definition of Integral Facilities The CCNB memorandum states that the definition of integral facilities is incomplete and does not include all types of residential care facilities, such as unlicensed facilities. This statement is inaccurate. The integral facilities definition, both as proposed and as revised, includes all types of residential care facilities, including small licensed and unlicensed (six or under) and general (over six). The integral facilities definition does not include separately operated purely residential facilities where treatment is provided off -site in commercial zones. This is because the rationale behind the new regulations is to regulate impacts on residential neighborhoods. Off -site treatment in commercial zones does not impact residential neighborhoods and cannot legally be distinguished from residents of traditional single family homes seeking medical treatment out of their neighborhoods in commercial districts, including at the local hospital. • The letter received at the June 21 Planning Commission meeting from Sober Living by the Sea argues that this definition is pre- empted by state law. While there is support for the City's enforcement of the definition as currently drafted, there is no basis for considering commercial offices located in commercial zones to be part of residential care facilities located in residential zones. 1526\021472574.2 a� August 13, 2007 Page 3 The City may regulate the location of medical and counseling uses in commercial zones, and the Planning Department has proposed possible amendments. These also respond to the concerns expressed by WNBA regarding the SP Zones and Newport's retail villages and are discussed in a separate report from the Planning Department. 3. Reeistration of Residential Care Facilities The CCNB and WNBA memos request that all residential care facilities be required to register with the City. If registration applies only to residential uses where persons with disabilities reside (and not to all residential uses), courts would consider the requirement to be "facially discriminatory" under the Fair Housing Act. Facially discriminatory requirements (discussed in more detail in the next section) can only be justified if the requirements benefit persons with disabilities or respond to legitimate safety concerns, rather than being based on stereotypes. No evidence has been presented to date that a registration requirement would benefit persons with disabilities or would have any effect on safety concerns. Courts have rejected special building or zoning requirements that are asserted to be necessary to protect persons with disabilities but actually operate to restrict or limit options or make housing for these persons more expensive. A registration requirement applying only to facilities serving the disabled could be viewed as particularly offensive to a court because of the invasion of privacy it represents and because it could assist persons who intend to harass disabled residents. Any registration requirement that applies to licensed facilities of six or fewer residents violates state law. A licensed facility serving six or fewer persons must be considered a residential use of property, and the residents and operators must be considered as a "family. "' The City cannot require registration of these licensed facilities unless it requires all dwellings housing one family to register with the City. Existing City law already requires that all commercial enterprises in all zoning districts, including residential districts, obtain a City business license. An exemption is available only for nonprofit and charitable uses (Section 5.04.070). Consequently, all facilities serving seven or more residents and all unlicensed facilities serving six or fewer residents must obtain a business license, unless carried out for charitable or nonprofit purposes. We have added language to the draft amendments emphasizing that this existing City requirement applies to all businesses in residential zones. ' See, e.g.. Health & Safety Code Sections 1566.3, 1568.0831, 1569.85, and 11834.23. 1526\02\472574.2 p, August 13, 2007 Page 4 4. Addressin¢ Over - Concentration CCNB and WNBA wish to address over - concentration by adding spacing requirements to the ordinance amendments, requiring all new and existing residential care facilities in Balboa Peninsula, Lido Isle, Newport Heights, West Newport and Corona Del Mar to be subject to a dispersal requirement of 1,000 feet from any other residential care facility. In addition, WNBA asks that no group homes be permitted within 1,000 feet of any school, day care facility, public park, or senior citizens facility and has asked that public beaches be protected from rehab patients. The draft amendments include use permit criteria to address overconcentration of any kind of conditional use in a residential district to ensure that the residential character of the neighborhood is preserved. Because the spacing requirement proposed by CCNB and WNBA would apply only to facilities providing housing for persons with disabilities (whether a single disability or many different kinds of disabilities) courts would consider it to be "facially discriminatory" under the Fair Housing Act. Facially discriminatory requirements can only be justified if the requirements benefit persons with disabilities or respond to legitimate safety concerns, rather than being based on stereotypes.z Regarding benefit to Persons with disabilities: Although an argument can be made that a spacing requirement promotes integration of group homes into neighborhoods, to the benefit of persons with disabilities, courts have only permitted such requirements where concentration was so great as to re- create an institutional environment (see discussion of the Familvstvle case below). Courts more often view spacing requirements as an attempt to block the approval of group homes than as an attempt to integrate them. To date, no evidence has been submitted by CCNB or WNBA or residents demonstrating that a spacing requirement of 1,000 feet would benefit persons with disabilities. • Regarding legitimate safety concerns: Courts have uniformly held that these concerns must be based on objective, individualized evidence about the threat posed by a particular facility or individual, and have cited police reports as the most reliable form of evidence of threats to public safety and unsubstantiated opinion as the least reliable form of evidence of threats to public safety.3 Z See Community House v. City of Boise, 468 F.3d 1118, 1125 (9th Cir. 2006; amended June 2007). 3 See id. at 1826. Even evidence of more police reports at group homes might not be enough to convince the court that legitimate safety concerns exist. In the Community House case, the shelter's executive director testified that there were fewer police calls at men -only facilities. The court responded as follows: "The'fewer police calls' does not establish that the men -only policy is justified by safety concerns. There could have been fewer police calls due to fewer residents at the other facilities. Or, there could have been 1526 \02\472574.2 �5 August 13, 2007 Page 5 Newport Beach police reports do not show that residential care facilities or clean and sober homes generate greater than the average number of police calls. Indeed, police reports show that tourist rentals, not care facilities, generate the most calls. The courts demand very strong evidence of "legitimate safety concerns." In a case involving a group home in Bellevue, Washington, the city attorney testified that the City was concerned about crime committed by residents with a prior criminal history. The court found that his testimony provided no evidence showing that residents in a group home would be any more dangerous than if they lived with their relatives. It also did not demonstrate that any specific individuals constituted a direct threat.° In a very recent case involving separation requirements for methadone clinics in Reading, Pennsylvania, the court found no evidence to support the City's and State's assertions that there was a link between methadone clinics and increased crime or that methadone patients posed a significant risk. While the court agreed that some methadone patients are inclined to criminal or dangerous behavior, this did not justify limits on all methadone patients.5 WNBA's correspondence and other public testimony demanding spacing of residential care facilities at least 1,000 feet from schools, parks, churches, day care centers, and senior housing and control of patients on public beaches provides possible evidence of discriminatory intent, as similar public concerns have been held by courts to be clearly discriminatory and based on negative stereotypes of persons with disabilities.6 Including schools, parks, churches, day care centers, and senior housing in distancing restrictions would undermine any potentially valid arguments that spacing requirements will benefit the restricted persons. The City already has ordinances regulating smoking on beaches and beach use for commercial activities, and these may be enforced in a non - discriminatory fashion against all beachgoers. fewer police calls due to fewer disabled residents and therefore less need for emergency response service." Id. 'See Children's Alliance v. City of Bellevue, 950 F. Supp. 1491, 1498 -99 (W.D. Wash. 1997). 5 See New Directions Treatment Servs. v. City ofNeading, 2007 U.S. App. LEXIS 14025, 26 -30 (3d Cir. 2007) 6See, e.g.. Oxford House v. Town of Babylon, 819 F. Supp. 1179 (E.D.N.Y. 1993), in which the court found discriminatory intent based on the township's response to comments in a public meeting such as "1 don't want [my son] subjected to irrational, unpredicted [sic] behavior from people," .. [w]hat can you do to help us remove this threat from our community[ ?]" and concern voiced at the meeting about an elderly neighbor with a bad heart whom the speaker feared would die of fright if a sober living home resident broke into his house. Id. at 1184. See also Oxford House - Evergreen v. City ofPlainfeld, 769 F. Supp. 1329, 1343 n.18 (D.N.J. 1991) (finding evidence of discriminatory intent in statement that "facility would have a deleterious effect on [the] neighborhood)." 1526 \02\172574.2 aq August 13, 2007 Page 6 A 1,000 foot spacing requirement that applies to all residential care facilities could also be challenged as violating the equal protection or due process clauses of the U.S. Constitution, as there is no rational basis (for example) for requiring a residential facility for persons with orthopedic disabilities to be located at least 1,000 feet from a residential care facility for the elderly or for persons with developmental disabilities or for the blind or the hearing impaired .7 • A 1,000 foot spacing requirement that applies to licensed facilities serving six or fewer persons would violate state law because similar spacing restrictions are not being placed on single - family homes.8 The CCNB cites two court decisions, Oxford House v. City of St. Louis9 and Familystyle of St Paul, Inc. v. City of St. Paull ° as supporting the City's ability to legally enact spacing requirements. Both cases are from the federal Eighth Circuit and are not binding on the Ninth Circuit, whose jurisdiction includes California. In fact, the standards used to decide both cases have been rejected in the Ninth Circuit. The Oxford House decision upheld an occupancy requirement, not a spacing requirement. It upheld a city ordinance which restricted occupancy of a single family dwelling to three unrelated persons or to up to eight unrelated persons who are disabled, in the face of a challenge by Oxford House which wanted to house ten unrelated disabled persons in a single family home. In California, City of Santa Barbara v. Adamson1l does not permit the City to limit the number of unrelated persons in a household. The Familystyle case had fairly unusual facts: the plaintiff sought to add three new group homes to its eighteen existing group homes located on a single campus, yielding a total of twenty -one group homes housing 130 persons with mental illness within an area of one and one- half blocks. The Familystyle decision upheld a State of Minnesota licensing requirement and a City of St. Paul zoning requirement that group homes for the mentally impaired be located at least a quarter of a mile apart unless a special use permit were granted. The court held that this spacing requirement did not violate the Fair Housing Act because the dispersal requirement was a legitimate means to achieve the state's goals to deinstitutionalize the mentally ill. 7 See, e.g., id. at 1343 n.19 (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)). 8 See, e.g., Health &Safety Code Sections 1566.3, 1568.0831, 1569.85, and 11834.23. 9 77 F.3d 249 (8`" Cir. 1996). 0 923 F.2d 91 (8'" Cit. 1991). 27 Cal. 3d 123, 133 (1980). 1526\024725742 �5 August 13, 2007 Page 7 o In November 2006, in the case of Community House v. City of Boise, the federal Ninth Circuit Court of Anneals (whose jurisdiction includes California) explicitly rejected the "legitimate state interest" test used by the Eighth Circuit in Familvstvle and instead adopted the strict standard used by the Sixth and Tenth Circuits to determine whether ordinances that facially discriminate against a protected class of people comply with the Fair Housing Act: in the case of facial discrimination, a city must show that either (1) the restriction benefits the disabled: or (2) the ordinance responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes. 12 o Two months later, the United States District Court for the District of Nevada (which is part of the Ninth Circuit) applied the strict standard adopted in Community House to strike down an ordinance that it found to be facially discriminatory because it imposed a 1,500 foot spacing requirement on group homes occupied by disabled adults. 13 CCNB also cites a California Attorney General Opinion (86 Ops Atty Gen 30 (2003) which concludes that cities may prohibit, limit, or regulate the operation of boarding houses in low density residential zones to preserve the residential character of the neighborhood. We are aware of this opinion and, indeed, have relied upon it in advising the City that it may continue its broad prohibition of group residential uses. However, the opinion in no manner addresses or sanctions a spacing requirement that would apply just to residences housing persons with disabilities. Current State law requires that certain community care facilities be separated by at least 300 feet. 14 This legislation was adopted in 1978, prior to passage of the amendments to the Fair Housing Act which protect disabled persons. To our knowledge, these separation requirements have not been challenged. They do not apply to alcohol and drug addiction treatment facilities, nor do they apply to licensed residential care facilities for the elderly. At least nine bills have been introduced in Sacramento since 1996 (the most recent being in 2006) to regulate the "overeoncentration" of alcohol and drug addiction treatment facilities, all of which failed or were vetoed with the stated reason being that they violated fair housing laws. At least five of these proposed bills would have imposed distancing requirements. Three California Legislative Council Opinions opine that such distancing requirements would 12 See Community House v. City of Boise, 468 F.3d 1118, 1125 (9th Cit. 2006; amended June 2007). "See Nevada Fair Housing Center, Inc. v. Clark County, 2007 U.S. Dist Lexis 12800(D. Nev. Feb. 22, 2007). 14 See, e.g., Health and Safety Code Section 1520.5. 1526 \02\472574.2 is August 13, 2007 Page 8 likely violate fair housing laws. One such legislative counsel analysis, regarding SB 1690, is attached to this memo for your reference. This opinion was issued in 1996, even before the Ninth Circuit decision in Community House v. City of Boise. Finally, CCNB cites Riverside and Murrieta as cities that have spacing requirements that apply to residential care facilities in residential districts. To our knowledge, neither ordinance has been challenged, and no court has determined whether these ordinances are discriminatory or not. Without having the full record that led to adoption of the ordinances, including the evidence presented to the City, we cannot address how a court might view these requirements. Rather than including spacing requirements that are likely to be overturned by a court, the draft amendments now before the Commission have responded to the community's concern about over - concentration and changes to the residential character of neighborhoods by examining these issues for all conditional uses in residential districts, including schools, churches, and bed and breakfast inns. The ordinance is narrowly tailored to avoid concentrating uses that could re- create an institutional setting or that may result in changing residential neighborhoods entirely, whether due to over - concentration of schools, inns, or group homes. The ordinance requires applicants for use permits to submit evidence of the need for the use by the residents of Newport Beach. If there is evidence that the needs of the City's residents have been met for that use category, then any new uses must be separated by at least 75 feet, and only one use of that type may be located on any block. The City may also consider evidence of over - concentration and change in neighborhood character in making required findings to grant a use permit. 5. SPecifvinp—Use Permit Criteria CCNB and WNBA request that the ordinance specify criteria that the City will use to grant or deny use permits for residential care facilities. The revised amendments (new Chapter 20.91A) include new criteria for all use permit applications in residential areas, as well as specialized criteria for unlicensed residential care facilities. 6. Transition Provisions CCNB and WNBA request transition provisions that include registration within 30 days of ordinance adoption, CUP applications and decisions within 180 days after registration, and no grandfathering and no exemptions. • The City has regularly grandfathered existing uses when new prohibitions are adopted or use permits are required (for example, prohibition on short term rentals in R -1 districts and use permit requirements for liquor stores). To 1526102\472574.2 10 i August 13, 2007 Page 9 impose new requirements only on existing uses serving the disabled, including abatement of such uses, would be facially discriminatory and not permissible for the reasons discussed previously. The revised amendments include the following transition provisions to deal with the problem of nonconforming uses that are not consistent with the character of residential neighborhoods: If this ordinance is adopted, the City will commence an inventory of all nonconforming uses in all residential districts of the City. All owners of property found to be nonconforming will be notified and given an opportunity to contest their designation as "nonconforming." The inventory will then be presented to the Planning Commission for review and approval. (If desired by the City, the inventory may be done in phases, and presented to the Commission in phases.) • All non - conforming uses in residential zones will be ordered to conform to the current zoning ordinance within two years after the Planning Commission approves the inventory. • If a use permit is required for any use that formerly did not require a use permit, the owner must receive a use permit within the two -year abatement period, or the use must be terminated. If the owner believes a longer period of time is required to prevent hardship or a taking, the owner may apply to the Planning Commission for an extension of time. These amendments will apply not only to these ordinance amendments, but to all future zoning ordinance amendments that have the effect of making existing uses in residential districts nonconforming. In particular, they will apply to any existing uses in residential districts that become nonconforming after the City completes updates to its zoning ordinance. Alternative Sentencine Proerams WNBA requests that no probationer or parolee can be housed in alternative sentencing programs, unless there is a determination that the probationer /parolee is from Newport Beach. We are not aware of the "alternative sentencing programs" being described. The definition of "parolee /probationer" was expanded to include persons under the jurisdiction of any federal, state, county, or local agency after commission of any felony, whether or not the person previously served time in state or federal prison. 1526\02\172574.2 11 August 13, 2007 Page 10 8. Hybrid Homes Y,/NBA requests that all residents of residential care facilities be required to be disabled, and that the facilities not be allowed to be used part of the year as a vacation rental. The definitions of residential care facility, general (7 or more persons) and residential care facility, small unlicensed, have been modified to indicate that all residents must be disabled, except for any licensee, staff, and members of the licensee's family. We will be present at the August 23d Planning Commission meeting to discuss these issues further. Enclosure: Legislative Counsel Opinion dated April 30, 1996 1526 \02\472574.2 R Eft" M WM AobaN& Webb.g jWk Q a D. WMIM Jsekh.men DvpaYa Honorable:Quentin L. Kopp 2057 State Capitol Community Care Facilities: Dverconcentration - #8974 Dear Senator Kopp: You have asked whether Senate Sill No. 1690, if enacted as introduced, would violate the.antidiscrimination provisions of • the federal Fair Housing Amendments Act of 1988. Senate Sill No. 1690, as introduced February 21, 1996, (hereafter S.B. 1690) would require the Director of Social Services and the Director of Alcohol and Drug Programs to deny within their jurisdictions an applicatign for a community care facility license (Sec. .1520.5, H.& S.C. , S.S. 16901, residential care facility for the.elderly license (Sec. 1569.156, S.S. 1690), or an alcoholism or drug abuse recovery or treatment facility license '(Sec. 11834.28, S.B. 1690) if granting the license would result in the facility being within 500 feet of any existing community care.facility, residential care facility for the elderly, or alcoholism or drug abuse recovery or treatment facility. However, the directors would be authorized to approve a separation distance of less than 500 feet with the approval of the city or county in which the proposed facility would be located (subd. (b), Secs. 1520.5, 1569.156, and 11834.28, S.S. 1690). ' For purposes of S.S. 1690; subdivision (a) of Section 1502 defines a "community care facility," in part, as follows: 111502. As used in this chapter: ® i Unless otherwise indicated, all further code references are to the Health and Safety Code. LRI Part 2 _ Provided by Legislative Research Incorporated (800) 530 -7613 Page 268 of 483 q I\ 0` MtlAMAl D. ain �'1{.Yev.r�. Faa�er jar l/,�I 3.+4�.y{L7J�.Y�.G PaAAnOp Jdn T. Sndebak. �Y4+A.NI�M��4� l�S✓/ CnazesFASOB '� �yCy �y.µy}Y �y Mp. ��DWSwW&Wekx of MU'UIi1�l+JY.44 a DDbbWF.B Vine �F� Comm RDWC 1.D* EYMAMs ibbMD. Gr Cwy..LDptl J BION M. GREGORY akmM POEM D. Mil. Emrs CMar T, D. PowatlN Ben EDWa Ja AB�byOelaWDar�wn CMRapn.3b"a CAM AdsWR .Mmkp Dap4s FM &Daft M.aenR & Dm Ba.uneI%CA95Bf4C496 CbY RaY. 0161 ia6 -3057 P" meD THaMper,018137aWw Debis2MbM1 GUMS Sacramento, California w� 5 April 30, 1996 a °Hd ,° MW Hkd=HMW JMT.HMYBbn _ MW& Hat Yh"s R Hear Eft" M WM AobaN& Webb.g jWk Q a D. WMIM Jsekh.men DvpaYa Honorable:Quentin L. Kopp 2057 State Capitol Community Care Facilities: Dverconcentration - #8974 Dear Senator Kopp: You have asked whether Senate Sill No. 1690, if enacted as introduced, would violate the.antidiscrimination provisions of • the federal Fair Housing Amendments Act of 1988. Senate Sill No. 1690, as introduced February 21, 1996, (hereafter S.B. 1690) would require the Director of Social Services and the Director of Alcohol and Drug Programs to deny within their jurisdictions an applicatign for a community care facility license (Sec. .1520.5, H.& S.C. , S.S. 16901, residential care facility for the.elderly license (Sec. 1569.156, S.S. 1690), or an alcoholism or drug abuse recovery or treatment facility license '(Sec. 11834.28, S.B. 1690) if granting the license would result in the facility being within 500 feet of any existing community care.facility, residential care facility for the elderly, or alcoholism or drug abuse recovery or treatment facility. However, the directors would be authorized to approve a separation distance of less than 500 feet with the approval of the city or county in which the proposed facility would be located (subd. (b), Secs. 1520.5, 1569.156, and 11834.28, S.S. 1690). ' For purposes of S.S. 1690; subdivision (a) of Section 1502 defines a "community care facility," in part, as follows: 111502. As used in this chapter: ® i Unless otherwise indicated, all further code references are to the Health and Safety Code. LRI Part 2 _ Provided by Legislative Research Incorporated (800) 530 -7613 Page 268 of 483 q I\ 0` 1 , CJ lJ .0 N Honorable Quentin L. Kopp - p. 2 - #8974 '(a) 'Community care facility' means any ' facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children, and includes the following: . . ." For these purposes, subdivision (1) of Section 1569.2 defines "residential care facility for the elderly" as follows: "(1) 'Residential care facility for the elderly' means 'a housing arrangement chosen voluntarily by persons 60 years of age or over, or their authorized representative, where varying levels and intensities of care and supervision, protective supervision, personal care, or health - related services are provided, based upon their varying needs, as determined in order to be admitted and to remain in the facility. Persons under 60 years of.age with compatible needs, as determined by the department, may be allowed to be admitted or retained in a residential care facility for the elderly." . Finally, in this regard, subdivision (a) of Section 11834.02 defines "alcoholism or drug abuse recovery or treatment facility" as follows: "11834.02. (a) As used in this chapter, 'alcoholism or drug abuse recovery or treatment facility' or 'facility' means any premises, place, or building that provides 24 -hour residential nonmedical services to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse, and who need alcohol, drug, or alcohol and drug recovery treatment or detoxification services." By way of background, the so- called Fair Housing Act was contained in Title VIII of the federal Civil Rights Act of 1968, and was originally enacted by Public Law 90 -284 (see sec.. 801 and following of the Civil Rights Act of 1968, 42 U.S.C.A. Sec. 3601 LRI ,•'�`, Part Provided by Legislative Research Incorporated (800) 530 -7613 Page 269 of 483 q Ya Honorable Quentin L. Kopp - p. 3 - #8974 and following).2 Section 801 of the Civil Rights Act of 1968 (42 U.S.C.A. Sec. 3601) provides;. "It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." Prior to the Fair Housing Amendments Act of 1988, the Fair Housing Act prohibited various discriminatory practices concerning the rental and sale of housing, as well as financing and brokerage services, when based upon race, color, religion, sex, or national origin (see Secs. 804 -806, incl., of the Civil Rights Act of 1968, 42 U.S.C.A.'Secs. 3604 -3606, incl.). . In general,.the Fair Housing Amendments Act of 1988 (see Sec. 1, P.L..100 -430) extends these prohibitions tg discriminatory practices based upon handicap and familial status. Section 804 of the Civil Rights Act (42 U.S.C.A. Sec. 3604), provides, in part, as follows: "Sec. 3604. it shall be unlawful- - "(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable.or deny, a dwelling to any person because of race, color, religion., sex, familial status; or national origin. "(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or i_„;x the provision off, services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin. "(c) To make, print, or publish, or cause to. be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial 2 This law, pursuant to Section 4 of the Fair Housing Amendments Act of 1988 (P.L. 100 -430), is now formally known as the Fair Housing Act (see 42 U.S.C.A. Sec. 3600). ® s This opinion does not consider the constitutionality of the federal Fair Housing Amendments Act of 1988. LRI Part 2 Provided by Legislative Research Incorporated (800) 530 -7613 Page 270 of 483 a V -3 h Honorable Quentin L. Kopp - P. 4 - #8974 tats, or national origin, or an intention to make any such preference, limitation, or discrimination. race a(d) To represent to any person because of color, religion sex, handicap familial status, or national o, rigin that any Welling available for inspection, sale h is not dwelling is in fact so available�r rental when such 'r(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective haentry into the neighborhood of a person or persons nticular race; color, religion, sex familial t tus, or national origin; "(f) (1) � discriminate or tg o errs; �-- — t0 s e ntal, t unayailab� o n r deny, we 119119foap of -any buyer or renter b of a "(A) that buyer or renter; • reside (B) a person residing in or intending to in that dwelling after it is so sold, rented, or made -available; or "(C) any person as renter. sociated with that buyer or "(2) To discriminat terms, conditlgns or `� apainG* a� Person in the Of a dwelling, ' privileges of sale or rental facie;w g, or in the provision — _ in gonnection with — '� services or ecaus .gf a hancF such -dwelling, — —"—ap_ of -- NA) that person; or reside ($) a person residing in or intending to rented, ior that madedwelling available; after or it is so sold, "(C) any person associated with that person. discriminationpincludesof this subsection, "(A) ausal'to permit, at the expense of the handica pped person, reasonable modifications of existing preritises occupied or to.be occupied by Provided by Legislative Research Incorporated ' 2 (600) 530.7613 L Part 2 Page 27t of 483 n Oi'A 0 Honorable Quentin L. Kopp - p. 5 - #8974 such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tea= excepted; "(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling ..: . (Emphasis added.) Section 5 of the Fair Housing Amendments Act of 1988, amends Section 802 of the Civil Rights Act (42 U.S.C.A. Sec. 3602), and defines "handicap" as follows: "(h) Handicap' means, with respect to a person- - "(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, 00(2) a record of having such an impairment, or 11(3) being regarded as having such as impairment, but such term does not include current, illegal use of or addiction to a controlled substance as defined in section 802 of Title 21." For these purposes, persons with a "handicap" include recovering alcoholics and recovering drug addicts (City of Edmonds v. Washington State Bldg. Code council (9th Cir.), 18 F. 3d 802, 803; mot. granted, cert. granted, 130 L. Ed. 2d 332; U.S. V. Southern Management Corp. (4th Cir.), 955 F. 2d 914, 919), the elderly who have certain mental or physical disabilities (Potomac GrouP Home Corp. v. MOntaom- City, 823 F. Supp. 1285, 1295; U.S. v. City of Taylor. Mic . (E.D. Mich.'1992), 798 F. Supp. 442, 446), and persons who are HIV- positive (Baxter v. City of Belleville. Ill. (S.D. I11.), 720 F. Supp. 720, 729, hereafter Baxter). The term "familial status," is defined in subdivision ®(k) of Section 802 of the Civil Rights'Act (42 U.S.C.A. Sec. 3602) ' as follows: LRI Part 2 - Provided by Legislative Research Incorpor #ted (800) 830 -7613 Page 272 of 483 5 0 Honorable Quentin L. Kopp - p. 6 - #8974 "3602. "(k) 'Familial status' means one or more individuals (who have not attained the age of 18 years) being domiciled with- - "(1) a parent or another person having legal custody of such individual or individuals; or 't(2) the designee of such parent or other . person having such custody, with the written permission of such parent or other person. "The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years." The terms "dwelling" and "family" are defined in subdivisions (b) and (c) of Section 802 of the Civil Rights Act (42 U.S.C.A. Sec. 3602), as follows: "3602. "(b) 'Dwelling'.means any building, structure, or portion thereof which is occupied 'as, or designed or intended for occupancy as, a residence by one or more families, and'any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof. "(c) 'Family' includes a single individual. * * *n Existing case law has construed the term "dwelling" for' these purposes to include facilities providing residential care for neglected children. In United States V. Hughes Memorial Home (W.D. Va.), 396 F. Supp. 544, a boys' home operating pursuant to a private trust under which the home refused to permit black males to become residents was deemed to have engaged in racial discrimination in violation of the Fair Housing Act. In discussing the meaning of the term "dwelling," the court stated: LRI Part 2 Provided by Legislative Research Incorporated (800)' 530 -7613 Page 273 of 483 a 0 0 Honorable Quentin L. Kopp - P. 7 - #8974 " The Fair Housing Act of 1968 is a constitutional exercise of Congressional power under the Thirteenth Amendment to bar discrimination in housing. United States v. Hunter, 459 F. 2d 205, 214 (4th Cir. 1972), cart. denied 409 U.S. 934, 93. S. Ct. 235, 34 L. Ed. 24 189 (1972). The Act implements a policy to which Congress has accorded the highest national priority, and is to be construed liberally in accordance with that purpose. 42 U.S.C. Sec. 3601; Trafficante v. Mgtrgpolitan Life Insurance Co., 409 U.S. 205, 211 -212, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972); Mayers v. Ridle , 151 U.S. App. D.C. 45, 465 F. 2d 630 (1922,] (en banc),. Good faith is no defense to practices prohibited by the Act which have a. racially discriminatory effect. Williams v. Matthews, 499 F. 2d 819, 826 (8th Cir. 1974) cent. denied, 419.U.S. 1021, 95 S. Ct. 495, 42 L. Ed. 2d 294 (1974); nU ited States v. City of Black Jack, 508 F. 2d 1179, 1184 -1185 (8th Cir. 1974); see Griggs v. PtI&e Power CQ, 401 U.S.. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). "The defendant asserts that the Fair Housing Act does not apply. The Act makes it unlawful to make 'dwellings' unavailable because of race. The term 'dwelling' is defined by the Act as 'any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.' 42 U.S.C. Sec. 3602(b). 'Family' includes a single individual. 42 U.S.C. Sec. 3602(c). Whether the Home is within the scope of the prohibition in section 3604(a) thus turns on whether it is 'occupied as ... a residence.' "4. The term 'residence' is not specifically defined in the Act, and must be accorded its ordinary meaning. The applicable definition of the word in Webster's Third New International Dictionary is as follows: "a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit[.] LRI Part 2 Provided by Legislative Research Incorporated (800) 530.7613 Page 274 of 403 ak .I 0 Honorable Quentin L Kopp - p. 8 - 08974 "The record establishes that, as the very title of the institution implies, the Home is far more than a place of temporary sojourn to the children who live there, and that they are in fact, as the Home's officials refer to them, residents. The children go to school, outside the Home, Pollard deposition at 5, but live at the residential facilities provided by the Home. Executive Director Pollard described the Home in his deposition as a 'residential center' for dependent, neglected or needy children. id., at p. 5. The Court therefore holds that the Home is a dwelling within the meaning of section 3602(b). * *'! (United States v. Hughes Memorial Home, supra, at pp. 548 -549.) The Supreme Court has held that if a statute is silent or ambiguous with respect to a specific issue, the question for the Court is whether the agency's answer is based on a permissible construction of the statute. in this respect, the Court said ^... (w)e have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations (Chevron U.S.A._ v. National Res. Def. Council, 81 L. Ed. 2d 694, 704). Since the Fair Housing Act does not make clear whether a community care facility that provides residential care, a residential care facility for the elderly, or an alcohol and drug abuse recovery or treatment facility 'constitutes a dwelling under the act, we look to the construction by the administrative agency charged with enforcement of the act. we have been informed by officials of the United States Department of Housing and Urban Development that due to the inclusion by the Fair Housing Amendments Act of 1988 of discrimination based upon familial status and 'handicap, land use and zoning laws concerning a variety of types of facilities ranging from foster homes to nursing homes fall within the scope of the act's prohibitions. We think that this construction is reasonable. Thus, .in light of the current administrative construction, we think that land use and other laws that affect persons who would live in the facilities in question would come within the ambit of the Fair Housing Amendments Act of 1988. Therefore, to.summarize, the Fair Housing Amendments Act of 1988 makes it unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any renter or buyer because of a handicap or the familial status of any person, or to discriminate against any person in the terms, LRI Part 2' Provided by Legislative Research Incorporated (800) 530 -7613 Page 275 of 483 Uq N 1-1 Honorable Quentin L: Kopp - p. 9 - 18974 conditions,.or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with the dwelling, because of a handicap or the familial status of any person'. In addition, Section 3615 of Subchapter I of Chapter 45 Of Title 42 of the United States Code specifically provides that: "3615. Nothing in [Subchapter I) shall be construed to invalidate or limit any.law of a State or political subdivision of a state, or of'any other.jurisdictiori in which this Subchapter [Subchapter I) shall be effective, that grants, guarantees, or protects the same rights as are granted by this subchapter .[Subchapter I); but any law pt a State,'a political subdivision, or other such jurisdiction that purports to require or Permit anv actio that would be as discriminatory_ housing practice under this subchapter [subchapter it shall 12 that extent be invalid." (Emphasis added.) The Fair Housing Act has long been held to apply to governmental, as well as private actions. In United States v. City of Black Jack. Missouri (8th Cir.), 5Q8 F. 2d 1179; cert. den. 45 L. Ed. 2d 694, the court, addressing the issue of whether the Fair Housing Act applied to the actions of governmental entities, stated at pages 1183 -1184: ". To hold that local government is immune from the proscriptions of Title Viii . 'turns the old "state action" controversy on its head. It is simply too late in the day now to say that judicial control is impossible for the very reason that the state--is involved. Whatever one thinks of state action as a viable limiting principle on the constitutional command of equality, it should at least be clear that the most outrageous deprivations of equal rights are those perpetrated by the state itself. We are unwilling to believe that the legislators who voted for [Title VIII] intended to exempt the most serious offenses from its coverage.' Mavers V. Ridley, 151 U.S. App. D.C. 45, 465 F. 2d 630, 635 (1972) (en banc) (J. Skelly Wright, J., concurring).. n See also Citizens CoAmittee for Faraday Wood V. 1i 362 F. Supp. 651, 653 (S.D.N.Y. 1973). LRI Part-2 Pravided by Legislative Research Incorporated (800) 830 -7873 Page 276 of 483 .� 9114 0 Honorable Quentin L. Kopp - p. 10 - 18974 I. Handicap As,discussed above, S.B. 1690 would prohibit the licensure of a new community care facility, including a facility that cares for physically handicapped, mentally impaired, and incompetent persons, a residential care facility for the elderly, and an alcoholism or drug abuse recovery or treatment facility if granting the license would result in the facility being within 500 feet of any existing community care facility, residential care facility for the elderly, or alcoholism or drug abuse recovery or treatment facility. .Consistent with the above discussion of the scope of the term "handicap" for purposes of the. Fair Housing Amendments Act of 1988, we think some of the individuals at these facilities would clearly be persons with a "handicap" for purposes of the Fair Housing Amendments Act of 1988 (42 U.S.C.A. Sec. 3602). The supremacy clause of the.United States Constitution (cl. 2, Art. VI, U.S. Const.) provides that the United States Constitution and the laws of the United States are the law of the land. Congressional intent to preempt state law may be explicitly stated in statutory language or implicitly contained in a federal statute's structure and purpose; in the absence of express congressional command, state law is preempted if it actually conflicts with federal law or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the state to supplement-it (see Clone v. Liaaett & Group, Inc-, 120 L. Ed. 2d 407, 422 -423) Even if a state law is not preempted under this test with respect to the Fair. Housing Amendments Act of 1988, the law may still be invalid if it is discriminatory within the meaning of the Fair Housing Amendments Act of 1988 (FEIMilystyle of St. Paul v. Citv of SSt„ Paul (D. Minn.), 728 F. Supp. 1396, 1401; affId 923 F. 2d 91 (8th Cir. 1991); hereafter Familystyle). The courts have found this discrimination could be proved by showing that the enactment of the law was motivated by an intent to discriminate because of a handicap, or by showing the law has a discriminatory effect, even though it was enacted without discriminatory intent (Familvstyle, supra, at p. 1401; see also Baxter, supra, at p. 732). Therefore; a state law is invalid if it conflicts with the Fair Housing Amendments Act of 1988, or if its enactment has a discriminatory intent or effect. However, federal courts have differed with respect to the analysis used to determine whether a state law is invalid because it is in conflict with the Fair Housing Amendments of 1988 or has a discriminatory intent or effect (see Familystvle., supra, at p. 1400 in contrast to Geraldine Larkin v, State ,off, Michigan (E.D. Mich.), 883 F. Supp. 162, 178, hereafter Larki ; Horizon House V. Township of Ups LRI Part 2 Provided by Legislative Research Incorporpted (800) 530 -7613 Page 277 of 483 ,ID a`� 0 40 0 Honorable Quentin L. Kopp - p SouthamAton (E.D. Pa.), 804 F Horizon se). 11 - 08974 Stipp. 683, 695 -697; hereafter A. Familystvle .In Xamilystyla, the court upheld a Minnesota.state statute that prohibited the state from granting an initial license to a program that provides residential services for people with mental illness and retardation if the residential program would be within 1,320 feet of an.existing residential program. The court found that Section 3615 of Title 42 of the United.States Code does not constitute a preemption of the total field of law, because it invalidates only those state laws that conflict with federal law ( Familvytyle, supra, at' p. 1400,. n. 8). The court held that the statute did not conflict with the Fair Housing Amendments Act of.1988 and thus was not preempted, because the statute imposed regulations on residential proctrams for the mentally ill or retarded persons, and did not prohibit mentally ill persons from renting or buying a home within 1,320 feet of a residential facility (FamilvstYl.e, supra, at p. 1400; for similar holding see Plymouth Charter TP, v. Dent. 2F Soc. Serv. (Mich.), 501 N.W. 2d 186, 187 -189; hereafter Plymouth). The court acknowledged that language in House Resolution Report No. 711 (100th Cong., 2d Sess., reprinted in 1988 U.S. code Cong. & Admin. News 2172, 2185; hereafter House Report; cited in Larkin, supra, at p. 178) discussed below shows an intent of Congress to invalidate the type of state and local laws at issue in the case. However, the court concluded that the Minnesota statute was not enacted with discriminatory intent, because the court found after examining the legislative history that the intent of the statute was to deinstitutionalize services for the handicapped through the dispersal of facilities.for the mentally ill (Familvstyle, supra, at p. 1402). The court found that "a few individuals did voice concerns over safety and property devaluation" but that those few-comments could not stand as the true intent of the political bodies that passed the statute (Id., at p. 1403). The appellate court reviewing Familvstyle, disagreed with the appellant's argument that the dispersal requirements were invalid because they limited choices of the mentally handicapped and thus were in conflict with the language and purpose of the Fair Housing Amendments Act of.1988. The appellate court, instead, perceived the goals of "nondiscrimination and deinstitutionalization to be compatible" declaring that "Congress did not intend to abrogate a state's power to determine how facilities for the mentally ill must meet licensing standards" LRI Part 2 Provided by Legislative Research Incorporated (800) 550 -761$ Page 278 of 489 a4 ,kk Honorable Quentin L Kopp - P. 12 - #8974 (ZAMilVstVIe of St. Paul V. City of Sts Paul. Minn. (8th Cir.), 923 F. 2d 91, 93 -94). On the other hand, in a case in which a person was denied a license for an adult foster care home intended to care for handicapped individuals, the United States District Court for the Eastern District of Michigan was required to determine whether a Michigan statute that prevented the issuance of a temporary license if it would "'substantially contribute to an excessive concentration' of community residential facilities" was preempted by the Fair Housing Amendments Act of 1988 (see Lar i , supra). The court found that, notwithstanding the decisions in Familystylg and Plymouth,.supra, the regulation of residential facilities by the Michigan statute inherently regulated, and thereby discriminateel against handicapped individuals. .The court _ .- explained that the House Report outlined the types of local zoning regulations that the Fair Housing Amendments Act of 1988 was intended to prohibit and thus the Michigan statutory scheme conflicted with and was preempted by the act (Lar , supra, at pp. 178 and 179).. The House Report, supra, at page 2185, reveals the legislative intent of the. Fair Housing Amendments Act of 1988 with regard to discrimination against persons with handicaps and reads in part as follows: "While state and local governments have authority to protect safety and health, and to -regulate use of land, that authority has sometimes been used to restrict the ability of individuals with handicaps to live in communities. This has been accomplished by such means as the enactment or imposition of health, safety or land -use requirements on congregate living arrangements among non - related persons with disabilities. Since these requirements are not imposed on families and groups of similar size of other unrelated people, these requirements have the effect of discriminating against persons with disabilities. The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the application of special requirements through land -use regulation, restrictive covenants,' and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community. Another method of making housing unavailable to people with disabilities has been the application LRI Part 2 - Provided by Legislative Research Incorporated (1100) 530 -7613 Page 279 of 483 Honorable Quentin L. Kopp - p. 13 - P8974 or enforcement of otherwise neutral rules and regulations of health, safety and land -use in a manner which discriminates against people with disabilities. Such discrimination often results from false or over - protective assumptions about the needs of handicapped people, as well as unfounded fears of difficulties about the problems that their tenancies may pose. These and similar practices would be prohibited." We think that the finding in Familystv7e that the Minnesota statute was not in conflict with the Fair Housing Amendments Act of 1988 was largely based on the court's perception that even though the statute affected the housing of handicapped persons, the intent of the statute to deinstitutionalize services for the handicapped was consistent with federal philosophy and for the benefit of handicapped persons. In contrast, rejecting the conclusion reached in Familystyle, the court in Larkin found that there was no rational legal basis for a similar Michigan dispersal statute, thus it was in conflict with the Fair Housing Amendments Act of 1988 and preempted (Larkin, supra, at p. 175). Furthermore, in Horizon House, supra, the court held that a "distance" requirement ordinance for group homes for mentally retarded persons intended to prevent the "clustering" of'people with disabilities to promote their "integration" into the - community was not an adequate justification under the Federal Fair Housing Amendments of 1988, citing United States V. Starrett City Associates, 840 F. 2d 1096 (2d Cir.) in which the court struck down a racial quota which was designed to maintain racial integration in an apartment complex to avoid the phenomenon of "tipping" or "white flight "). The results in these cases indicate that the issues of preemption and intent are not always neatly separated for purposes of analysis. The courts have held that unfounded or stereotypical fear about the handicapped (Horizon House, supra, at pp. 695 -697; Baxter, supra, at'pp. 732 -733) is not a valid, basis for discriminating against the handicapped. However, courts have entertained evidence of the intent to protect members of the community from potential danger and to protect the residential character of a heighborhood, although credible evidence supporting this intent thus far has been generally absent or unpersuasive in the context of discrimination against the handicapped .(Ass'n. for Advmt, of the Ment. Hndcan. V. City Elizabeth (D.N.J.), 876 F. Supp. 614, 622 -624; see also Burstyn v. City of Miami Beach (S.D. Fla.), 663 F. Supp. 528, 534, in which the court held, for purposes of equal protection analysis, that the protection of retail trade, preservation of commercial districts, and encouraging tourism are legitimate governmental goals). LRI Past 2 Provided by Legislative Research Incorporated (800) 530 -7673 Page 280 of 483 aq.15 Honorable Quentin L. Kopp - p. 14 - 08974 In S.B. 1690, the restrictions would be imposed as a condition of licensure of community care facilities, not on the handicapped individuals that would be residing in the facilities. Thus, applying the reasoning in Familvstyle, a court could find that S.B. 1690 is not preempted because the handicapped are not directly prohibited from residing at the facilities and that finding would recognize the state's need to maintain a certain degree of authority over the facilities. However, in light of the specific language of S.B. 1690 to directly regulate facilities in which the handicapped live and the declaration of congressional intent provided in the House Report not to restrict the ability of individuals with handicaps to live in communities, including through the use of the "enforcement of otherwise neutral rules and regulations on health, safety and land -use in a manner which discriminates against people with disabilities," a court could follow Larkin, supra, and find that B.B. 1690 is preempted. S.B. 1690 would declare that it.is the policy of the state to prevent overconcentrations of the facilities in question that impair the "integrity" of residential neighborhoods (subd. (a), Secs. 1520.5, 1569.156, and 11834.28, S.S. 1690). However, it is not clear what the underlying rationale for the enactment of S.B. 1690 would be, without a complete legislative history delineating the purposes and intent of the measure. Thus, we think the court would not apply the reasoning in Familvstyle to this bill for purposes of concluding that the intent of SB. 1690 is to integrate persons in community care facilities, residential care facilities for the elderly, and alcoholism or drug abuse recovery or treatment facilities into the mainstream of society because on its face there is no clear legislative history to support this proposition. Furthermore, pursuant to the conclusion we draw, discussed above, with regard to the basis for the courts holding in Familvstyle, we do not think that the court would perceive that S.B. 1690 on its face is consistent with federal philosophy and for the benefit of handicapped persons. The only i evidence of the state's purpose in enacting S.B. 1690 is that.by its own terms it seeks to prevent overconcentration of facilities in which many handicapped persons reside because the overconcentration impairs the integrity of residential neighborhoods. We think that standing alone, there is no evidence that this purpose is consistent with the Fair Housing Amendments Act of 1988. We think a court, without the benefit of a clear (neighborhoods egislative history of S.B. 16490 to the contrary, would find that he government purpose to maintain the "integrity" of residential is subject to several interpretations such that it could be intended to achieve improper as well as legitimate goals. For example, if the declared- policy of S.B. 1690 is based on evidence that community residents feel that the residential LRI Part 2 Provided by Legislative Research Incorporated ($00) 530 -7613 Page 287 of 483 aq_)d Honorable Quentin L. Kopp - p. 15 - #8974 • integrity of their neighborhood is impaired whenever handicapped persons are residing and visible in high numbers in the community, the distance separation licensing requirement in S.B. 1690 would be invalid. Thus, we think a court considering the matter could determine that S.B. 1690 is not preempted by the Fair Housing Amendments Act of 1988 and that it does not have a discriminatory intent against the handicapped only to the extent that the court is able to discern from the language of S.B. 1690 and its legislative history a rationale for its distance separation licensing requirement that is not in conflict with the purposes of the Fair Housing Amendments Act of 1988. We presently find nothing in the language of the bill nor in its legislative history that 'would compel a court to reach such-a conclusion. I e3. Under Familystyle, moreover, even if a law is enacted without discriminatory intent, it may be invalid under the Fair Housing Amendments Act of 1988 if it has a discriminatory. - effect, in other words, if it actually or predictably results in discrimination (Fam lystvle, .supra, at p. 1402). S.B. 1690 would have the effect of limiting the housing choices of the handicapped, since licensure of a new, community care facility, residential care.facility for the elderly, or alcoholism or drug abuse recovery or treatment facility is prohibited if it would result in the facility being within 500 feet of any one of these types of facilities. The appellate court reviewing Familystyle held that the question is whether the legislation is rationally related to a legitimate governmental purpose (Familvstvle, supra, at P. 94). To the extent that a.court is able to discern from the language of S.B. 1690 and its legislative history that the distance separation licensing requirement is rationally related to a legitimate purpose and does not conflict with the purposes ofthe Fair Housing Amendments Act of 1988, we think the court could conclude that S.B. 1690 does not constitute unlawful discrimination against handicapped persons under the federal Fair Housing Amendments Act Of 1988. However, we presently find nothing in the bill or its legislative history that would compel such a conclusion. B. Baxter Compared to Familvstvle which involved state regulation, other courts have addressed similar issues with regard to discrimination against the handicapped for purposes of the Fair Housing Amendments Act of 1988 which involved local regulatory activity. These courts have essentially ignored the preemption issue, and concentrated on making a determination of whether there was discriminatory intent or discriminatory effect. The court in LRI ':- Part 2 Provided by Legislative Research Incorporated (800) 530 -7613 Page 282 of 483 X4.15 Honorable Quentin L. Kopp - P. 16 - #8974 Baxter found that the handicap of potential residents with HIV, a protected group under the Fair Housing Amendments Act of 1988, -in a residential facility, was in some part the basis for the denial by a city of a special use permit for the facility (Baxter, supra, at p. 732) and held that evidence adduced at a city hearing supported the claim that irrational fear of AIDS was at least a motivating factor in the refusal by the city to issue the special use permit thereby supporting 'a claim of discriminatory intent (Ibid.). The court in Baxter set out a four- pronged test for finding conduct that produced a discriminatory effect: the strength of the showing of discriminatory effect, the existence of some evidence of discriminatory intent, the interest of the defendant in taking the action, and whether - -the plaintiff sought to compel affirmative action or merely restrain the defendant (Id. at p. 732; also see Casa Marie, Inc. v. Superior Court of Puerto co (D. Puerto Rico), 752 F. Supp. 1152, 1168 - 1169). The court held that the actions of the.city adversely impacted handicapped persons more than nonhandicapped individuals and that the discrimination was strong because virtually all of the persons affected were members of a group protected by the Fair Housing Amendments Act of.1988 (Baxter, supra, at p. 732). in addition, • the court found discriminatory intent and found that.the interest of the city in zoning, particularly land use and public health and safety, was a pretext (id., at pp. 732 -733). Finally, the court found that the plaintiff was not seeking to compel the city to build public housing for.HIV- positive persons, but merely seeking to be allowed to use available housing provided exclusively'by the plaintiff as a residence for the handicapped (Id., at P. 733). S.B. 1690 would limit the housing choices of handicapped persons significantly, particularly since they are more likely than.nonhandicapped persons to require care and live in a community care facility that is required to be licensed. Pie think that a court applying Baxter could Conclude that the fact that a substantial number of the persons affected are handicapped is not the basis for the distance separation licensing requirements of S.B. 1690 and thus would not find discriminatory intent only to the extent the court finds no evidence of the intent to discriminate after examining the language of S.B. 1690 and its legislative history (Baxter, supra, at p. 732). Under the four -prong test in Baxter, we think a court would find under the first prong that S.S. 1690 does have a discriminatory effect because it would limit the housing choices of handicapped persons. in light of the fact that S.B. 1690 would prohibit the licensing of facilities that care for the handicapped if it would result in a facility being within 500 feet of any community care facility, including potentially numerous homes that R . LRI Part 2 Provided by Legislative Research Incorporpted (800) 530 -7613 Page 283 of 483 }� Honorable Quentin L. Kopp - p. 17 - 18974 provide foster care for children, the choices of handicapped persons would be significantly limited. As discussed above in the discussion of Familystyle, we think a court would not find discriminatory intent, the second prong of the Baxter test, only if there is evidence that the policy of the Legislature in S.B. 1690 to prevent the impairment of the residential "integrity" of .neighborhoods is not motivated by an intent to discriminate against the handicapped but by a nondiscriminatory intent. Under the third prong as discussed . above, we think a court would -find the interest of the state in enacting the legislation to prevent the impairment of the integrity of residential neighborhoods is a legitimate governmental interest only if the language of S.B. 1690 and its legislative history reflect that the interest is legitimate. Finally, under the fourth prong the relief sought against S.Bi -1690 would not likely entail compelling the government to take any affirmative action, but rather merely preclude the government from conditioning the licensure of a new community care facility, residential care facility for the elderly, or alcohol or drug abuse recovery or treatment facility upon being located outside 500 feet from any of these type facilities. As discussed above we presently find nothing in the bill nor its legislative history that Would compel a court to conclude that the intention underlying the bill is • nondiscriminatory nor that the interest of the state in making that discrimination is legitimate. II Familial Status S.B. 1690 Would prohibit licensure of a new community care facility, including a residential facility (para. (1), subd. (a), Sec. 1502) such as, a "foster family home" (para. (5), subd. (a), Sec. 1502); a "small family home" (para. (6), subd. (a), Sec. 1502), or a facility for abused or neglected children (subd. (a), Sec. 1502), if granting the license would result in the facility being within 500 feet of any existing community care facility, residential care facility for the elderly, or alcoholism or drug abuse recovery or treatment facility. As a related matter, a group home is defined in the regulations adopted by the State Department of Social Services pursuant to the California Community Care Facilities Act as "any facility of any capacity which provides 24 -hour nonmedical care. and supervision to children in a structured environment with.such services provided at least in part by staff employed by the licensee ".(22 Cal. Code Regs. 80001; emphasis added), and familial status applies to a group of unrelated minors, living with a parent or other person having legal custody of the minor, or "the designee" o£ the parent or other person (see subd. (k), Sec. 802, Civil Rights Act; 42 U.S.C.A. Sec. 3602 (k), as contained in Sec. LRI Part 2 Provided by Legislative Research Incorporstpd (800) 530 -7613 Page 284 of 483 21,11 Honorable Quentin L. Kopp - p. 18 - 18974 • 5, Fair Housing Amendments Act of 1988). Thus, the term familial status "is not limited to situations where minors aria living with their parents, and it includes situations where they are .living with other minors even when,in the custody of persons other than their parents. In Gorski v. Troy (7th Cir.), 929 F. 2d 1183, 1185 (hereafter Gorski), two persons applying to become licensed foster parents in the State of Illinois were denied permission by'their landlord to take one or two foster children into their home. The court held that persons who were licensed as foster parents are protected from discrimination based on familial status under the Fair Housing Act (Id., at p. 1187). The court stated that the state was the legal custodian of a foster child, that the state had the authority, pursuant -to state law, to place the child in licensed child care facilities, including foster homes, and the foster parents then-become the designee of the person with custody of the child (Id., at V. 1187). Similarly, in the case of minors who are dependents or wards of the court pursuant to Sections 300, 601, and 602 of the Welfare and Institutions Code, the state has custody of the . children and is authorized to place them in a number of different residential facilities, including group homes. Based on Gorski, persons living in a group home would meet the definition of familial status because there are children in the group home and the licensee of the group home would be considered the designee of the state, which has custody of the child. In Gorski, the court held that the plaintiffs had standing to sue because even though they were not yet licensed foster parents, they met the definition under,the Fair Housing Act of an aggrieved person as, in part, any person who "claims to have been injured by a discriminatory housing practice" (42 U.S.C. 3613(a)(1)(A); (Id., at p. 1188). "In amending the definition of 'aggrieved person,' Congress intended to extend broad standing principles to those seeking redress under the FHA" (Id., at p. 1188). Thus, a person whose application is denied pursuant to S.B. 1690, if enacted, would have standing to challenge the denial under the Fair Housing 9 The House Judiciary Report on the legislation that enacted the Fair Housing Act indicates that the amendments were primarily intended to prevent discrimination against families with children in obtaining housing, and that Congress did not contemplate the application to residential facilities housing children (House Judiciary Report No. 100 -711, Fair Housing Amendments Act-of 1988; pg. 19 (6/17/88)). However, because the court in Gors i found the language in the act to be clear, it did not consider the House Judiciary Report in construing the statute.. LRI Part 2 Provided by Legislative Research Incorporated (800) 830 -7873 Page 285 of 483 (q aq " '+ 'Honorable Quentin L. Kopp - p. 19 - #8974 i Amendments Act of 1988 because he or she would be a person who claims to have been injured by a discriminatory housing practice. Accordingly, we think the domiciliary arrangement of a residential facility caring for children; including a group home, foster family home, or small family.home meets the definition of familial status. We have found no case law involving the preemption issue in a challenge of discrimination based on familial status. However, the preemption issue was addressed in Familystyle and Plymouth based on discrimination because of a handicap under the Fair Housing Amendments Act of 1988 as discussed above. We think that those courts that disagreed with . the reasoning in Familystyle found that the language in the House Report bompelled the conclusion that regulations similar to the a separation distance licensing requirement in S.B.. 1690.are preempted for purposes of the handicapped. However, we are not aware of similar evidence of legislative intent with regard to discrimination because of familial status. Thus; absent any evidence of an intent to discriminate because of familial status, we think a court would apply the preemption analysis in Familystyle and conclude that the separation distance licensing requirement in S.B. 1690 is imposed as a condition to licensure to . regulate the facilities, not to restrict the children required to live in the facilities and therefore is not in conflict with, thus preempted by, the Fair Housing Amendments Act of 1988. i In a case involving .a claim under the Fair Housing Amendments Act of 1988 of discrimination based on familial status, the court held that a prima facie case of discrimination could be proved by a showing of either an intent to discriminate based on familial status or a discriminatory effect on persons due to their familial status, as defined under the act (Fair Housing Council of Orancre County v. Ayres (C.D. Cal.), 855 F. Supp. 315; hereafter Fair Housing Council). As the Fair Housinv Council court noted, there are no 9th circuit cases in the area of discrimination based on familial status under the Fair Housing Amendments Act of 1988, and some appellate courts in other circuits have applied a four -prong test including a showing of some discriminatory intent as well as effect, instead of either discriminatory intent or discriminatory impact (Fair Housing Council, supra, at 317; MetroDolita n Housing Development Corp. v. Village of Arlington Heights (7th Cir.), 558 F. 2d 1283, 1290, cert. den., 54 L. Ed. 2d 772; Baxter, supra, at p. 732). Since these other cases are persuasive, not controlling, and involve challenges of discrimination that are not based on familial status, we think a court considering the matter would follow the test articulated in E ing Council and require a showing of either discriminatory intent or impact. LRI Part 2 Provided by Legislative Research Incorporated (800) 830 -7613 Page 286 of 483 Oq -0 sV Honorable Quentin L. Kopp - p. 20 - #8974 in Fair Housing Council, the challenge was to an occupancy restriction imposed by an apartment complex. The court found that the plaintiffs had established a prima facie case of discriminatory effect be although the restriction was facially negtral because it treated adults and children similarly, and children did reside at the apartment complex, the restriction to two occupants per,apartment had a disparate impact on intact families. Under S.B. 1690, the denial of a license to a new community care facility if it would result in the facility'being within 500 feet of any existing community care facility, residential care facility for the elderly, or alcoholism or drug abuse recovery or treatment facility would result in a reduction in housing for persons, including children, in these residential settings. Since the provisions do not apply to children living in > a nonresidential facility setting; it would have a disparate impact on persons based on their status of being minors living with the operator of the home who is the person designated to care for them by the state or their parents, who,has custody over the . minors. Thus, we think that a court considering the matter would find that a prima facie case of disparate impact could be proved. once the prima facie case is established, the statute will be presumed invalid and this presumption can be rebutted only by a showing that the statute is the least restrictive means to accomplish a legitimate, nondiscriminatory state interest (Fair Housing council, supra, at p. 318). S.B. 1690 would prohibit the licensure of a new community care facility if it would result in. the facility being within 500 feet of an existing community care facility, residential care facility for the elderly, or alcohol and drug abuse recovery or treatment facility, in determining Whether the state's interest is nondiscriminatory, S.B. 1690 would vrovide that it is the policy of the state to prevent the, .impairment of the "integrity" of residential neighborhoods (subd. (a), Secs. 1520.5, 1569.156, and 11834.28, S.B. 1690). If there was evidence, however, that the state's interest was in preserving the property value of the neighborhoods as a means to prevent the impairment of the integrity of residential neighborhoods, we do not think the court would find this to be a legitimate state interest. On the other hand,. according to the reasoning in Familvatyle, supra, at.page 1402, if the state's interest is to prevent an over concentration of community care facilities in order Since discriminatory effect can clearly be shown here, we do not analyze whether discriminatory intent could be proved. Neither the Gorski case not the Fair Housing Council case applies this factor, however we think a court considering the matter would look to the same factors as are considered in cases involving claims of discrimination because of a handicap, as discussed below. LRI Part 2 Provided by Legislative Research Incorpor#ted (800) 530 -7613 Page 287 of 483 ? �, at Honorable Quentin L. Kopp - p. 21 - 18974 to promote the deinstitutionalization of the minors living in these facilities, the separation distance licensing requirement in S.B. 1690 is a reasonable restriction in order to accomplish the state's interest. Evidence of intent in this case is limited to language in S.B. 1690 that indicates that overconcentration impairs the "integrity" of residential neighborhoods. As discussed above, because this concern about the "integrity" of a residential neighborhood is subject to numerous interpretations which could include interests of the state that are improper and discriminatory as well as legitimate; we do not think that on the basis of the language of the bill nor tie conc 0 PRG:rcm ve state interest. a Very truly yours, Bion M: Gregory Legislative Counsel BY *fit Patricia R. Gates Deputy Legislative Counsel Provided by Legislative Research Incorporated (800)'530 -7673 to LRI Park 2 . Page 288 of 483 l �Llk 1q IV I EXHIBIT 2 THIS PAGE INTENTIONALLY LEFT BLANK V,aa RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING THE ADOPTION OF CODE AMENDMENT NO. 2007 -005 AMENDING TITLE 20 OF THE MUNICIPAL CODE TO REVISE DEFINITIONS, LAND USE CLASSIFICATIONS, AND REGULATIONS RELATING TO GROUP OCCUPANCIES, TO CERTAIN ASSEMBLY USES IN WEST NEWPORT AND BALBOA PENINSULA COMMERCIAL DISTRICTS, AND TO USE PERMITS AND AMORTIZATION PROVISIONS FOR ALL USES IN RESIDENTIAL DISTRICTS (PA 2007 -112) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES AND ORDERS AS FOLLOWS: WHEREAS, on May 30, 2007, the City Council initiated an amendment to Title 20 of the City of Newport Beach Municipal Code to revise definitions, land use classifications, and regulations relating to group occupancies and short-term lodgings; and WHEREAS, a public hearing was held on June 21, 2007 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. After consideration of testimony and documentation provided the Planning Commission continued the public hearing with directions for further action; and WHEREAS, the continued public hearing was held on August 23, 2007 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting; and WHEREAS, the Planning Commission finds as follows: 1. In 2006 the City of Newport Beach adopted a new General Plan and the voters adopted a new Land Use Plan. The General Plan includes a vision statement that provides a framework or vision for the City. The first vision is to Preserve Community Character and provides that "We have preserved our character as a beautiful, unique residential community with diverse upland and coastal neighborhoods. We value our colorful past, the high quality of life, and our community bonds. The successful balancing of the needs of residents, businesses and visitors has been accomplished with the recognition that Newport Beach is primarily a residential community." 1526 \02 \473976.2_8.17.2007 V1 City of Newport Beach Planning Commission Resolution No. _ Page 2 of 7 2. The City has received evidence of increasing numbers of group homes that do not house permanent residents and operate more like institutional and boarding housing uses than as Single Housekeeping Units. These uses are concentrated in residential zoning districts R -1.5, R -2, and MFR. Uses such as parolee /probationer homes, group residential uses, non - residential uses, and other uses are operating as businesses in residentially zoned areas of the City. These uses and the business operations engendered by these uses are changing the unique character and balance of Newport Beach's residential neighborhoods, violating the General Plan's vision that seeks to retain Newport Beach as primarily a residential community, and in many cases placing incompatible uses in residential neighborhoods, contrary to the policies in the City's Land Use Element (Policies LU 1.1, LU 5.1.1, and LU 6.2.7). 3. Land Use Element Policy 6.2.7 provides that the City shall regulate residential and day care facilities to the maximum extent allowed by federal and state law to minimize impacts on residential neighborhoods. 4. In conformance with privacy rights under the California Constitution, the City's Zoning Code does not limit the number of related or unrelated persons, whether or not disabled, who choose to live together as a single housekeeping unit, which is defined as a group of people who share common facilities and household activities and have one rental agreement. The City considers any single housekeeping unit to be a "family" for zoning purposes. 5. In the R -1.5, R -2, and MFR Districts near the beach, where group homes are clustered, most properties are narrow, not more than 30 feet wide, with buildings set back only three feet from the property line, resulting in neighboring windows less than six feet away from each other. Only one arterial roadway, Balboa Blvd., exists in the area. Other roads are only 30 feet wide, with alleys as narrow as 10 feet across. Because of these crowded conditions, and to implement the City's Land Use Element and to maintain the character of residential neighborhoods, the City does not permit group residential units, such as boarding houses, dormitories, fraternities, and sororities, to be located in residential zoning districts, because such group residential uses are frequently transient and institutional in nature and differ in character and create impacts on residential neighborhoods from single housekeeping units. 6. To give disabled persons an equal opportunity to use and enjoy a home in the City's residential zoning districts, and in recognition of the services that may be required by the disabled, the City does allow group residential uses serving the disabled to be located in residential districts, while prohibiting all other group residential uses. 1526\02\473976.28.17.2007 _ a� a City of Newport Beach Planning Commission Resolution No. Paae 3 of 7 7. The State of California requires that residential care facilities licensed to serve six or fewer persons must be treated as a single family home for all local zoning purposes, and the City does currently treat, and proposes to continue to treat, these facilities as single family homes. 8. The City has received evidence that, in several instances, two or more residential care facilities, which may each be licensed to serve six or fewer persons, or which may be unlicensed, may in fact be operating in duplexes and apartments in the same building or place or otherwise as integrated components of the same residential care facility and serving a total of seven or more persons, such as by providing housing in one facility and recovery, treatment, meals, or other services in another residential facility, or by designating one facility to provide recovery, treatment, meals, or other services for several residences. If these integral facilities are not in fact operating as residential care facilities serving six or fewer persons and are serving seven or more persons, they are not in compliance with the City's reasonable regulations applicable to residential care facilities serving seven or more persons and are operating as commercial facilities providing services to persons who are not residing in the dwelling unit, evading the intent of California laws allowing facilities serving six or fewer persons in one dwelling unit to be treated as single family homes; and the City desires appropriate zoning amendments to ensure that small licensed and unlicensed residential care facilities are in fact serving no more than six persons. 9. The City's existing Zoning Code permits unlicensed residential care facilities serving six or fewer disabled persons to be located in residential districts. Citizens have reported an increasing number of unlicensed alcohol and drug recovery facilities located in the City; at least 18 unlicensed facilities located in the City have stated that they provide recovery (sometimes called "clean and sober") services to recovering drug and alcohol users. However, because no state statutes define recovery or "clean and sober" homes, the actual nature of these facilities is not known. ADP has reported to the State Legislature that it receives on average 125 complaints a year regarding sober living homes, with many complaints indicating that unlicensed facilities are offering addiction treatment services without the required license. State law requires a license for any facility providing a service designed to promote treatment and maintain recovery from alcohol or drug problems and may include any one of the following: detoxification, group sessions, individual sessions, educational sessions, and /or alcoholism or drug abuse recovery or treatment planning (9 CCR Section 10501(5)). Many facilities appear to be advertising such services but do not have a license. 10. City residents in response to a questionnaire have expressed concerns regarding the impacts of recovery facilities on residential communities, including, but not limited to, impacts on traffic and parking, conversion of garages to other uses, more frequent trash collection, smoking in the vicinity, exposing residents to 1526 \02 \4739762_8.17.2007 ,, a4.a City of Newport Beach Planning Commission Resolution No. Page 4 of 7 secondhand smoke and creating litter from cigarette butts, and excessive noise, fighting, and loud offensive language. 11.The City desires to maintain zoning provisions benefiting disabled persons by allowing disabled persons to live in residential districts in group homes, while forbidding all other group homes in residential districts, but desires to ensure that the uses are consistent with the residential character of neighborhoods and are not detrimental to the public health and safety. The City further desires to ensure that unlicensed residential care facilities purporting to serve the disabled are operating in compliance with City, state, and federal laws and regulations, and are certified by an appropriate agency, if such certification is available. To achieve these purposes, all new group homes in residential neighborhoods must obtain a use permit. Further, larger group homes are limited to multifamily neighborhoods, whereas small group homes are also permitted in R -1.5 and R -2 neighborhoods. 12. To ensure that the City complies with federal and state law, the City desires to adopt standards and procedures for granting a reasonable accommodation to its zoning and land use policies where necessary to give disabled persons an equal opportunity to use and enjoy a home, where such an accommodation does not cause an undue financial or administrative burden or fundamentally alter the purpose of the City's adopted policies. 13. In accordance with its policy of giving disabled persons the opportunity to enjoy a home in the City, as of April, 2007, according to information available from the Department of Alcohol and Drug Prevention (ADP), the City contained 2.63 licensed alcohol and drug treatment beds per 1,000 City residents, the highest ratio in Orange County, compared to an Orange County average of 0.52 licensed beds per 1,000 City residents. It is the policy of the state that each city shall permit and encourage the development of sufficient numbers and types of alcoholism or drug abuse recovery or treatment facilities as are commensurate with local need. (California Health & Safety Code Section 11834.20.) Analysis by the City demonstrates that, based on the 2003 -2004 National Survey on Drug Use and Health, the City has approximately twice the licensed bed days needed on an annual basis. Consistent with the policy of the State, the local need for alcoholism and drug abuse recovery and treatment services has been met in Newport Beach. 14. The loss of residential characteristics of a neighborhood in which group homes serving the disabled cluster has an adverse effect on the welfare of the individuals receiving services from the facility and defeats the purpose of community -based recovery. The American Planning Association's Policy Guide on Community Residences, which supports community residences, states that community residences should be scattered throughout residential districts rather than being concentrated on any single block or in any single neighborhood. If several group homes locate next to one another, or are placed on the same block, the ability of the group homes to achieve normalization and community integration would be 1526\02\473976.28.17.2007 _ au a� City of Newport Beach Planning Commission Resolution No. Paqe 5 of 7 compromised. The existing social structure of a neighborhood can accommodate no more than one or two group homes on a single block. The Departments of Justice and Housing Urban Development have stated that a neighborhood composed largely of group homes could adversely affect individuals with disabilities and would be inconsistent with the objective of integrating persons with disabilities into the community. The California Research Bureau similarly found that facilities should be scattered throughout residential districts, and facilities so densely clustered as to recreate an institutional environment would defeat the purpose of community -based care. 15.The City's Zoning Code permits a variety of conditional uses in addition to group homes in residential neighborhoods. These include government offices, clubs and lodges, religious assembly, schools, nurseries, and bed and breakfast inns. The City's Zoning Code does not prevent overconcentration of these uses in residential neighborhoods. To preserve the character of the City's residential neighborhoods and to ensure that group homes are located in neighborhoods where normalization and community integration are possible, the City desires to adopt policies limiting the overconcentration of all conditional uses in residential neighborhoods when the City has adequate facilities of that type to meet the needs of Newport Beach's residents. The City also desires to adopt specific criteria for the approval of such uses relating to traffic, parking, hours of operation, etc. to ensure that they do not cause adverse effects on nearby residents. Existing uses not conforming to the provisions in the amended zoning ordinance shall be required to comply with the amended ordinance within approximately two years to ensure that the City's goals in adopting these provisions are met. 16. To further preserve residential neighborhoods, the City desires to limit short-term lodging permits to R -1.5, R -2, and MFR Districts, and similar SP and PC Districts. All residents of residential uses, including residential care facilities, must be persons who have agreed to reside in a facility for 31 days or more, unless the residence has obtained a short-term lodging permit and pays transient occupancy tax. 17. The California Department of Corrections has reported that approximately 70 percent of persons on parole will be returned to prison each year because they have either been convicted of new crimes or have violated the conditions of their parole. Residences housing two or more parolees may pose a danger to the safety of the community and adjacent residents, and the City does not intend to permit such residences. 18. Convalescent homes, hospitals, and SRO residential hotels are not compatible with residential areas, no such facilities are located in residential districts in the City, and the City does not desire to permit such facilities in residential districts. 1526\02\473976.28.17.2007 b aq'3 City of Newport Beach Planning Commission Resolution No. Paae 6 of 7 19. Services involving group assembly of seven or more persons, including clubs and lodges and such uses as youth and senior centers, particularly if they are operating in retail storefronts, are incompatible with the West Newport and Balboa Peninsula's commercial areas, which are intended to serve as pedestrian - oriented villages with a mixture of retail, visitor - serving, and marine - oriented commercial uses. 20. On February 13, 2007, the City Council adopted Resolution No. 2007 -10 initiating an amendment to Title 20 of the Newport Beach Municipal Code to revise land use classifications and definitions related to residential care facilities. 21. On April 24, 2007, the City Council adopted Resolution No. 2007 -8, imposing a moratorium on the establishment of new group residential uses and directed the Planning Department, in cooperation with the City Attorney, to analyze the extent of regulatory controls affecting group residential uses and required in residential districts. 22. On May 30, 2007, the City Council adopted Ordinance No. 2007 -10, extending the moratorium for a period of five months. 23. The code amendment is not is not subject to the California Environmental Quality Act (CEQA) because: A. The proposed code amendment will not result in a direct or reasonably foreseeable indirect physical change in the environment (Section 15060(c)(2) of the CEQA Guidelines). B. The proposed code amendment modifies the procedures for review of group residential facilities serving the disabled and located in residential areas and establishes standards for granting a reasonable accommodation, as required by the Fair Housing Act. The code amendment also establishes specific conditions related to the operation of small unlicensed group homes. The code amendment also limits land uses involving group assembly in some commercial districts. None of these restrictions change the physical limitations applicable to properties (such as height, setback, etc.) nor do they expand the uses permitted in any zoning district. Rather, they are designed to apply standards to certain uses to ensure that they will not cause significant physical impacts. While a request for a reasonable accommodation could conceivably involve a physical change to the environment, the location and type of requests that will be made are not reasonably foreseeable, and the ordinance provides that any such request that involves a physical change must be accompanied by an application for a discretionary permit if otherwise required, allowing the environmental effects of the request to be reviewed. In addition, the federal Fair Housing Act currently requires that the City consider requests for reasonable 1526 \02\473976.2_8.17.2007 x6,31 City of Newport Beach Planning Commission Resolution No. Page 7 of 7 accommodation, so that the addition of this chapter to the Zoning Code merely establishes procedures for the required review. C. The code amendment is covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines). NOW, THEREFORE, BE IT RESOLVED that based on the aforementioned findings, the Planning Commission hereby recommends that the City Council of the City of Newport Beach adopt Code Amendment No. 2007 -005 to Title 20 of the Newport Beach Municipal Code as provided in Exhibits A, B, C, D, and E. PASSED, APPROVED AND ADOPTED THIS 23rd DAY OF AUGUST 2007. AYES: NOES: BY: Robert Hawkins, Chairman BY: Bradley Hillgren, Secretary 1526 \02 \473976.2_8.17.2007 a1,3A �� 53 EXHIBIT 3 rl THIS PAGE INTENTIONALLY LEFT BLANK 3) EXHIBIT A Section 20.03.030 Definitions An area of land that is bounded on all sides by streets or by streets and a shoreline. Blockface: The properties abutting on one side of a street and lying between the two nearest intersecting or intercepting streets, or nearest intersecting or intercepting street and railroad right - of -way, unsubdivided land, water - course, or city boundary. Building: Any structure having a roof supported by columns or walls for the housing or enclosure of persons, animals, chattels, or property of any kind. Caliper: The thickness of trees as measured in inches, feet, etc. Trunk diameter for trees up to 4 inches shall be measured 6 inches above the soil line, and all trees over 4 inches in diameter will be measured 54 inches above the soil line. Canny: (See awning). Facilities for Food Preparation. An area where food may be prepared which includes, but is not limited to, any two or more of the following items, either individually or in combination: heating appliances such as stoves, hot plates, microwave ovens, convection ovens and /or toaster ovens, refrigeration appliances, sinks including the plumbing thereto with running water whether with or without a disposal and may include a bathroom sink, cabinetry or shelving used for the storage of pots, pans, dishes, glasses, eating utensils and/or food items. Fair Housing Laws: The Federal Fair Housing Act, the Americans with Disabilities Act. and California's Fair Employment and Housing Act, as each Act may be amended from time to time. d each Act's imnlementing_reeulations. 1526 \02 \469683.4_8.9.2007 Jam` . - • - - .rii�e�7t. .ems . Rr UUM Canny: (See awning). Facilities for Food Preparation. An area where food may be prepared which includes, but is not limited to, any two or more of the following items, either individually or in combination: heating appliances such as stoves, hot plates, microwave ovens, convection ovens and /or toaster ovens, refrigeration appliances, sinks including the plumbing thereto with running water whether with or without a disposal and may include a bathroom sink, cabinetry or shelving used for the storage of pots, pans, dishes, glasses, eating utensils and/or food items. Fair Housing Laws: The Federal Fair Housing Act, the Americans with Disabilities Act. and California's Fair Employment and Housing Act, as each Act may be amended from time to time. d each Act's imnlementing_reeulations. 1526 \02 \469683.4_8.9.2007 Jam` Floor, Finished: The surface of a floor after the final installation or application of floor coverings or other surfacing materials. Illumination, Indirect: Illumination by means only of light cast upon an opaque surface from a concealed source. Individual with a Disability As more specifically defined under the fair housing laws_ a verso who has a physical or mental impairment that limits one or more maior life activities_ a nerson who is regarded as having that type of impairment or a pe son who has a record of that tune of impairment not including_current, illegal use of a controlled substance. Integral Facilities. Two or more Residential Care Facilities (Small Licensed. Small Unlicensed. or General), as defined 'nction20.05.030. which may or may not be on contiguous pazcels of land, that aze under the control and management of the c me owner, operator, management company- or licensee, including affiliates of such entities, and are integral components of the provide recovem treatment. meals or other services for several residences: or by assigning staff to serve more than one facility located on the came site or within the same building. As defined by State law, all alcohol or drug abuse recovery or treatment services within any one place or of the number of licenses actually held. Kitchen: Any room or portion of a room designed, intended or used for the cooking or preparation of food. Nonconforming Structure: A structure that was lawfully erected, but which does not conform with the property development regulations prescribed in the regulations for the district in which the structure is located by reason of adoption or amendment of this code or by reason of annexation of territory to the City. A building or structure shall not be considered to have been "lawfully erected" and is an illegal structure if it was constructed without reauired permits. including but not limited to Permits reauired by any federal_ state, or local government agency. Nonconforming Use: A use of a structure or land that was lawfully established and maintained, but which does not conform with the use regulations or required conditions for the district in which it is located by reason of adoption or amendment of this code or by reason of annexation of territory to the City. A nonconforming use includes a use that was lawfully established and maintained but is conditionally permitted in the district and has not obtained a use permit. A use shall not be considered to have been "lawfullyy established and maintained" if it was e or operated without required Hermits and licenses, including but not limited to permits an licenses reauired by any federal. state, or local government. `A 1526 \024169683.4_8.9.2007 33 Shopping Center: A grouping of retail business and service uses on a single site with common parking facilities. Single Housekeeping Unit: "Single The functional equivalent of a traditional family, whose members are an interactive group of persons jointly occupying a single dwelling unit, u, dor ne Mof "14 4 g~"°° Of Or 1 . °"t °' agfeeRieat including the joint use of and responsibility for common areas, and sharing household activities and responsibilities such as meals, chores, °.'a expeases. FeF p.,..,.. ses of the n A and o , distriGtg ° cis household maintenance, an d expenses and where if the unit is rented all adult residents are parties to one written lease or rental agreement with joint responsibility for payment of rent. Single Ownership: Holding record title, possession under a contract to purchase, or possession under a lease, by a person, firm corporation, or partnership, individually, jointly, in common, or in any other manner where the property is or will be under unitary or unified control. aj!g! (See Building Site). Site: A parcel or adioinine parcels under single ownershiD or single conlrol. considered a unit IMI Slope: An inclined ground surface, the inclination of which is expressed as a ratio of horizontal distance to vertical distance. 3 1526 \02 \469683.4_8.9.2007 ✓q Section 20.05.030 Residential Use Classifications . - -- - . . . .u• �. .� i. B. Day Care, Limited. Non- residential, non- medical care and supervision of fourteen or fewer persons on a less than twenty - four hour basis. This classification includes, but is not limited to, nursery schools, preschools, and day care centers for children (large and small family day care homes) and adults. Large Family Child Care Homes. Day care facilities located in single - family residences where an occupant of the residence provides care and supervision for nine to fourteen children. Children under the age of 10 years who reside in the home count as children served by the day care facility. 2. Small Family Child Care Homes. Day care facilities located in single - family residences where an occupant of the residence provides care and supervision for eight or fewer children. Children under the age of 10 years who reside in the home count as children served by the day care facility. IBC. Group Residential. n,. .. vo :ae +: r+ n ShepeEl c..:.,.. qtiarter-s ied by more than E person. ... iieh laek separate kiteh,.n al;.7 h., +h «,...,,. F ..:l:+:o� f « .,..h « unit. as well as -hared living •aners Shares) living quarters. occupied by two or more persons not living together as a Single Notisekeepi g a 4a44 sinele housekeeping unit. This classification includes, without limitation, boarding— hewse- or rooming houses, dormitories, fraternities, sororities, and private residential clubs, but excludes residential care facilities_(general, small licensed, and small unlicensed) and residential hotels (see Single -Room Occupancy (SRO) Residential Hotels, Section 20.05.050(EE)(4)). t✓p. Multifamily Residential. Three or more dwelling units on a site. This classification includes mobile home and factory -built housing. .. n .. M 11 M r, I M V TV . M R M 1.1,.i -1 .I I . . . . ... .�-� -. .. a �. t- . -• 4 1526 \02 \469683 - 4_8.9.2007 63 option, in exchange for monetary or non - monetary consideration given and/or paid by the n rolee - probationer and/or any public or private entity or person on behalf of the parolee — probationer. A parolee — probationer includes: A) any individual who has been convicted of a federal crime_ sentenced to a United States prison. and received conditional and revocable release in the community under the unervision of a federal parole officer: B) any individual who has served a term of imprisonment in a $Me prison and who is serving a period of supervised community custody, as defined in Penal Code Section 3000, and is under the jurisdiction of the California Department of Corrections.-Parole and Community Services Division: C) an adult or juvenile sentenced to a term in the California Youth Authoritv and who has received conditional and revocable release in the community under the supervision of a You Authority Parole Officer: or D) any individual who has been convicted of a felony. sentenced to any correctional facility, including County correctional facilities. and is under the jurisdiction of any federal state or County parole oLprobation officer. For the purooses of this paragraph. "felony" means a felonv as defined by any California or United Statea statute. F. Residential Care Facilities, General. Any site or building_ or groups of sites or buildings_ including integral facilities (as defined in Section 20.03.030), licensed or unlicensed in which seven or more individuals with a disability reside who are not living together as a single housekeeping unit and who have agreed to reside in facility staff, is an individual with a disability. G Residential Care Facilities Small Licensed State licensed facilities that provide care, services. or tr a m n t in a community residential setting for six or fewer adults children.-ox--adults-and children and which are required by State law to be regulations applicable to single housekeeping units This classification does not include State - licensed facilities that provide care. services, or treatment jn a community residential setting for six or fewer adults children, or adults and children if such facilities onerate as nart of integral facilities, as defined in Sectio 0 03 030 when such integral facilities serve seven or more adults. children or adults and children (in such circumstances. the integral facilities are classified as residential care facilities, Rene ra1.l 5 1526 \02\469683.4_8.9.2007 �w perseas4 tien. assistanee essential F susiaiaiag 4he aetivifies of daily livilig, H Residential Care Facilities Small Unlicensed Any site or building or groups o sites or buildings, including integral facilities (as defined in Section 20.03.039 1. which is not licensed by the State of California and is not required by law to be licensed by the State in which six or fewer individuals with a disability reside n are not living together as a single housekeeping unit and who have agreed to reside in the facility for 31 days or more, and in which every person residing in the facility, excluding persons emploved as facility staff. is an individual with a 91. Single - Family Residential. "Single - Family Residential' means a building or buildings containing one dwelling unit located on a single lot for occupancy by one family. This classification includes mobile homes and factory built housing. F�. Two - Family Residential. "Two - Family Residential' means a building or buildings containing two dwelling units located on a single lot, each unit limited to occupancy by a single family. This classification includes mobile homes and factory built housing. K. Vacation Home Rental. A residence or dwelling unit where the complete residential unit including bedroom(s), kitchen and bath(s), is rented or lrascd-ULa o person, or group of persons —living as a single housekeeping unit. under a single written or oral rental or lease agreement for a period of a0-days-or less. L 1526 \02 \469683.4_8.9.2007 3� Section 20.05.030 Public Semi - Public Land Use Classifications 7 1526 \02 \469683.4_8.9.2007 3� Section 20.10.020 (Residential Districts) Section 20.10.020 Residential Districts: Land Use Regulations The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in residential districts, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in residential districts. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "PD/U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P/UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit When located on the site of a conditional use. The l _a+.._.. Lz o designate use elassifieations . Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. Residential Districts: Land Use Regulations P = Permitted UP = Use permit PD/U = Use permit issued by the Planning Director FEP - c..a.....a Wcomption n..... it L = Limited (see Additioml Use Reeulations) — = Not Permitted RESIDENTIAL DAY CARE, LIMITED -LARGE FAMILY CHILD CARE HOMES -SMALL FAMILY CHILD CARE HOMES GROUP RESIDENTIAL MULTI- FAMILY RESIDENTIAL PAROLEE/PROBATIONER HOME RESIDENTIAL CARE FACILITIES. GENERAL RESIDENTIAL CARE.. &9-69 FACILITIES. SMALL ICS RESIDENTIAL CARE FACILITIES. SMALL UNLICENSED SINGLE FAMILY RESIDENTIAL TWO - FAMILY RESIDENTIAL VACATION HOME RENTAL 1526 \02\169683.4_8.9.2007 R -A R -1 R -1.5 R -2 MFR Additional (A), (B), (C) IMP (Ol.(Rl (N) PD/U PD/U PD/U PD/U PD/U IM4P "P "P "P "P P (D) P P P P P LZ LI LM M P P P P P (D),- (E), (M) P P P (D) P P P -�D n Residential Districts: Land Use Regulations P = Permitted UP = Use permit PD/U = Use pemtit issued by the Planning Director L = Limited (see Additional Use Regulation) - -- = Not Permitted PUBLIC AND SEMI - PUBLIC CEMETERIES CLUBS AND LODGES CONVALESCENT FAGIW DAY CARE, GENERAL GOVERNMENT OFFICES PARK & RECREATION FACILITIES PUBLIC SAFETY FACILITIES RELIGIOUS ASSEMBLY SCHOOLS, PUBLIC AND PRIVATE UTILITIES, MAJOR UTILITIES, MINOR COMMERCIAL USES HORTICULTURE, LIMITED NURSERIES VEHICLE/EQUIPMENT SALES AND SERVICES - COMMERCIAL PARKING FACILITY VISITOR ACCOMMODATIONS -BED & BREAKFAST INNS SRO 9SID9 r�. TIAL 1404_6[,5 AGRICULTURAL AND EXTRACTIVE USES ANIMAL HUSBANDRY CROP PRODUCTION 1526 \02 \469683.4_8.9.2007 R -A R -1 R -1.5 R -2 MFR Additional (A), (B), (CL , al P--- --- – PD/U --- --- – - -- L -3 L -3 L -3 L -3 – - -- UP UP (F) — — — — UP (A), (B), (C)M PD/U --- --- --- (G) P--- --- --- --- 9 t4b (A), (B), (C) =Ql al - -- L -2 L -2 L -2 L -2 — 411 UP. UP UP – UP UP UP UP (N) - -- UP UP UP UP — JAR UR UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP UP P P P P P (A), (B), (CL , al P--- --- – PD/U --- --- – - -- L -3 L -3 L -3 L -3 – - -- UP UP (F) — — — — UP (A), (B), (C)M PD/U --- --- --- (G) P--- --- --- --- 9 t4b Residential Districts: Land Use Regulations P = Permitted UP = Use permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) -- = Not Permitted R -A R -1 R -1.5 R -2 MFR Additional Regulations MINING AND PROCESSING L-4 L4 L-4 L -4 L-4 (H) ACCESSORY USES ACCESSORY STRUCTURES AND USES (A), (B), (C),0 P/UP P/UP P/UP P/UP P/UP (I) TEMPORARY USES (A), (B), (C)- CIRCUSES AND CARNIVALS P P P P P (K) COMMERCIAL FILMING, LIMITED P P P P P (K) PERSONAL PROPERTY SALES P P P P P (L) HELIPORTS, TEMPORARY L -5 - -- - -- -- L -5 (J) REAL ESTATE OFFICES, TEMPORARY L -5 L -5 L -5 L -5 L -5 (B) Residential Districts: Additional Land Use Regulations L -1 20 acres minimum. L -2 Limited to yacht clubs, use permit required. L -3 Public or no fee private lots for automobiles may be permitted in any residential district adjacent to any commercial or industrial district subject to the securing of a use permit in each case. L-4 See Chapter 20.81: Oil Wells. L -5 Subject to the approval of the Planning Director. (A) See Section 20.60.025: Relocatable Buildings. (B) See Section 20.60.015: Temporary Structures and Uses. (C) See Section 20.60.050: Outdoor Lighting. 10 1526 \02 \469683.4_8.9.2007 �C1 1 Manieipal OadePermittcd subject to the securing of-. A Business License pursuant to Chapter 5.04 of the Municipal Code. 2. A Transient Occupancy Registration Certificate pursuant to Section 3.16.060 of the Municipal Code. A Short Term Lodging Permit pursuant to Chapter 5.95 of the Municipal Code. (E) See Chapter 20.85: Accessory Dwelling Units. (F) See Section 20.60.110: Bed and Breakfast Inns. (G) Keeping of Animals in the R -A District. The following regulations shall apply to the keeping of animals in the R -A District: Large Animals. The keeping of large animals (as defined in Section 20.030.030) shall be subject to the following regulations: a. Horses. One horse may be kept for each 10,000 square feet of lot area, up to a maximum of 3 horses, provided the horse or horses are kept for recreational purposes only. The keeping of 4 or more horses for recreational uses shall require a use permit issued by the Planning Director. The keeping of horses for commercial purposes shall require a use permit issued by the Planning Commission. b. Other Large Animals. Other large animals, including goats, sheep, pigs and cows, may be kept on lots of 15,000 square feet or more and the number shall not exceed 2 adult animals of any one species. C. Total Number Permitted. The total number of large animals shall not exceed 6. Offspring are exempt until such time as they are weaned. 2. Domestic and Exotic Animals. The number of domestic and exotic animals (as defined in Section 20.03.030) shall not exceed 6. Offspring are exempt up to the age of 3 months. The keeping of 4 or more dogs over the age of three 3 months shall require a kennel license pursuant to Section 7.04.090 of the Municipal Code. The keeping of wild animals shall require a permit pursuant to Chapter 7.08 of the Municipal Code. Small Animals. The number of small animals, other than domestic and exotic animals (as defined in Section 20.03.030), shall not exceed 6. Offspring are exempt up to the age of 3 months. 11 1526 \02\169683.4_8.9.2007 4. Control. a. Domestic Animals. No such animals, except for cats, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure or otherwise under the control of the owner of the property. b. Other Animals. No animal, other than domestic animals, shall be permitted to run at large, but shall be confined, at all times within a suitable enclosure. (H) See Chapter 20.81: Oil Wells. (I) See Section 20.60.100: Home Occupations in Residential Districts. (J) See Section 20.60.055: Heliports and Helistops (K) Special event permit required, see Chapter 5.10 of the Municipal Code. (L) See Section 20.60.120: Personal Property Sales in Residential Districts. (M) See Section 20.60.125: Design Standards for Mobile Homes on Individual Lots. (N) See Section 20.60.130: Day Care Facilities for Children. (0): integral facilities, as defined in Section 20.03.030, serving seven or more adults. are classified as residential c re facilities general. Residential care facilities general and residential care facilities small unlicensed would normally be Prohibited in all residcatial zones as a gro m re iden ial use, but to facilitate housing for persons wit disabilities, residential care facilities, general, may be permitted with a use permit in the MFR zone and residential care facilities small unlicensed may be permitted with a use permit in the R -1.5. R -2. and MFR zones. (P): No residential use may offer or provide services tp==D_ersons not residing on the site_ unless he City has approved a use permit allowing such use, or in compliance with Section 20.60.100: Home Occupations in Residential Districts. (Ol: Persons with disabilities may request a reasonable accommodation from the Provisions of he zoning ordinances under Chapter 20.98: Reasonable Accommodations. (Rl: Allust obtain business licenses if r a aired by Chapter 5.04 of the Municipal Code. 12 1526 \02\469683.4_8.9.2007 q3 Section 20.35.030 (Planned Community Districts) 20.35.030 PC District: Land Use Regulations A. Existina Uses. Land uses existing at the time of establishment of a PC District shall be permitted to continue as a nonconforming use, pursuant to Chapter 20.62: Nonconforming Structures and Uses. Existing land uses shall either be incorporated as part of the development plan or shall terminate in accordance with a specific abatement schedule submitted and approved as part of the development plan. Existing land uses which are prohibited by any provisions of this code shall be terminated prior to final approval of the development plan. B. New Uses. No use, other than a use existing at the time of establishment of a PC District, shall be permitted in a PC District except in accord with a valid PC development plan. Any permitted or conditionally permitted use authorized by this code and consistent with the General Plan land use designation or designations for land within the PC District may be included in an approved PC development plan. E- � n xcentions: 1. The Planning Director may approve temporary uses and structures pursuant to Section 20.60.015: Temporary Structures and Uses. 2. Residential Carc Facilities, Small Licensed, shall be permitted-if residential uses are otherwise permitted by the PC development elan Section 20.41.050 (Newport Shores) 20.41.050 Residential Development: Land Use Regulations The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in the Newport Shores Specific Plan District residential development areas, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in the Newport Shores Specific Plan District residential development areas. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "PD/U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P/UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. 13 1526 \02 \469683.4_8.9.2007 , r t� Residential Development: Land Use Regulations P = Permitted UP = Use permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) -•• = Not Permitted RESIDENTIAL DAY CARE, LIMITED -LARGE FAMILY CHILD CARE HOMES -SMALL FAMILY CHILD CARE HOMES RO P F. ID NTIA . MULTI - FAMILY RESIDENTIAL PAROLEE /PROBATIONER HOME RESIDENTIAL CARF 6IMEB FACILITIES. SMALL LICENSED RESIDENTIAL CARE FACILITIES. SMALL UNLICENSED SINGLE FAMILY RESIDENTIAL TWO - FAMILY RESIDENTIAL VACATION HOME RENTAL PUBLICAND SEMI - PUBLIC CLUBS AND LODGES UTILITIES, MINOR ACCESSORY USES ACCESSORY STRUCTURES AND USES TEMPORARY USES PERSONAL PROPERTY SALES REAL ESTATE OFFICES, TEMPORARY Residential Development: Additional Land Use Regulations Residential Additional (A), (B), (C).( 64) PD/U b-3P (A), (B), (C)JK). UP P (A), (B), (C). kW P/UP (F) (A), (B), (C)—LL) P (G) L -2 L -1 Use permit required for multi - family residential uses containing three or more dwelling units. The Planning Commission before approving a use permit for any development containing three or more dwelling units shall find: 1. That the development will not be detrimental to or out of character with the surrounding development. 14 1526 \02 \469683.4_8.92007 P i(l IT (1) P 4)).-(E) P (13) P (D) (A), (B), (C)JK). UP P (A), (B), (C). kW P/UP (F) (A), (B), (C)—LL) P (G) L -2 L -1 Use permit required for multi - family residential uses containing three or more dwelling units. The Planning Commission before approving a use permit for any development containing three or more dwelling units shall find: 1. That the development will not be detrimental to or out of character with the surrounding development. 14 1526 \02 \469683.4_8.92007 2. That the development does not exceed the density, height, and floor area limits established in this section. 3. That in addition to the basic outdoor living space requirement of ten percent of the buildable area, there will be additional outdoor living space. L -2 Subject to the approval of the Planning Director. (A) See Section 20.60.025: Relocatable Buildings. (B) See Section 20.60.015.: Temporary Structures and Uses. (C) See Section 20.60.050: Outdoor Lighting. (D) AH3 dweKiiig unit athermise permitted by this eede moused for shOA ;e.fffl !E)Elgi g piirpeses as defined in Chapter 5.95 of the Municipal Cad j ed subject to the securing of: A Business License pursuant to Chapter 5.04 of the Municipal Code. A Transient Occupancy Registration Certificate pursuant to Section 3.16.060 of the Municipal Code. A Short Term Lodging Permit pursuant to Chapter 5.95 of the Municipal Code. (E) See Chapter 20.85: Accessory Dwelling Units. (F) See Section 20.60.100: Home Occupations in Residential Districts. (G) See Section 20.60.120: Personal Property Sales in Residential Districts. (H) See Section 20.60.130: Day Care Facilities for Children. (I Integral facilities, as defined in Section 20.03.030, serving seven or more adults, are classified as residential care facilities general Residential care facilities general, disabilities residential care facilities general and residential care facilities, small unlicensed, may be nermitted with -a use hermit. l No-residential use may offer or i2rgyide services to persons not residing on the site, unless the City has pnroved a use permit allowing such use, or in comnliance with SeQtim 10.60.1007 Home Occupations in Residential Districts. 15 1526 \02 \469683.4_8.9.2007 0 (K) Persons with disabilities may request a reasonable accommodation from the provisions of e zoning ordinances under Chapter 20.98: Reasonable Accommodations. ... . . • r.. I . r U _� .. .. Section 20.41.070 (Newport Shores) 20.41.070 Commercial Development: Land Use Regulations The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in commercial development areas, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in commercial development areas. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations' which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters VD/U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P/UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations' following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. Commercial Development: Land Use Regulations P = Permitted UP = Use Permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) ••. = Not Permitted Commercial Additional Regulations PUBLICAND SEMI- PUBLIC (A), (B), (C) CLUBS AND LODGES 4RZ; (K) CULTURAL INSTITUTIONS P (K) DAY CARE, GENERAL UP RELIGIOUS ASSEMBLY L -1 UTILITIES, MINOR P COMMERCIAL USES (A), (B), (C) ANIMAL SALES AND SERVICES - ANIMAL BOARDING - -- - ANIMAL GROOMING PD/U - ANIMAL HOSPITALS UP - ANIMAL RETAIL SALES PD/U 16 1526 \021469683.4_8.91007 41 Commercial Development: Land Use Regulations P = Permitted UP = Use Permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) —• = Not Permitted Commercial Additional ARTISTS' STUDIOS P (G) BANKS /SAVINGS AND LOANS P -WITH DRIVE- UP/DRIVE THROUGH SERVICE UP BUILDING MATERIALS AND SERVICES P CATERING SERVICES P COMMERCIAL RECREATION AND ENTERTAINMENT UP (G), (K) EATING AND DRINKING ESTABLISHMENTS UP -FULL SERVICE, HIGH TURNOVER UP (D), (G), (K) -FULL SERVICE, LOW TURNOVER UP (D), (G), (K) -FULL SERVICE, SMALL SCALE PD/U (D), (G), (K) -TAKE -OUT SERVICE UP (D), (G), (K) -TAKE -OUT SERVICE, LIMITED PD/U (D), (G), (K) - ACCESSORY P (D), (G), (K) -BARS AND COCKTAIL LOUNGES UP (D), (G), (K) FOOD AND BEVERAGE SALES P (K) MARINE SALES AND SERVICES -BOAT RENTAL, AND SALES UP - ENTERTAINMENT AND EXCURSION SERVICES L -3 OFFICES, BUSINESS AND PROFESSIONAL PL4 PERSONAL IMPROVEMENT SERVICES PD/U (G) PERSONAL SERVICES P - MASSAGE ESTABLISHMENTS UP (E) POSTAL SERVICES P PRINTING AND DUPLICATING SERVICES P RETAIL SALES P TRAVEL SERVICES P VEHICLE/EQUIPMENT SALES AND SERVICES - SERVICE STATIONS UP (F), (K) VISITOR ACCOMMODATIONS -BED AND BREAKFAST INNS PD/U - HOTELS, MOTELS AND TIME - SHARES UP (H) 17 1526 \02 \469683.4_8.9.2007 q 6 L Commercial Development: Land Use Regulations P = Permitted UP = Use Permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) - -- = Not Permitted Commercial Additional Regulations ACCESSORY USES (A), (B), (C) ACCESSORY STRUCTURES AND USES P/UP TEMPORARY USES (A), (B), (C) CHRISTMAS TREE/PUMPKIN SALES L -2 (B) OUTDOOR STORAGE <& DISPLAY, TEMPORARY P (J) REAL ESTATE OFFICES, TEMPORARY P (B) L -1 Limited to facilities occupying less then 5,000 square feet; use permit required. L -2 Subject to the approval of the Planning Director. L -3 Permitted, provided operations have first secured a marine activities permit issued by the Harbor Resources Director (see Chapter 17.10 of the Municipal Code). 1526 \02 \469683.4_8.9.2007 Section 20.43.050 (Cannery Village /McFadden Square - Commercial) B. The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in Cannery Village/McFadden Square Specific Plan District, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in Cannery Village/McFadden Square Specific Plan District. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "PD/U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P/UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. Cannery Village/McFadden Square Specific Plan District: Commercial Land Use Regulations P = Permitted UP = Use permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Reaulations) -- Not Permitted SR RMC RSC Additional Regulations RESIDENTIAL (A), (B), (C), (D), (1)- (0)- M SINGLE FAMILY RESIDENTIAL MULTI - FAMILY RESIDENTIAL •71f•T�7L'73.7;7:]IllCi � :._ •7li[� TWO-FAMILY 114WIN p] 2101111 IM 11M.1 Ilia W."JIMN 11 RM V K 1 1111 Mko RESIDENTIAL PUBLICAND SEMI - PUBLIC CLUBS AND LODGES CULTURAL INSTITUTIONS 1526 \02\169683.4_8.9.2007 L -I L -1 L -1 L -1 L -1 L -1 L =10 L=IO L�Q9 L-1 Ll LA LM L 1� L=am " LM L -I L -I L -1 THEE M MIKEN1 (A). (B), (C). (I). 1P-_ 1 j UP L-5 UP (M) 19 56 Cannery Village/McFadden Square Specific Plan District: Commercial Land Use Regulations P = Permitted UP = Use Permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Re ulatims) -- = Not Permitted SR RMC RSC Additional DAY CARE, GENERAL - -- - -- UP GOVERNMENT OFFICES - -- UP UP MARINAS - -- P - -- (E) RELIGIOUS ASSEMBLY — - -- UP UTILITIES, MINOR P P P COMMERCIAL USES (A), (B), (C), (I), Ol- (R1 ANIMAL SALES AND SERVICES - ANIMAL GROOMING - -- UP UP - -- P - ANIMAL HOSPITALS - -- UP UP - ENTERTAINMENT AND EXCURSION SERVICES - ANIMAL RETAIL SALES - -- UP UP (J) ARTISTS' STUDIOS P - -- - -- L -2 L4 BANKS /SAVINGS AND LOANS P L -7 P CATERING SERVICES P P P COMMERCIAL RECREATION AND ENTERTAINMENT - -- UP UP (J), (M) EATING AND DRINKING ESTABLISHMENTS UP UP UP -FULL SERVICE, HIGH TURNOVER UP UP UP (F), (J), (M) -FULL SERVICE, LOW TURNOVER UP UP UP (F), (J), (M) -FULL SERVICE, SMALL SCALE PD/U PD/U PD/U (F), (J), (M) -TAKE -OUT SERVICE UP UP UP (F), (J), (M) - TAKE -OUT SERVICE, LIMITED PD/U PD/U PD/U (F), (J), (M) - ACCESSORY P P P (F), (J), (M) -BARS AND COCKTAIL LOUNGES UP UP UP (M) FOOD AND BEVERAGE SALES - -- - -- P (M) MARINE SALES AND SERVICES -BOAT RENTAL AND SALES - -- P - -- (E), (I) -BOAT STORAGE - -- P - -- (E), (I) -BOAT YARDS P - -- (E), (I) - ENTERTAINMENT AND EXCURSION SERVICES L -9 L -9 L -9 (E), (I) - MARINE SERVICE STATION - -- UP - -- (E) - RETAIL MARINE SALES — P - -- OFFICES, BUSINESS AND PROFESSIONAL L -2 L4 L -2 tul 1526 \02 \469683.4_8.9.2007 51 Cannery Village/McFadden Square Specific Plan District: Commercial Land Use Regulations P = Permitted UP = Use permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Use Regulations) —• Not Permitted INDUSTRIAL INDUSTRY, CUSTOM INDUSTRY, LIMITED INDUSTRY, MARINE- RELATED ACCESSORY USES ACCESSORY STRUCTURES AND USES TEMPORARY USES ANIMAL SHOWS CHRISTMAS TREE/PUMPKIN SALES CIRCUSES AND CARNIVALS COMMERCIAL FILMING, LIMITED FAIRS AND FESTIVALS HELIPORTS, TEMPORARY OUTDOOR STORAGE & DISPLAY, TEMPORARY REAL ESTATE OFFICES, TEMPORARY RECREATION AND ENTERTAINMENT EVENTS TRADE FAIRS (A), (B), (C), (1). W --- L -7 SR RMC RSC Additional L -8 --- UP UP (E) Regulations PERSONAL IMPROVEMENT SERVICES UP L -5 UP (I) PERSONAL SERVICES - -- L -7 P (G) -DRY CLEANERS - -- — UP P - LIMITED P L -7 P P -SELF SERVICE LAUNDRIES -- - -- UP RETAIL SALES L -3 P P TRAVEL SERVICES P L -6 P VISITOR ACCOMMODATIONS -BED AND BREAKFAST INNS PD/U PD/U PD/U - HOTELS, MOTELS AND TIME- SHARES UP UP UP (K) INDUSTRIAL INDUSTRY, CUSTOM INDUSTRY, LIMITED INDUSTRY, MARINE- RELATED ACCESSORY USES ACCESSORY STRUCTURES AND USES TEMPORARY USES ANIMAL SHOWS CHRISTMAS TREE/PUMPKIN SALES CIRCUSES AND CARNIVALS COMMERCIAL FILMING, LIMITED FAIRS AND FESTIVALS HELIPORTS, TEMPORARY OUTDOOR STORAGE & DISPLAY, TEMPORARY REAL ESTATE OFFICES, TEMPORARY RECREATION AND ENTERTAINMENT EVENTS TRADE FAIRS (A), (B), (C), (1). W --- L -7 - -- P --- L -7 - -- L -8 --- UP UP (E) P/UP P/UP P/UP P P P L -8 L -8 L -8 P P P P P P P P P L-8 L -8 L -8 P --- P L -8 L -8 L -8 P P P P P P Cannery Village/McFadden Square Specific Plan District: 1526\02A69683.48.9.2007 (A), (B), (Q) M (A), (B), (C)AR) (H) (B) (H) (H) (H) (L) (I) (B) (14) 21 sa Additional Commercial Land Use Regulations L -1 Limited to above the first floor, where the first floor is occupied by a permitted use or use permitted with a use permit. L -2 Business and professional offices not providing services to the general public or not ancillary to an otherwise permitted use, such as corporate offices, shall be permitted only above the first floor services involving the assembly or meetings of 7 or more persons are L -3 Limited to businesses retailing in goods generally oriented to the casual pedestrian shopper, including antiques, books, clothing, hand crafted items, hobby materials, jewelry, stationary, and works of art. All other uses are subject to the approval of the Planning Director for compatibility with the objectives of this district. L -4 Marine- related facilities permitted as an incentive use; other facilities in this use classification permitted when in conjunction with an incentive use under the provisions of Section 20.60.080: Marine Incentive Uses services involving the assembly or meetings of 7 or more persons are prohibited. L -5 Marine- related facilities permitted with a use permit as an incentive use; other facilities in this use classification permitted with a use permit when in conjunction with an incentive use under the provisions of Section 20.60.080: Marine Incentive Uses. L -6 Permitted when in conjunction with an incentive use under the provisions of Section 20.60.080: Marine Incentive Uses. L -7 Permitted with a use permit when in conjunction with an incentive use under the provisions of Section 20.60.080: Marine Incentive Uses. L -8 Subject to the approval of the Planning Director. L -9 Permitted, provided operations have first secured a marine activities permit issued by the Harbor Resources Director (see Chapter 17.10 of the Municipal Code). L -10 Limited to above the first floor where the first floor is occupied by a permitted use or use permitted with a use permit: use permit required. (A) See Section 20.60.025: Relocatable Buildings. (B) See Section 20.60.015: Temporary Structures and Uses. (C) See Section 20.60.050: Outdoor Lighting. 22 1526 \02 \469683.4_8.9.2007 53 (D) In areas designated for commercial or retail uses and subject to a variable floor area ratio, residential uses are permitted on the second floor or above only. No residential uses shall be permitted in the commercial area subject to a fixed floor area ratio, specifically the shopping center located immediately southwesterly of the intersection of Newport Boulevard and 32nd Street on Parcels 1, 2, and 3 of Record of Survey 35 -25 filed with the Orange County Recorder. (E) See Section 20.60.070: Waterfront Development Regulations and Section 20.60.080: Marine Incentive Uses. (F) See Chapter 20.72: Eating and Drinking Establishments. (G) Independent massage establishments not permitted (See Chapter 20.87: Massage Establishments). (H) Special event permit required, see Chapter 5.10 of the Municipal Code. (I) See Section 20.60.105: Outdoor Storage & Display. (I) See Section 20.60.085: Uses Requiring City Manager Approval. (K) See Chapter 20.84: Time Share Developments. (L) See Section 20.60.055: Heliports and Helistops. (M) See Chapter 20.89: Alcoholic Beverage Outlets. Permitted subject to the securing of 1 A Business License Pilrsuant to Chapt r 5.04 of the Municipal Code 2. A Transient Occupancy Registration Certificate pursuant to Sectio_n_3l6. 060 of the Municipal Code. 3. A Short Term Lodging Permit pursuant to Chapter 5.95 of th M mjcjpal Cod (0): Integral facilities as defined in Section 20.03.030. serving seven or more adults are classified as residential care facilities general Residential care facilities general d residential care facilities, small unlicensed. would normally be prohibited in all residential zones as a group residential use. but to -facilitate housing_ for persons with disabilities, residential care facilities, general. and residential care facilities, small mlicensed. may be permitted with a u e permit. (P): No residential use may offeror provide services to persons not residing on the site unless the City has approved a use permit allowing such use. or in compliance with Section 2 .60 100• Home Occupations in Residential District 23 1526 \02 \469683.4_8.9.2007 5q (0)• Persons with disabilities may request a reasonable accommodation from the provisions of the zonine ordinances under Chapter 20.98: Reasonable Accommodations. (R): All uses must obtain business licenses e if required by Chapter 5.04 of the Municipal Code. 24 1526 \02 \469683.4_8.9.2007 65 Section 20.43.060 (Cannery Village/McFadden Square - Residential) 20.43.060 a Residential Land Use Regulations Land Use Designations. The following residential land use designations are established: SP -6 (R -1) District. 2. SP -6 (R -2) District. 3. SP -6 (MFR) District. These designations preserve the existing residential districts within the Cannery Village/McFadden Square Specific Plan District, and maintain the development standards that have guided the orderly development of these districts. The designations, locations and boundaries of these uses are delineated upon the map entitled "Cannery Village/McFadden Square Specific Plan District, Land Use Plan Map ", which map and all information and notations thereon are made a part of this section by reference. B. In the following schedule, the letter 'P" designates use classifications permitted in the Cannery Village/McFadden Square Specific Plan District residential areas. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "P/UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. Letters in parentheses in the "Additional Regulations' column refer to "Additional Use Regulations' following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. Cannery Village/McFadden Square Specific Plan District: Residential Land Use Regulations R -1 R -2 MFR Additional Regulations RESIDENTIAL (A), (B), (C), {Gl. (Hl_ fll DAY CARE, LIMITED (D) -LARGE FAMILY CHILD CARE HOMES PD/U PON PON -SMALL FAMILY CHILD CARE HOMES "P "I! "R GROUP RESIDENTIAL MULTI - FAMILY RESIDENTIAL — P 25 1526 \02 \469683.4_8.9.2007 S(0 Cannery Village/McFadden Square Specific Plan District: Residential Land Use Regulations Q. I *'IZOBATIONER HOME r'FSID—ENTIAL CARE, QENERAL SINGLE FAMILY RESIDENTIAL RESIDENTIAL VACATLONROVE VENIAL COMMERCIAL VEHICLE/EQUIPMENT SALES AND SERVICES - COMMERCIAL PARKING FACILITY ACCESSORY USES ACCESSORY STRUCTURES AND USES R -1 R -2 MFR Additional UP UP UP P/UP P/UP P/UP Cannery Village/McFadden Square Specific Plan District: Additional Residential Land Use Regulations L -1 Permitted by right. (A) See Section 20.60.025: Relocatable Buildings. (B) See Section 20.60.015: Temporary Structures and Uses. (C) See Section 20.60.050: Outdoor Lighting. (D) See Section 20.60.130: Day Care Facilities for Children. E) Permitted subject to the securing of: 11 1111111111111 IIIIIIIIIIIIIIIIIIIgIIII 1111111111111111111 Ii It ME (A), (B), (C),M (A), (B), (C)a 2. A Transient Occupancy Registration Certificate pursuant to Section 3.16.060 of the Municipal Code. sTe• -.n •• i No NUUMM IMMa - oillln • .. 26 1526 \02 \469683.4_8.9.2007 5� E P E LU 1E M P P P - P - = P 11 (E) UP UP UP P/UP P/UP P/UP Cannery Village/McFadden Square Specific Plan District: Additional Residential Land Use Regulations L -1 Permitted by right. (A) See Section 20.60.025: Relocatable Buildings. (B) See Section 20.60.015: Temporary Structures and Uses. (C) See Section 20.60.050: Outdoor Lighting. (D) See Section 20.60.130: Day Care Facilities for Children. E) Permitted subject to the securing of: 11 1111111111111 IIIIIIIIIIIIIIIIIIIgIIII 1111111111111111111 Ii It ME (A), (B), (C),M (A), (B), (C)a 2. A Transient Occupancy Registration Certificate pursuant to Section 3.16.060 of the Municipal Code. sTe• -.n •• i No NUUMM IMMa - oillln • .. 26 1526 \02 \469683.4_8.9.2007 5� (F): Integral facilities, as defined in Section 20.03.030_ serving seven or more adults. are classified as residential care facilities general Residential care facilities, general, and residential care facilities, small unlicensed, would normally be prohibited in all residential zones as a group residential use but to facilitate housing for persons with residential care facilities, general, may be permitted with a use MFR zone, and residential care facilities, small unlicensed, may be permitted with a use permit in the R -2 and MFR zones. (G)7 No residential use may offer or provide services to persons not residing on the site, uale the City has approved a use permit allowing such use, or in compliance with Section 20.60.100: Home Occupations in Residential Districts. (Hl: Persons with disabilities may request a reasonable accommodation from the provisions of the zoning ordinancca uudrr hap er 20. 8: Reasonable Accommodations (I): All uses must obtain business licenses if required by Chanter 5.04 of the Municipal Code. 27 1526 \02 \469683.4_8.9.2007 �)q Section 20.44.035 (Santa Ana Heights — REQ District) B. Principal Uses Permitted. The following principal uses are permitted. a. Single family detached dwellings or single family mobile homes (one per building site). b. CaFimuf4t-y&es=ident=id care facilities serving 12 O. r°•"°` rffsefi small licensed. C. Parks, playgrounds, and athletic fields (noncommercial). d. Riding and hiking trails. e Small family child care homes (See Section 20.60.130: Day Care Facilities of Children). 2. The following principal uses are permitted subject to the approval of a use permit by the Planning Director per Chapter 20.91: a. Communication transmitting, reception, or relay facilities. b. Public /private utility buildings and structures. C. Large family child care homes (See Section 20.60.130: Day Care Facilities of Children). The following principal uses are permitted subject to the approval of a use permit by the Planning Commission per Chapter 20.91: a. Fire and police stations. b. Churches, temples, and other places of worship. C. Educational institutions. d. Libraries. e. Any other use which the Planning Commission finds consistent with the purpose and intent of this district. . _. . .. Section 20.44.040 (Santa Ana Heights - RSF District) B. Principal Uses Permitted. The following principal uses are permitted: a. Single - family detached dwellings or single family mobile homes (one per building site); 1526 \02 \469683.4_8.9.2007 5q b. Residential care facilitiess°-. _ng 43E or '_ , small licensed. C. Parks, playgrounds, and athletic fields (noncommercial); d. Riding and hiking trails. e Small family child care homes (See ection 20.60,130: Day Care Facilities of Children). 2. The following principal uses are permitted subject to the approval of a use permit by the Planning Director per Chapter 20.91: a. Communication transmitting, reception, or relay facilities; b. Public /private utility buildings and structures; C. Large family child care homes (see Section 20.60.130 (Day Care Facilities for Children)). 3. The following principal uses are permitted subject to the approval of a use permit by the Planning Commission per Chapter 20.91: a. Fire and police stations; b. Churches, temples, and other places of worship; C. Any other use which the Planning Commission finds consistent with the purpose and intent of this district. Section 20.45.030 (Central Balboa) B. The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in Central Balboa Specific Plan District, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in Central Balboa. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "PD/U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "P/UP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading. 29 1526 \02 \469683.4_8.9.2007 Central Balboa: Land Use Regulations P = Permitted UP = Use permit PD(U = Use permit issued by the Planning Director L = Limited (see Additional Land Use Regulations) - -- = Not Permitted 30 1526 \02 \469683.4_8.9.2007 b RSC RP R -2 MFR GEIF QS Additional Regulations RESIDENTIAL (A), (B), (C), (M)- M DAY CARE, LIMITED (Q) -LARGE FAMILY CHILD HOMES - -- - -- PD/U PD/U - -- - -- -SMALL FAMILY CHILD CARE HOMES GROUP - -- - -- L-1 4P �'-18P - -- - -- RESIDENTAL. MULTI- FAMILY RESIDENTIAL - -- L -I - -- - -- - -- - -- - -- P - -- - -- - -- - -- PAROLEE/PROBATIONER HOME___ RESIDENTIAL CARE FACILITIES. GENERAL L -11 _ _ UP —_ _ L51 RESIDENTIAL CARE.'' ^�. i.-r-or1T °^ L -1 P P P - -- - -- ISM FACILITIES, SMALL LICENSED RESIDENTIAL CARE FACILITIES, SMALL UNLICENSED L-11 UE WE UE SINGLE FAMILY RESIDENTIAL L -I P P P - -- L -2 TWO - FAMILY RESIDENTIAL L -I P P P - -- - -- VACATION HOME RENTAL LL_I P P R PUBLICAND SEMI - PUBLIC (A), (B), (C), (M)- fU1-!V1 CLUBS AND LODGES F -- L-3-- L -3 L -3 L4 -- (0) CONVALESCENT FACILITIES UP UP - -- - -- - -- - -- (D) CULTURAL INSTITUTIONS - -- - -- - -- - -- L4 - -- (0) DAY CARE, GENERAL UP - -- - -- - -- - -- - -- (D), (Q) GOVERNMENT OFFICES P - -- - -- - -- L4 - -- HELIPORTS UP UP UP UP L4 UP (E) HOSPITALS - -- - L4 - -- MARINAS P - - UP (F) PARK AND RECREATION FACILITIES P L -3 L -3 L -3 - -- P PUBLIC SAFETY FACILITIES UP - - L4 - -- RELIGIOUS ASSEMBLY L -5 - - L -4 - -- SCHOOLS, PUBLIC AND PRIVATE - -- - -- - -- - -- L -4 - -- UTILITIES, MAJOR UP UP UP UP L -4 UP 30 1526 \02 \469683.4_8.9.2007 b Central Balboa: Land Use Regulations P = Permitted UP = Use permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional land Use Regulations) — = Not Permitted 31 1526 \02 \469683.4_8.9.2007 �a RSC RP R -2 MFR GEIF OS Additional Regulations UTILITIES, MINOR P P P P P P (A), (B), (C), COMMERCIAL USES (M). DI M ANIMAL SALES AND SERVICES - -- - ANIMAL GROOMING PD/U - -- - -- - -- - -- - -- - ANIMAL HOSPITALS UP - -- - -- - -- -- - ANIMAL RETAIL SALES PD/U - -- - -- - -- -- ARTISTS' STUDIOS P P - -- - -- - -- - -- (D), (G) BANKS /SAVINGS AND LOANS P - -- - -- - -- - -- - -- CATERING SERVICES P UP - -- - -- - -- - -- (D) COMMERCIAL FILMING UP - -- - -- - -- - -- - -- (G) COMMERCIAL RECREATION AND UP - -- - -- - -- - -- L -6 (G), (0) ENTERTAINMENT EATING AND DRINKING ESTABLISHMENTS -FULL SERVICE, HIGH TURNOVER UP - -- - -- - -- -- (G), (H), (I), (0) -FULL SERVICE, LOW TURNOVER UP - -- - -- - -- -- (G), (H), (I), (0) -FULL SERVICE, SMALL SCALE PD/U - -- - -- - -- -- — (G), (H), (I), (0) -TAKE -OUT SERVICE UP - -- - -- - -- - -- - -- (G), (H), (I), (0) - TAKE -OUT SERVICE, LIMITED PD/U - -- - -- - -- - -- - -- (G), (H), (I), (0) - ACCESSORY P - -- - -- - -- P -- (G), (H), (I), (0) -BARS AND COCKTAIL LOUNGES UP - -- - -- - -- -- (G), (H), (I), (0) FOOD AND BEVERAGE SALES P - -- - -- - -- - -- - -- (0) FUNERAL AND INTERNMENT SERVICES UP - -- - -- - -- - -- - -- MAINTENANCE AND REPAIR SERVICES P P - -- - -- - -- - -- (D), (M) MARINE SALES AND SERVICES -BOAT RENTAL, AND SALES UP - -- - -- - -- - -- - -- (F), (M) - ENTERTAINMENT AND EXCURSION L4-4-JQ - -- - -- - -- - -- - -- (F) SERVICES - MARINE SERVICE STATION PD/U - -- - -- - -- - -- - -- (F) - RETAIL MARINE SALES P - -- - -- - -- - -- - -- NURSERIES P - -- - -- - -- - -- - -- OFFICES, BUSINESS AND PROCESSIONAL AL 12 A"-) - -- - -- - -- - -- (D) PAWN SHOPS P - -- - -- - -- -- (G) PERSONAL IMPROVEMENT SERVICES PD/U UP - -- - -- - -- - -- (D), (G) 31 1526 \02 \469683.4_8.9.2007 �a Central Balboa, Land Use Regulations P = Permitted UP = Use permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Land Use Regulations) -- = Not Permitted ACCESSORY USES ACCESSORY STRUCTURES AND USES i��l5T7iT7t3 a1AY91 ANIMAL SHOWS CHRISTMAS TREE/PUMPKIN SALES CIRCUSES AND CARNIVALS COMMERCIAL FILMING, LIMITED FAIRS AND FESTIVALS PERSONAL PROPERTY SALES OUTDOOR STORAGE, TEMPORARY REAL ESTATE OFFICES, TEMPORARY RECREATION <& ENTERTAINMENT EVENTS (A), (B), (C). m P/UP P/UP P/UP P/UP P/UP - -- (L) P- RSC RP R -2 MFR GEIF OS Additional - -- - -- - -- P- Regulations PERSONAL SERVICES P P - -- - -- - -- - (D), (14) -DRY CLEANERS P - -- - - -DRY CLEANERS (COLLECTION ONLY) P - - -- - -- - - FORTUNE TELLING P P - -- - -- - (D) -SELF SERVICE LAUNDRIES UP - -- - -- - -- - - POSTAL SERVICES P P - -- - -- - -- - (D) PRINTING AND DUPLICATING SERVICES P P - -- - -- - (D) RETAIL SALES P - -- - -- - -- - - SECOND HAND APPLIANCES /CLOTHING PD/U - -- - -- - -- - (G) TRAVEL SERVICES P P - -- - -- - -- - (D) VEHICLE/EQUIPMENT SALES AND SERVICES - AUTOMOBILE RENTALS L -7 - -- - -- - -- - - COMMERCIAL PARKING FACILITY PD/U L -8 L -8 L -8 L -4 - VISITOR ACCOMMODATIONS -BED AND BREAKFAST INNS PD/U UP UP UP - - - HOTELS, MOTELS AND TIME - SHARES UP - -- -- - (N) -SRO RESIDENTIAL HOTELS UP - -- - -- UP - ACCESSORY USES ACCESSORY STRUCTURES AND USES i��l5T7iT7t3 a1AY91 ANIMAL SHOWS CHRISTMAS TREE/PUMPKIN SALES CIRCUSES AND CARNIVALS COMMERCIAL FILMING, LIMITED FAIRS AND FESTIVALS PERSONAL PROPERTY SALES OUTDOOR STORAGE, TEMPORARY REAL ESTATE OFFICES, TEMPORARY RECREATION <& ENTERTAINMENT EVENTS (A), (B), (C). m P/UP P/UP P/UP P/UP P/UP - -- (L) P- -- - -- - L-9 - -- - -- - -- P- -- - -- - -- P- -- - -- - -- P- - -- - -- P P P P- - -- - -- L-9 L -9 L -9 L -9 P - -- - (A), (B), (C): m P P (K) - (B) P P (K) P P (K) P P (K) (P) (M) P P (K) 32 1526\02\469683.48.9.2007 - b3 Central Balboa: Land Use Regulations P = Permitted UP = Use permit PD/U = Use permit issued by the Planning Director L = Limited (see Additional Land Use Regulations) -- = Not Permitted RSC RP R -2 MFR GEIF OS Additional Regulations TRADE FAIRS P - -- - -- - -- P P (K) Central Balboa Specific Plan: Additional Land Use Regulations L -1 See Section 20.45.035 (B). L -2 Permitted as a security guard or caretakers residence. L -3 Limited to facilities developed as part of a residential development. L -4 In GEIF and OS districts, approval of a use permit in accordance with the provisions of Chapter 20.91 for the establishment of any new use permitted by this section, or any expansion or changes in the operational characteristics of an existing use within this zoning district, unless said use is owned and or operated by a governmental agency that is exempted from the provisions of this section by constitutional or statutory law, and is acting in its governmental capacity. L -5 Limited to facilities occupying less then 5,000 square feet; use permit required. L -6 Permitted with a use permit as part of a park or recreational facility. L -7 Offices only, no vehicles stored on premises. L -8 Permitted only when adjacent to a commercial district. L -9 Subject to the approval of the Planning Director. L -10 n°TM it4ed y right 1 11 Permitted, provided operations have first secured a marine activities permit issued by the Harbor Resources Director (see Chapter 17.10 of the Municipal Code). Limited to above the first floor, where the first floor is occul2ied by .-at t-t use or permitted t a use permit; L -12 Services involving the assembly or meetings of 7 or more persons are prohibited. (A) See Section 20.60.025: Relocatable Buildings. 33 1526 \02 \469683.4_8.9.2007 64 (B) See Section 20.60.015: Temporary Structures and Uses. (C) See Section 20.60.050: Outdoor Lighting. (D) Commercial uses shall be permitted in the SP -8 (RP) District subject to the following provisions: 1. Commercial uses are permitted on the ground floor only and on the front 50 percent of the lot. 2. The commercial portion shall be limited to a floor area ratio of 0.25. 3. The total gross floor area for all structures on any site shall not exceed 2.00. 4. Off - street parking for commercial uses shall be as specified in Section 20.45.050 (F). (E) See Section 20.60.055: Heliports and Helistops. (F) See Section 20.60.070: Waterfront Development Regulations. (G) See Section 20.60.085: Uses Requiring City Manager Approval. (H) See Chapter 20.82: Eating and Drinking Establishments. (I) In addition to the findings established in Chapter 20.82, the Planning Director or Planning Commission, as the case may be, shall make the following findings in order to approve a drive -in, take -out or small -scale eating and drinking establishment: 1. That the operator of the food service use will be responsible for the clean-up of all on -site and off -site trash, garbage and litter generated by the use. 2. That the operator of the food service use has submitted a practical program for monitoring and implementing the clean-up of site and adjacent areas. (J) Independent massage establishments not permitted (See Chapter 20.87: Massage Establishments). (K) Special event permit required, see Chapter 5.10 of the Municipal Code. (L) See Section 20.60.100: Home Occupations in Residential Districts. (M) See Section 20.60.105: Outdoor Storage & Display. (l) See Chapter 20.84: Time Share Developments. 34 1526 \02 \469683.4_8.9.2007 (0) See Chapter 20.89: Alcoholic Beverage Outlets. (P) See Section 20.60.120: Personal Property Sales in Residential Districts. (Q) See Section 20.60.130: Day Care Facilities for Children. 1. A Business License pursuant to Chanter 5.04 of the Municipal Code. the Municil2al Co&. (S): Integral facilities, as defined in Section 20.03.030, serving seven or more adults. are classified as residential care facilities general. Residential care facilities_ general, and residential care facilities, small unlicensed, would normally be prohibited in al residential zones as a group residential use but to —facilitate housing for persons with isabilities, residential care facilities, general, may be permitted with a use hermit in the C and MFR zones, and residential care facilities. small unlicensed, may be permitted with a use permit in the RSC. R -P. R -2_ and MFR zones. M: No residential use may offer or proyid s rviees to persons not residing on the site_ unless 1!1 111111 the zoning ordinances imder Chapter 20.98;-Reasonable Accommdations. (V_): All uses must obtain business licenses if required by Chapter 5.04 of the Municipal Code. 35 1526 \02\169683.4_8.9.2007 b EXHIBIT 4 mo THIS PAGE INTENTIONALLY LEFT BLANK ., CHAPTER 20.91 USE PERMITS AND VARIANCES Sections: Page 20.91 -1 Use Permits and Variances 20.91.010 Purpose 20.91.015 Use Permit or Variance Requisite to Other Permits 20.91.020 Application for Use Permit or Variance 20.91.025 Duties of the Planning Director and the Planning Commission 20.91.030 Notice and Public Hearing 20.91.035 Required Findings 20.91.040 Conditions of Approval 20.91.045 Effective Date 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation 20.91.055 Amendments and New Applications 20.91.060 Rights of Appeal 20.91.010 Purpose This article provides the flexibility in application of land use and development regulations necessary to achieve the purposes of this code by establishing procedures for approval, conditional approval, or disapproval of use permit and variance applications. Use permits are required for use classifications typically having unusual site development features or operating characteristics requiring special consideration so that they may be designed, located, and operated compatibly with uses on adjoining properties and in the surrounding area. Variances are intended to resolve practical difficulties or unnecessary physical hardships that may result from the size, shape, or dimensions of a site or the location of existing structures thereon; from geographic, topographic, or other physical conditions on the site or in the immediate vicinity; or from street locations or traffic conditions in the immediate vicinity of the site. Variances may be granted with respect to property development regulations and performance standards, but do not extend to land use regulations. 20.91.015 Use Permit or Variance Requisite to Other Permits No building permit or certificate of occupancy shall be issued in any case where a use permit or variance is required by the terms of this code unless and until such use permit or variance has been granted by the Planning Director or the Planning Commission or by the affirmative vote of the City EXHIBIT B 1526\02\469855.2_8.8.2007 I Page 20.91 -2 Use Permits and Variances Council on appeal or review and then only in accordance with the terms and conditions of the use permit or variance granted. 20.91.020 Application for Use Permit or Variance An application for a use permit or variance shall be filed in a manner consistent with the requirements contained in Chapter 20.90, Application Filing and Fees. If the application is for a use permit in a Residential District (Chapter 20.10) or in an area Speeifie PlatrDisifistwhere residential uses are provided for in Planned Community Texts or Special Plan Areas the application shall be accompanied by the additional information specified in Chapter 2949ZOM -M. 20.91.025 Duties of the Planning Director and the Planning Commission A. Authority. The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits or variances, unless the authority for an administrative decision on a use permit is specifically assigned to the Planning Director in the individual chapters of this code. Exception. The City Council shall have final decision - making authority on the applications for use permits and variances filed concurrently with amendments to the general plan, zoning code, or a planned community development plan or with a development agreement. B. Rendering of Decision. After the conclusion of the hearing on any application for a use permit or variance, the Planning Commission shall render a decision within thirty- five (35) days. Where the authority for an administrative decision on a use permit is assigned to the Planning Director, the Planning Director shall render a decisionwithin fourteen (14) days of the acceptance of a completed application. C. Report to the Planning Commission and City Council. The Planning Director shall report the discussion of the Planning Commission on a use permit or variance to the City Council at the next regular meeting or within 5 days of the decision, whichever occurs first. Upon rendering a decision on a use permit, the Planning Director shall report to the Planning Commission and the City Council at the next regular meeting or within 5 days of the decision, whichever occurs fast. D. Notice of Decision. Upon the rendering of a decision on a use permit by the Planning Director, a notice of the decision shall be mailed to the applicant and all owners of property within 300 feet of the boundaries of the site. EXHIBIT B 1526\02\469855.2_8.8.2007 16 Page 20.91 -3 Use Permits and Variances 20.91.030 Notice and Public Hearing A. Public Hearings. The Planning Commission shall hold a public hearing on an application for a use permit or variance. Public hearings are not required for applications where the authority for an administrative decision on a use permit is assigned to the Planning Director. B. Timing of Hearings. A public hearing shall be held on all use permit and variance applications, except as otherwise provided in this chapter, within sixty (60) days after the acceptance of a completed application. C. Required Notice. Notice of a public hearing or an administrative decision shall be given as follows: Mailed or Delivered Notice. a. Residential Districts. At least 10 days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within 300 feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least 10 days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within 300 feet, excluding intervening rights -of- way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. 2. Posted Notice. Notice shall be posted in not less than 2 conspicuous places on or close to the property at least 10 days prior to the hearing or the administrative decision. Published Notice. Notice shall be published in at least one newspaper of general circulation within the City, at least 10 days prior to the hearing. D. Contents of Notice. The notice of public hearing or of the decision of the Planning Director shall contain: EXHIBIT B 1526\02k469855.2_8.8.2007 I Page 20.91 -4 Use Permits and Variances A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing or of the purpose of the administrative decision; 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard at the public hearing or their rights of appeal in case of administrative decisions. E. Continuance. Upon the date set for a public hearing before the Planning Commission, the Planning Commission may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. 20.91.035 Required Findings The Planning Commission or the Planning Director, as the case maybe, shall approve or conditionally approve an application for a use permit or variance if, on the basis of the application, plans, materials, and testimony submitted, the Planning Commission or the Planning Director fords: A. For Use Permits. That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located. 2. That the proposed location of the use permit and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city. 3. That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. 4. If the use is proposed within a Residential District (Chapter 20.10) or inm area designated for sidentia, a....,,l.....,..eat .idii,, a Speei fie Pkin I4s*e -where residential uses are nrovided for in Planned Communitv Texts EXHIBIT B 1526 \02\469855.2_8.8.2007 jai, Page 20.91 -5 Use Permits and Variances or Special Plan Areas. the use is consistent with the purposes specified in Chapter 30-.5920.91A and conforms to all requirements of that ehapter.ha B. For Variances. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. 2. That the granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant. 3. That the granting of the application is consistent with the purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. 4. That the granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. 20.91.040 Conditions of Approval The Planning Commission or the Planning Director, as the case may be, may impose such conditions in connection with the granting of a use permit or variance as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with, including but not limited to management and operations plans. Such conditions may include, but are not limited to, requirements for off - street parking facilities and prohibitions against assembly uses as determined in each case. 20.91.045 Effective Date Use permits and variances shall notbecome effective for fourteen (14) days after being granted, and in the event an appeal is filed or if the Planning Commission or the City Council shall exercise its right to review any such decision under the provisions of Chapter 20.95, the permit shall not become effective unless and until a decision granting the use permit, or variance is made by the Planning Commission or the City Council. raa:rrwr1 1526\02\469855.28.8.2007 13 Page 20.91 -6 Use Permits and Variances 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation A. Expiration. Any use permit or variance granted in accordance with the terms of this code shall expire within twenty -four (24) months from the effective date of approval or at an alternative time specified as a condition of approval unless: 1. A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. In cases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit. B. Time Extension. The Planting Director may grant a time extension for a use permit or variance for a period or periods not to exceed three years. An application fora time extension shall be made in writing to the Planning Director no less than thirty (30) days or more than ninety (90) days prior to the expiration date. C. Violation of Terms. Any use permit or variance granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such use permit, or variance are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A use permit or variance shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96: Enforcement. 20.91.055 Amendments and New Applications A. Amendments. A request for changes in conditions of approval of a use permit or variance or a change to plans that would affect a condition of approval shall be treated as a new application. The Planning Director may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or additions EXHIBIT B 1526\025469855.2_8.8.2007 jq Page 20.91 -7 Use Pennits and Variances to the plan or the conditions of approval, and are consistent with the intent of the original approval. B. New Applications. If an application for a use permit or variance is disapproved, no new application for the same, or substantially the same, use permit or variance shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. 20.91.060 Rights of Appeal A. Appeals. Decisions of the Planning Director may be appealed to the Planning Commission and decisions of the Planning Commission may be appealed to the City Council. B. Procedures. Procedures for appeals shall be as prescribed by Chapter 20.95: Appeals. EXHIBIT B 1 526 \02\1698551_8.81007 15 EXHIBIT 5 1� THIS PAGE INTENTIONALLY LEFT BLANK q� 20.98.010 P w2ose. 20.98.015 Definitions. 20.98.020 Review Authority. 20.98.025 Application for a Reasonable Accommodation. 20.98.030 Decision. 20.98.035 Notice of Decision and Appeal. 20.98.040 Expiration, Time Extension Violation. Discontinuance. and Revocation. 20.98.045 Amendments. Me �. . iu.., .� .i �•_ . . 1. . _.. .r. i ItQz] RN approye, or deny applications fpr reasonable accommodation unlesa—anot—her di*cretiQuary permit or .. . val is requirW for the . . ... . , I ... . i •r .i . �. .i.. .o_1... . 1 Applicant A request for reasonable accommodation may be made by any person with a disability, their_re,=sentative, or a developer or provider o ousing for an individual with a disability. A reasonable accommodation may be approved only for the benefit of individuals with a disability. EXH1Brr C 1526\02\469962.38.8.2007 � reasonable accommodation but if the proiect requires another discretionary permit, then the prescribed fee shall be paid for all othcr iscretionary permits. 2. Other Discretionary Permits. if the project for which the request for easonable accommodation is made xeauires another discretionary Hermit or approval then the applicant shall, to the - -maximum extent feasible. file the request for reasonable accommodation together with the application or the other discretionary permit or approval. provider of housing for an individual with a disability. 2. The specific exception or modification to the Zoning Cade provjsjon policy, or practice requested by the applicant, and documentation, that suc lion or modification is necessary to provide the individual with a disability an Banal opportunity to use and enjoy the residence. A. Zoning Administrator Action. UnIc5s another discretionary permit or approval is required for the project, the Zonijjg Administrator shall issue a written determination to either approve. conditionally approve, or deny a request for reasonable accommodation in compliance with Section 20.98.025.D within 45 days of the date the application is deemed complete. or within an extended period as mutually agreed upon in writing by the applicant and the Zoning dministrator. B Additional Information The Zoning Administrator may request additional information necessary for making a determination on the request for reasonable accommodation, so lone as any request for information regarding the disabiljty o the individual benefitted complies with fair housing law protections and the privacy rights of the individual. if additional information is-reguested. the 45 -day time period for making a determination on the request stopc running until the additional information is provided. C Other Review Authority if another discretionary permit or_=12roval is required for the nroiect, the authority responsible for reviewing the discretionauLnermjt shall issue a written determination to either approve, conditionally approve, or env a request for reasonable accommodation in compliance with &Llim The reasonable accommodation request shall be heard with. an EXHIBIT C 1526 \02 \469962.3_8.8.2007 1� subject to. the notice. review, approval and anneal Procedures prescribed for the other discretionary permit. D. Findings. The written decision to approve_ conditionally approve. or deny a request for reasonable accommodation shall be based on the following findings required for approval of a reasonable accommodation: 1 that the housing which is the subject of the request for reasonable accommodation, will be used by an individual-with a disability protected under the fair housing laws 2 that the reauested accommodation is necessary to make housing available to an individual with a disability protected under the fair housing laws; 3. that the requested accommodation would not impose an undue financial or administrative burden on the City as "undue financial or administrative burden" is defined in fair housing laws and interpretive case law; and 4 that the requested accommodation would not require a fundamental alteration in the nature of the City's zoning program_ as " fundamenta alteration" is defined in fair housing laws and intemretive case law. In making these fndings. the decision-maker may approve alternative reasonable accommodations which provide an eauivalent_level of benefit to the applicant E Coastal Zone Properties For housing located in the Coastal Zone. a reauect for reasonable accommodation under this section maV be approved by the City if it is consistent with the requisite ngs set forth in 20.98.025.D. with Chanter 3 0 e California Coastal Act of 1976_ and with the Intermetative Guidelines for Coastal Planning and Permits as established by the California Coastal Commission dated Februa_ry 11 1977 and any subsequent amendments, and the Local Coastal Program. Where a request for reasonable accommodation is consistent with 20 98.025.D belt is not consistent with all of the other regulations identified in the paragraph above. the City may approve the request for reasonable accommodation if the 1 that the reauested reasonable accommodation is consistent, to the maximum extent feasible, with the regulations identified in this subsection and. 2. that there are no feasible alternative means for providing a reasonable accommodation that would provide greater consistency with the regulations identified in this subsection. EXHIBIT C 1526 \02\169962.3_8.8.2007 6 L-1-MI 1 For the pumoses of this Paragraph E- "feasible" means capable of hejng accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal. social. and technological factors. E. Rules While Decision is Pending. While a request for reasonable accommodation is pending, all laws and regulations otherwise applicable to the property that is the subject of the request shall remain in full force and effect. A. Applicability. The procedures in this Section 20.98.030 apply when the project for which a reasonable accommodation is sought requires no discretionary pe other than the request for reasonable accommodation. B Notice Notice of the Zoning Administrator's determination shall be provided to the applicant the City Council the Planning Commission and to abutting owners of the mperty which is the subject of the request for reasonable accommodation. For pumoses of this section only, abutting owners shall include owners of property that would abut the subiect property if the existence of a street or alleyway were disregarded. All written decisions shall give notice of the right to appeal and to request reasonable accommodation in the appeals process as set forth in Paragraph C below. :..- . 904rro.s. MMINWAM . ., annlicant_ abutting owners who received notice of the reasonable accommodation heard pursuant to the procedures stablish d in Chapter 20.95 of this Code. The decision of the Planning Commission may be further appealed to the City Council pursuant to the procedures established in Chanter 20.95. D Effective Date No permit or license shall be issued for any reasonable accommodation until the decision shall have become final by reason of the iration of time to make an appeal. In the event an appeal is filed_ the reasonable accommodation shall not become effective unless and until a decision is made by the Planning Commission or City Council. as applicable, on such appeal, under the provisions of Chapter 20.95. No permit or license shall be issued for any use or property modification until the decision shall have become_ final by reason of the expiration of time to make an appeal. E)dMlT C 1526 \02 \469962.3_8.8.2007 0 1 IFIRmnel mi . t 1 111 11 1 I. 1 • 1 � •_I -111 le. .''1 '. 1 1 1, 11 1111- -�A 2. A certificate of occupancy has been issued 4. A time extension has been granted. In cases where a coastal permit is required. the time period shall not begin until the effective date of approval of the coastal permit. •.1.. .1.1. 1 11- -1 11 1• 11 :1- __ 1 11. 1� 1. . 1 1 :.1 1 1" `1 1. .11 1 the expiration 1. C. Violation of Terms. Any reasonable accommodation approved in accordan ce th the terms of this code may be revoked if any of the conditions or terms of such reasonable accommodation are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A reasonable accommodation shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. If the persons initially occupying a residence vacate the reasonable accommodation hall remain in effect only if the Zoning Administrator determines that (1) the modification is physically integrated into the residential structure and cannot easily be removed or altered to comply with the Code or (2) the accommodation is to be used by another individual with a disability. The Zoning Administrator may rMuest the applicant or his/her successor in interest to the property to provide Citv shall constitute grounds for discontinuance by the City of a DreviousLy approved reasonable accommodation. E Revocation Procedures for revocation shall be as prescribed by Chapter Enforcement. -. 1 1! 1• 1 111 1 1 .._. 1 1 _ __ 11:1 - 1 1.. 1 . 1:1 •_ EXHIBIT C 1526 \02\169962.3_8.8.2007 Administrator may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or addition to the plan or the conditions of approval, and are consistent with the intent of the original approval. EXHIBIT C 15261021469962.3_8.8.2007 INVII EXHIBIT 6 THIS PAGE INTENTIONALLY LEFT BLANK D� Page 20.62 -1 Nonconforming Structures and Uses CHAPTER 20.62 NONCONFORMING STRUCTURES AND USES Sections: 20.62.010 Purpose 20.62.020 Applicability 20.62.030 Determination of Nonconformity 20.62.040 Nonconforming Structures 20.62.050 Nonconforming Uses 20.62.060 Nonconforming Parking 20.62.065 Landmark Buildings 20.62.070 Restoration of Damage or Destruction 20.62.080 Termination of Nonconforming Status 20.62.090 Abatement 20.62.100 Rights of Appeal 20.62.010 Purpose Nonconfonnina uses. structures. and narking are inconsistent with a established standards and reeulatipDS_sef I�h m tiv�s T tle,.This chapter establishes procedures forthe continuance or abatement of existing structures and uses that do not conform to the provisions ofthe Zoning Code and the pals. and esnecially in residential zoning- sLisoiru. and which may be adverse to the general welfare of persons and pmnerty and detrimental to the orderly development of the City extent feasible, te e8tahligh the AritAlia u der whieh they faay be eemitmed erpess:bly expended, and- te bFing these stmetufes aM uses into eanfemity in an equitable, femonable and fiffiely Manae {T evser-s.)as envisioned by the aoals and policies of the General Plan. The purpose of these provisions is to: :.ig nonconforming uos and structures inIQ m ..m,a. - standaWs spt forth in the City's Zoning B $duce he occurtrnce and limit the extent of nonconformance ofnonconfpmvnguses and structures-especially in residential zoning districts C. 12123/04 1526\02\470046.5_8.13.2007 to Page 20.62 -2 Nonconforming Structures and Uses 12/23/04 1526102\170046.5_8.132007 I Page 20.62 -3 Nonconforming Structures and Uses 20.62.020 Applicability Uses, buildings, structures or lots that become nonconforming due to reclassification, ordinance changes, or annexations may be continued, subject to the provisions of this chapter. 20.62.030 Determination of Nonconformity A. The Planning Director shall determine the nonconformity of any use, building, structure, or lot. Any use� building, stnicPam, or lot fiYund to he inoan.'Sigtent with the -iens of the ZepAng Code shall be deemed to be B. Any = found to have been lawfully a tablishW and maintained. but which does not conform with the use regulations or required conditions for the district in which it is located by rea n of adoption or amendment of this code or by reason of annexation of territory to the City shall be deemed to be a nonconforming use. A nonconforming use includes a use that was lawfully establighyd and maintained but is conditionally permitted in the district and has not obtained a use permit. A use shall not be onsidered to have been "lawfully established and maintained" and is an illegal use ifi was established or operated without required permits and licenses including but no limited to permits and licenses required by any federal, state. or local government agency. C ny tructure or bu'l ing t at 3ygs lawfilly erected but which does not conform wit the property development regulations n -scribed in the regulations for the district�a which the structure is located by reason of adoption or amendment of this code or by reason of annexation of territory to the C itv shall be deemed to be a leea permits. including but not limited to permits required by any federal_ state, or local government agency. D When a use or structure does not conform with the use regulations or require conditions for the district in which it is located. it shall be the responsibility of the owner to provide evidence to the Planning- Director that the use or structure was lawfully established maintained�ttd erected and is nonconforrrLe by reason of adoption or amendment of this code or by reason of-annexation of temtory to the Cky- EMITO 11. 1.. 1' 1. WMIMI . N in I MMM I M 1 41 a 1. 1' 11 1 I I the Vmisions of this II," and the 11. amme-nman-acti II for 1' abatement and removal of the or 1 PursuantlQjhe.Droyis1 1 1 ,ha-oter 20.96. 12/23/04 1526\02\470046.5_8.13.2007 /� Page 20.624 Nonconforming Structures and Uses 20.62.040 Nonconforming Structures A. Maintenance and Repairs. Ordinary maintenance and repairs may be made to legal nonconforming structures. No structural alterations shall be made which would prolong the life of the supporting members of a structure, except as provided in this section. B. Interior Alterations. Changes to interior partitions or other nonstructural improvements and repairs may be made to a legal nonconforming structure, provided that the cost of the desired improvement or repair shall not exceed 50 percent of the replacement cost of the nonconforming structure, as determined by the Building Director, over any consecutive 12 month period. C. Structural Alterations. Structural elements of a legal nonconforming structure may be modified or repaired subject to the following provision: Alteration of up to 25 percent of the structural elements within any 12 month period may be permitted by right. 2. Alteration of up to 50 percent of the structural elements within any 12 month period may be permitted upon the approval of a modification permit. 3. Alteration of up to 75 percent of the structural elements within any 12 month period may be permitted upon the approval of a use permit by the Planning Director, subject to the findings and provisions contained in Section 20.62.040 (F). D. Additions. Structures legally nonconforming for reasons other than for parking, open space, floor area, or building bulk, may be enlarged, extended or expanded subject to the following provisions: A increase of up to 25 percent of the gross floor area within any 12 month period may be permitted by right. 2. An increase of up to 50 percent of the gross floor area within any 12 month period may be permitted upon the approval of a modification permit. An increase of up to 75 percent of the gross floor area within any 12 month period may be permitted upon the approval of a use permit by the Planning Director, subject to the following findings and provisions contained in Section 20.62.040 (F). 12/23/04 1526\02\170046.5_8.13.2007 S1 Page 20.62 -5 Nonconforming Sructures and Uses No addition shall cause an increase in the structure's inconsistency with the regulations of the Zoning Code. E. Exceptions. The provisions of this section shall not apply to the following circumstances: Seismic Retrofits. Alterations to a structure required to comply with the minimum provisions of Chapter 15.07, "Earthquake Hazard Reduction," and California Government Code Section 8875. 2. Public Health & Safety. Structural elements of a legal nonconforming structure may be modified or repaired if the Building Director determines that such modification or repair is immediately necessary to protect the health and safety of the public or occupants of the nonconforming structure, or adjacent property and the cost does not exceed 50 percent of the replacement cost of the legal nonconforming structure, as determined by the Building Director. 3. Nonconforming Parking. Structures which are nonconforming due to off - street parking and loading requirements shall be subject to the provisions of Section 20.62.060. F. Required Findings. A use permit required for the alteration of a nonconforming structure may be approved only if the following findings are made in addition to those findings specified in Chapter 20.91. The cost of the improvements to be made is minor in comparison to the value of the existing nonconforming condition. 2. The cost of correcting the nonconforming condition would exceed the cost of the other alterations proposed. 3. Retention of the nonconforming condition is necessary to maintain reasonable use of the structure. 4. The alteration does not increase the structure's inconsistency with the regulations of the Zoning Code. 17/23/04 1526\02\170046.5_8.13.2007 Ell Page 20.62 -6 Nonconforming Structures and Uses 20.62.050 Nonconforming Uses A. Expansion, Increase and Intensification of Nonconforming Uses.— Alnnonresidential districts, and in areas where residential uses are nQ1 Drovided for in Planne Community Districts or Specific Plan Districts. a use normally permitted by right or by the approval of a use permit, but which is nonconforming by virtue of the required conditions of the district in which it is located, may be expanded, increased or intensified by way of a change in operational characteristics upon the approval of a use permit. Exception: The use of a Landmark Building (see Section 20.62.065) may be changed, expanded, increased or intensified and structural alterations maybe made without obtaining a use permit required by this Section or the provisions of Section 20.82 subject to compliance with the provisions of Section 20.62.065. B. Change of Nonconforming Use. A nonconforming nonresidential use maybe changed to a conforming use provided that the requirements of Chapter 20.63 (Floor Area Ratios and Building Bulk) are satisfied and the change does not create or increase a deficiency in code required off - street parking. A nonconforming residential use may be altered to reduce the number of dwelling units provided there is no increase in gross square footage and the provisions of Chapter 20.86: Low and Moderate Income Housing A4thiftwithin the Coastal Zone, are satisfied. Aln nonresidential znnine districts. and in areas where residential uses are not pmvided for in Planned Community Districts or Specific Plan Districts, a nonconforming use may be changed to a use of a similar nature provided no intensification or enlargement of the nonconforming aces M occurs- exeept•. unless a use permit is eranted as provided in Subsection A above, and provided that the new use is no less compatible with the surrounding area. 20.62.060 Nonconforming Parking A. Residential Uses. Where residential uses are nonconforming only because they do not conform to the off - street parking requirements of this code, the following alterations are permitted: Number of Spaces a. Residential development having less than 2 parking spaces per dwelling unit: 12/23/04 1526\024170046.5_8.132007 q Page 20.62.7 Nonconforming Structures and Uses (1) Repair and maintenance, interior alterations, and structural alterations, as provided for in Section 20.62.040 (A -C). (2) Minor additions to existing buildings, such as the construction of bathrooms, closets and hallways, or the expansion of existing rooms, subject to the floor area limits of Section 20.62.0.040 (D -1 — 133). (3) Addition of a new room provided that there is no net increase in the number of habitable rooms, upon the approval of a modification permit, subject to the floor area limits of Section 20.62.0.040 (D -1 — D -3). b. Residential development having at least 2 parking spaces per dwelling unit may be altered or expanded as provided in Subsection A -1 -a, except that: (1) The approval of modification permit shall not be required for the addition of a new room provided that there is no net increase in the number of habitable rooms. (2) Additional rooms may be added upon the approval of a modification permit. 2. Size of Parking Spaces. a. No discretionary approvals shall be required for the alteration or expansion of buildings which are nonconforming only because amendments to this code have changed the dimensions of required parking spaces subsequent to the original construction of the building, provided that the building and any proposed addition shall conform to current provisions of this code with regard to the number of required parking spaces. b. Where the dimensions of required parking spaces do not meet provisions of Subsection A -2 -a, above, or current standards, alteration of the structure may be permitted only upon the approval of a modification permit. 3. Covered and Enclosed Panting. 1526W\470046.5_8.13.2007 12123/04 Page 20.62 -8 Nonconforming Structures and Uses Residential development having less than the required number of enclosed parking spaces: a. Repair and maintenance, interior alterations, and structural alterations, as provided for in Section 20.62.040 (A -C). b. Minor additions to existing buildings, such as the construction of bathrooms, closets and hallways, or the expansion of existing rooms, subject to the floor area limits of Section 20.62.0.040 (D). C. Addition of a new room provided that there is no net increase in the number of habitable rooms, upon the approval of a modification permit, subject to the floor area limits of Section 20.62.0.040 (D). B. Nonresidential Uses. Where nonresidential structures and uses are nonconforming only because they do not provide the number of parking spaces required by this code, the following shall be controlling: Continuation or Change. Nonconforming structures and uses in nonresidential zoning districts. and in areas where residential uses are not provided for in Planned Cormmunity Districts or Sne ific Plan Districts may be continued or changed to a use requiring the same or less on -site parking, consistent with all other provisions of this code. 2. Repair and maintenance, interior alterations, and structural alterations, as provided for in Section 20.62.040 (A -C). 3. Enlargement or Intensification. a. More Than 10% Increase The nonconforming structure or use may be enlarged by more than 10 percent of its original doss floor area, or onsite uses may be intensified such that code required parking would increase by more than 10 percent, in any 12 month period, only if all code required parking is provided, unless a waiver or reduction of the parking requirement is authorized by use permit approved by the Planning Director. b. Less Than 10% Increase 1526 \02\470046.5_8.13.2007 12/23/04 l5 Page 20.62 -9 Nonconfomting Struawes and Uses A nonconforming structure or use may be enlarged by less than 10 percent of its original gross floor area or intensified to generate less than a 10 percent increase in code required parking, upon the provision of code required parking attributable to the enlargement or intensification. 4. Removal. All nonconforming rights with regard to parking shall be lost for any non - accessory building which is demolished. 20.62.065 Landmark Buildings A. P ose. To preserve historic structures, encourage their adaptive reuse, and revitalize the older commercial areas in which they are located by granting relief from restrictions on nonconforming uses and structures in this Chapter while maintaining the principal use and minimizing impacts on the surrounding area. B. Applicability. The following types of buildings are recognized as having importance to the history and architecture of the City of Newport Beach and are collectively designated as Landmark Buildings: Landmark Theaters. The term Landmark Theaters shall mean any building constructed for use as a cinema or theater that (a) was constructed on or before December 12, 1950; (b) has a single screen or stage; and (c) was designed to seat more than 300 people. 2. Landmark Structure. The term Landmark Structure shall mean any building listed on the National Register of Historic Places, constructed prior to December 12, 1950. C. Exemptions. The principal use of a Landmark Building may be modified, maintained, altered, increased or intensified by way of a change in operational characteristics without obtaining a use permit required by Section 20.62.050 (A) or the provisions of Section 20.82, subject to compliance with the conditions of Subsection (D) and irrespective of whether the principal use has been inactive for any period of time since inception. An accessory use may be initiated, or intensified by way of a change in operational characteristics, in a Landmark Building without obtaining a use permit required by Section 20.62.050 (A) or Section 20.82 subject to compliance with the conditions of Subsection (D). Structural alterations may be made to a Landmark Building without obtaining a use permit pursuant to Section 20.62.040(C) subject to compliance with the conditions of Subsection (D). For purposes of this Section the term accessory use shall mean any use that is permitted as a matter of right or 12/23/04 1526\02\170046.5_8.13.2007 l' Page 20.62 -10 Nonconforming Structures and Uses pursuant to a use permit in the zoning district in which the Landmark Building is located. For purposes ofthis Section, the term principal use shall mean, in the case of a Landmark Theatre, the (i) display of motion pictures; and (ii) any similar entertainment use that occurred on a regular basis within the structure from its inception to January 1, 2003. In the case of Landmark Structure, the term principal use shall be the use that occupied the greatest amount of floor area as of January 1, 2003. D. Conditions. The exemptions specified in Subsection C are applicable on the following conditions. Any new use that is initiated, and any use that is intensified by way of a change in operational characteristics, is accessory and remains subordinate to the then current and ongoing principal use of the Landmark Building. 1 The principal use of the Landmark Building occupies, at all times, no less than seventy percent (70 %) of the of the gross floor area of the Landmark Building. 3. A use permit is issued pursuant to the provisions of Chapter 20.89 (Alcoholic Beverage Outlets) prior to the initiation of any accessory use that involves the sale or consumption of alcoholic beverages. 4. Any permit required by any other titles (other than Title 20) of the Municipal Code has been issued prior to the initiation or intensification (by way of a change in operational characteristics) of any accessory use of the Landmark Building. 5. Any accessory use in any Landmark Theater is conducted between the hours of 8:00 a.m. and 12:00 a.m. 6. The required off -street parking of all uses after any additions, intensification, modification or expansion (including credit for reductions in off - street parking resulting from the elimination of accessory uses existing on January 1, 2003) is less than the required off -street parking for the principal and accessory uses prior to any additions, intensification, modification or expansion. 7. The fagade and/or exterior architectural features of the Landmark Building are not substantially altered or are restored to original condition and the exterior walls of the Landmark Building remain in substantially the same location as they existed on January 1, 2003. 12J23/04 1526\02\170046.5_8.13.2007 q6 Page 20.62 -11 Nonconforming Structures and Uses 1223/04 1526\02\170046.5_8.13.2007 Il Page 20.62 -12 Nonconforming Structures and Uses 20.62.070 Restoration of Damage or Destruction A. Nonconforming Use. A nonconforming use occupying land, a building, or portion thereof which is otherwise conforming and damaged or destroyed by fire, explosion, earthquake, or other disaster may be reestablished, provided that restoration work is commenced within 12 months after the damage or destruction occurs and is pursued diligently to completion and provided that an abatement period for the use has not been established pursan ut to Section 20.62.090. B. Nonconforming Structure or Parking Determination of Replacement Value. The replacement value of the structure shall be determined by the Building Director. However, the Building Director shall accept the appraised replacement value of the structure as determined by an independent, licensed appraiser retained by the property owner, should the property owner choose to do so. The replacement value of the structure shall be in excess of the building foundation at the time of the damage. 2. Up To 90 % Damage or Destruction. a. General Provisions. A nonconforming structure, which is partially destroyed by fire, explosion, earthquake, or other disaster, may be repaired or restored as a matter of right if the cost of the repair or restoration is less than 90 percent of the replacement value of the structure. The rights conferred by this section are contingent upon diligent application for a building permit after the damage or partial destruction occurs and diligent pursuit of repairs to completion. b. Special Provisions. Notwithstanding the provisions of subparagraph a, where a structure is nonconforming due to an encroachment into a setback or into the required distance between buildings, and the encroachment is more than 90 percent destroyed, a modification permit shall be required for replacement or repair of the encroachment. When a structure is nonconforming due to excessive height, bulk, gross floor area, or lack of open space, and the nonconforming condition is more than 90 percent destroyed, the nonconforming condition may be restored only after approval of a use permit approved by the Planning Director pursuant to Chapter 20.91 with the 1223/04 1526\02\170046.5_8.13.2007 1I Page 20.62 -13 Nonconforming Structures and Uses following additional findings, subject to the limitations in Subsection D below: (1) That replacement of the nonconforming condition is necessary to maintain reasonable use of the structure or individual condominium unit. (2) That replacement of the nonconforming condition is necessary to preserve a substantial property right. 3. Greater Than 90% Destruction. if a nonconforming structure is damaged or destroyed by fire, explosion, earthquake, or other disaster to an extent of more than 90 percent of its replacement value, then the nonconformity may be restored only if a use permit is first approved by the Planning Director provided application for the use permit is made within 12 months after the damage or destruction occurs and the following findings are made in addition to those findings required in accordance with Chapter 20.91 subject to the limitations in Subsection D below: a. That replacement of the nonconforming condition is necessary to maintain reasonable use of the property or individual condominium unit. b. That replacement of the nonconforming condition is necessary to preserve a substantial property right. 4. Removal of Portions of the Structure Not Destroyed or Damaged. If a nonconforming structure is damaged or destroyed by fire, explosion, earthquake, or other disaster to an extent of more than 50 percent of its replacement value, then a maximum additional 20 percent ofthe structure may be removed and replaced if necessary to pursue restoration of the structure. Any additional portions of the structure may be removed and replaced, only upon the approval of a use permit by the Planning Director and subject to the following findings in addition to those findings required in accordance with Chapter 20.91. a. That substantial additional expense would be created by the necessity of working around the additional portion of the structure to be removed when repairing the damaged or destroyed portion. 12123/04 1526M\470046.5_8.13.2007 Y" Page 20.62 -14 Nonconforming Structures and Uses b. That replacement of the nonconforming portion of the structure which was voluntarily removed is necessary to preserve a substantial property right; or that the rebuilt portion of the structure will more nearly conform to the provisions of this code. C. Ming and Deterioration. The provisions of this section shall not be construed to permit replacement of nonconforming conditions in structures undergoing renovation, remodel, or reconstruction, structures damaged by ongoing natural processes such as dry rot or termites or structure which have deteriorated due to age. D. Condominium Units. When a use permit is required for replacement or repair of any condominium units which are damaged or destroyed by fire earthquake, explosion, or other disaster, no reduction in the number of units shall be required. The replacement units shall be permitted to be equivalent in size and location to the units which were damaged or destroyed. 20.62.080 Termination of Nonconforming Status A. AUnless otherwise provided in this chanter, a nonconforming lesateduse must cease operations and cannot be reestablished when one or more of the following events occur: rr..IeSS,.Aie...ASe..M -VidAd f ..iR Oli S,. r,aptti.-_„jk nonconforminguse -wl h remains inactive for 180 consecutive days, and shall not theFeafter be xcept as provided in Subsection B, below. AThe nonconforming use is converted to a conforming use. 4alr nonconforming us„ ^r- n*T--..._. ' ^^m^-fe""'t ' is enlarged, extended, expanded or in any other manner changed to increase its inconsistency with the regulations of the Zening- Cede*.}u_ sue. 12/23/04 1526\02`470046.5_8.13.2007 19 Page 20.62 -15 Nonconforming Structures and Uses B. Exceutions. �k n nonresidential canine districts and in reae where residential uses are not m-ovided for in Planned Communitv Districts or SDCC1fiC Plan Districts a nonconforming use which has been inactive for 180 days or more may be reestablished, subject to the approval of the Planning Director upon finding that: a. The use is normally permitted, either by right or by the approval of a use permit, and is nonconforming only by virtue of the required conditions of the district in which it is located; and b. The property or structure where the nonconforming use was located contains a substantial investment in the structural design, equipment, or fixtures that are unique to and necessary for the operation of the former use; and C. The property owner has made a good faith effort to reestablish the use and has maintained the property in a manner to prevent unsafe or unsightly condition during the period of inactivity. 2. A nonconforming use that has been inactive for 180 days or more may be reestablished when located within a Landmark Building, pursuant to the requirements of Section 20.62.065. C. Abatement. Whenever the Planning Director finds that any of the conditions set forth in Subsection A exist. the Plannine Director may issue a written order ofahaternent as specified in Section 20.62.090.F of this chapter 20.62.090 Abatement 1'Y 12/23/04 1526102\470046.5_8.13.2007 fob Page 20.62 -16 Nonconforming Structures and Uses 111 the 1 r .I gf the Deriods of Nonconforming Use of Land When No Structure Is Involved. In anydistrict-, the nonconforming use of land %kereix-xenot involving a structure is invel'red shall be abated within one year sedefollowin_g annmval of an inventpry containing the use pursuant to Section 20.62.090.B: or within one Year after the Planning Commission o=letes proceedings for the abatement of the use pursuant to Section 20.62.090.E. 2. Nonconforming Use of Land Involving a Structure r' my - 1"11. � 11 1, }_ 1 1 : 1 1 e.l . 1' - l •1 _:JI.1. - 1 11 1' 1 1 1' X 1" 1 1 11 U_ 1 ■ � 1 w 1 1' 1 1 1 1 fill WNW: 1 1" 1 1 I 1 _J " 1 1• 1 1 I I' I I lwkq ei Exception: Residential uses in Residential-Districts (Chapter 20.10). and in areas where residential uses are provided for in Plate Cnmunmity Districts or Specific Plan Districts.( which are nonconforming only in terms of their density l: Rh e:,rar narking shall not be subiect to abatement. 1 1 1-1 1 1 .11-1 11!..11 .1 , 1 1 _ 1- .I ml 1" 111 11.1111 1! 1- 11 .1 1 ml. 1.. Oro ' Exception: No abatement period will be set for the use of a Landmark Building (see Section 20.62.065), which may be changed, expanded. increased 12/23/04 1526\02\470046.5_8.112007 )dl Page 20.62 -17 Nonconforming Structures and Uses I 1 1 ": a 11 Sl. S._•. -Y• I 1 11. 1- II.I- Y... •- 1� I I � - I� 1 1 Id B Procedures for Abatement ofUses in Residential Districts The following procedure shall be followed prior to any abatement of nonconforming uses in Residential Districts (Chanter 20.10) and in areas where residential uses are provided for in Planned Community Districts or Specific Plan Districts: I. 1 .• 1.. 1 -L1 I - IIW.II I -1J\ IN-IM IMIJ 11 LIM 1111 .- �..• IL -1 1 11 I 1. ti X41' I I. 2. Notice of Inventory Following completion of all or part of the inventory the City shall send written notice by first class mail to the owners of all nronerties- as shown on the last equalized assessment roll- identified by the ventory as non o forming uses st bj atem nt Within 45 days ofthe ailing of the written noti any moperty owner. ai_ authorized agent, may submit a complete application to the Planning Director demons tine that the use conforms with the rse regulations and required-conditions for the district in which it is to a ed. The Planning Director shall make a determination no more than 90 days after receiving a complete amlicati The Director shall modify the inventory as re quired. 3. Planning Commission Liarbig. The Planning Commission shall consider. at a I.1!- 1 1 .II 1 1' II I . . II II . 1 I• I - • I• n'1 4. Further Notice to Owners. Within 14 days following approval ofthe im entory ofusgs obicizi to aba em nt the Citv shall send written notice. by first class to the owners of all nronerties as shown on the last equalized assessment roll identified in the approved inventory as nonconforming use subject to abatement The written notice shall describe the abatement period and the procedures for requesting an extension of the ab tement period. Ifam xisting uses may become conforrn_ing upon the approval of a use pernmit. the written notice shall deccri . the procedures for applying for a use Hermit. 12/23/04 1526WZk170046.5_8.13.2007 Im Page 20.62 -18 Nonconforming Structures and Uses rq#-WOTII 1 1. Purpose. A nroueM owner may request an ex en. ion of the abatement neriod avoid an unconstitutional taking. _!1. 1 .[ -1_ 11-1 1-1.1! - 11.1 1 1 1.1 - �1' 1_I . . 1•. 1 1 _ b. �ienfesidentW distriets� 10 years, The length of the requested extension of the abatement neriod. 11 1' 1 1 •1111 1 _1 1.11 L' •1 1' 1 1 - All 1 1 111 1 pfevided in Chapter 20.94. The wwar of Imsee be allewed to jpFesei34 e-videpee ary he may possess mid YvMeh may felate to the ease. 3. Nptio and m! gi Planning Cm33mission Action, The Planning CommissiM -.. 1-:e -1. • shall 1- as 1- 1_ -I in Chapter 20 .91, The • 1 1' msohition. Ma approve, conditionally approve, or deny the request for -1 11 1 _!- abatemot Period. I A 11 1• in 1' finding / fact, as 11 11 Findings. In reviewine an amlication for an extension to the abatement period--ft Planning Commission shall 12123/04 1526 \02470046.5_8.13.2007 l0 Page 20.62 -19 Nonconfomting Structures and Uses pied- -¢rant an extension only as reouired W avoid an unconstitutional taking of property. The Commission shall consider pel4inent " to enable ;I ta R--frive- at am equitable abatement period which thefe be suok to am Rg his The length of the abatement period in relation to the owners investment in the�ase t not limited W. the cost of the M=ty an improvements. the lenglh and remaining teen of the lease under which the use is maintained, structural alterations or enlargements, eta the installation of major equipment designed irAe the beikIkitprior to the date of nonconformity whea seaiffg the abatement petied.i b. The length of time the use was operating prior to the date of nonconformity: C. The suitability of the structure for an alternative use: d. Harm to the Dublic if the use remains beyond the abatement period: and F. Aefion by Pkmnine the period, and sha4l set 44th is based. i-:A findings fasts the JAW mid feqshitien ah and upon whieh of .aieh- abatement e. The cost and feasib y gf relQmlingy the use to .ia F-5. Notice to Owner. The Secretary of the Planning Commission shall formally notify the owner of sueh- nonconforming property of the action of the Commission by mailing to -sxehik owner a copy of the resolution not later than 10 days following the date of its adoption by the Planning Commission. 1. Planning Commission Action. Where the Planning Commission determine [ that the orderly termination of a nonconforming used in a nonresidential district or in areas where residential uses are not provided for in Planned Community Districts or Specific Plan Districts.[ is necessary to promote the health. safety. and general welfare and to comply with the provisions of the 1=3/04 1526 \02%170046.5_8.13.2007 ) d Page 20.62 -20 Nonconforming Structures and Uses Zoning �osie and coals and_uolicies of the General Plan it may establish a ten -year abatement period nursuantto Subsecrion A.2. 2. Notice and Hearing. Notice and hearing shall be provided as specified m Subsection C above. If the owner desires a longer_abatement period, the owner may present evidence as may relate to the case. Following the hearing. the Planning Commission may psUblish or refuse to establish an abatement period. if the Comrntission decides to establish_an abatement period, it shall fo 1ow he procedures specified in Sub ection C above •(_!" 1 ' I. - 1 -1 I -1" .,1" 1- 1 1 1 1 1 1 1 1.1 . I 1 1 . .l 1 1 ! ! - 1 1 . - 11 ' 1 • I I 1 ... ;4 - I \ ! -.. � .. 1 1 .,1 " 1 1 1_ !+ ! 1 " •11 1'F11 11 11 1 - I IJ ILI$ OWN 1 1- 1.•1 II I 1111 II-MIUM I 11411141 1- 111._1 -1 1 1 I 1526 \02\470046.5_8.13.2007 12/23/04 N5 Page 20.62 -21 Nonconforming Structures and Uses 20.62.100 Rights of Appeal A. Appeals Decisions of the Planning Director or the Zoning Administrator may be appealed to the Planning Commission and decisions of the Planning Commission may be appealed to the City Council. B. Procedures. Procedures for appeals shall be as prescribed by Chapter 20.95: Appeals. 1223/04 1526 \02\170046.5_5.13.2007 1�YJ EXHIBIT 7 j6� THIS PAGE INTENTIONALLY LEFT BLANK )b'� 20.91A.010 Purpose 20.91 A.020 Application Contents 20 IA.030 Development and Operational Regulations 20.91A.040 Required Findings The p=ose of this chanter is to promote the public health safety, and welfare and to implement the goals and policies of the Newport Beach General Plan by enshrine that conditional uses in residential neighborhoods do not change the ter of such neighborhoods as primarily residentia communities. In addition to the application requirements contained in Chanter 20.90, Application Filing and Fees. an application for a use permit in a Residential District (Chanter 20.10), or in an area where residential uses are provided for in Planned Community Districts or Specific Plan Districts. shall be accompanied by the following information and plan s: A Required Information Number and types of users of the facility (including staff. clients, visitors, students, etc._. as-appropriate)-hours of operation. types of activities. and typical attendance at activities: availability of public transportation_ expected parking demand and vehicular use: operations and management plan to ensure compliance with state and local law; rules of conduct for all users of the site: an d information required by Section 2091A030A(1) If the use permit is for residential facility, such as a residential care facility or a bed and breakfast inn. also indicate the number of residents per room maxim= number of occupants typical en& of stay. and any guest or client rules of con B. Required Plans Plans showing the location of all similar facilities and all non= residential facilities within three blocks; site plan showing uses and structures on adiacent parcels. 12/23/04 15261021469946.4_8.13.2007 �b� F-tivirwaxim mom" A. Overconcentration. 1. The applicant shall provide a list of other uses of the same We in Newport Beach and the licensed or authorized capacity of those Lies: and evidence of the need for the facilitv by residents of New pp ,112tach , preferably based on published sources. The City may complete an indep-endent eview of this data at the anplicant's expense to determine whether there is for the use by Newport_Beachresidents We to serve the needs of Newport Beach residents.-then there shal Lbe n9-more than-one use of that type on any block —and no uses of the same tYp_e_shalldrelocated within 75 feet of-each other, measured from the exitrior property lines of both uses. 3. The Provisions of this Paragraph A_shall_uot apply to the�pproval of a use permit for an existing nonconforming use which is nonconforming only by lack of a use Hermit. B. Maximum Occupancy. There may be no more than two residents n r bedroom p us one additional resident• C. Outdoor Smoking. No staff, clients, guests, or any other users of the site may smoke in an outdoor-area within fifteen feet of the property lines of the site_ D. Management and Operation. The property shall be operated_in compliance with pjicable state and local law and in conformance with the management and operating Plan and rules of coad .ct submitted _as Part of the application for a use p it.she_onerator shall obtain a business lie=n a for the use if required by the E. Residential Care Facilities to be Occupied by Individuals with_Disabilities. The staudards d below shall be applied to alLuW icensedsesidential care facilities serving individuals with disabilities. to ensure that these facilities are operating i a manner that is consistent with -state and federal law and with established standards —and that the operators do not have a pattern or practice of operating similar facilities in violation of state or local law: I . The facility is not required to be licensed by the State of California and owners, managers, operators, and residents do not provide onsite any services which would require licensure of the facility under California law. 1223/14 1526 \02 \469946.4_8.13.2007 116 if certification specific to the type of facility is available from a govemm ntal agency or qualified nonprofit organization. the facility has received or will receive such certification, including, without limitation certification by O nge County under its Adult Alcohol and Drug Sobe Living Facilities Certification Program for cooperative living arrangements providing an alcohol- and drug -free environment for persons recovering from alcoholism or drug abuse_ or both. 3. The names of all Mrsons and entities with an ownership or leasehold interest in the facility, or who will Darticinatein operation of the facility. have been disclosed in writing to the City and such Mrsons_and entities do not have a Dattem or practice of operating similar facilities in violation of state or local law. 4 The operator of the residential facility has provided a list of the addresses of all similar facilities in the State of California owned or operated by the operator and has certified under penalty of priory that none of such facilities have been found by state or local authorities to be operating in violation of state or local law- and the Zoning Administrator has verifies such information. In addition to the findings rcquired by Section 20-91.035, the Planning Commission shall make the ollowing findings before_aWroving or conditionally approving an application for a use Hermit in a Residential District (Chapter 20.10) or in an area where residential uses are provided for in Planned Community Districts or Specific Plan Districts: A. The use conforms to all applicable provisions of Section 20.91A.00 been mitigated to a level of insignificance. C. The use will be compatible Nvith_the character of the surrounding neighborhood . and the addition of the use will _not change the residential character of the eighborhood, such as by creating an overconcentration of non - residential uses in he vicinity of the proposed use. The provisions of this Paragraph C regarding overconcentration shall not apply to the approval of a use permit for an existing noncodQuning use which is nonconforming only by lack of a use permit. 1223/04 1526 \02 \469946.4_8.13.2007 �\4 ATTACHMENT A `1°J THIS PAGE INTENTIONALLY LEFT BLANK i�A III. Measures Taken Since the Adoption of the Interim Urgency Ordinance A. Questionnaire Distributed by City. 1. Background. To help Staff determine the impact of group residential and short-term lodging uses, the City Attorneys Office distributed a questionnaire to residents residing in the following blocks of the City: • Location One: The 1100 and 1200 blocks of West Balboa and West Bay Avenue and 1100 block of West Ocean Front; • Location Two: The central portions of the 1800 block of West Ocean Front and West Balboa Blvd; • Location Three: Portions of the 100 blocks of 38th and one side of 39th Street; and • Location Four: The northern portions of Topaz, Agate, and Opal on Balboa Island. The four locations were selected because staff determined that the best way to determine the impacts of the group residential and short-term lodging uses was to pick specific areas where there is high density of these uses. The first three locations were selected because they had both high density of recovery facilities and short-term rentals, and residents there were likely to be in a good position to offer insight on the relative impacts of the different types of uses. The Balboa Island location was selected because it has a number of short- term rentals, but no known recovery facilities. Residents of Balboa Island were in a position to offer first -hand accounts of the Impacts of short-term renters in a different residential setting. When residents expressed a desire to have the questionnaire more widely available, the questionnaire was posted on the City website, additional copies were made available through City offices, multiple copies were delivered or distributed to residents, and the deadline for responding to the questionnaire was extended. Questionnaires, letters, emails and phone calls from residents from additional streets in West and Central Newport, Newport Heights and Santa Ana Heights were sent to the City as well. As of the deadline of 4:00 PM Monday, May 14, of the nearly 400 questionnaires distributed, 47 were completed and returned. Although questionnaires were distributed to recovery facilities in Locations One, Two and Three as well, no response was received from any recovery facility as of the May 14th deadline. Both the Planning Department and the City Attorney's Office appreciate the valuable time the residents took to fill out these lengthy and detailed forms. The information submitted by residents in this format appears to be fact- based, 4 and is credible. A large percentage of the questionnaires were returned by persons who have not communicated with the City on these issues before. 2. Summary of Information Contained in Questionnaires. Based on the questionnaires, a distinct pattern emerged in Locations One, Two and Three regarding the impact of the group residential uses. Many licensed and unlicensed recovery facilities in those locations appear to be having a daily impact on parking and traffic in the area, either from cars and vans illegally parking in the alleys behind the homes on a daily basis, or from vans and other vehicles stopping in a traffic lane in the street to pick up residents. Based on the personal observations of their neighbors, many of these facilities use their garage spaces for uses other than parking. This appears to result in a dearth of passenger loading areas, and regular short-term illegal alley parking. The group residential uses were also regularly reported as producing substantially more garbage than the surrounding residential uses, because of the density of the population. One facility is reportedly generating one commercial dumpster pickup daily, and another generates two commercial dumpsters three times per week. Smoking by facility residents of group residential uses was highlighted. In fact, in one questionnaire a respondent reported that "[The residents] all seem to smoke ... continually and unrelentingly." Since this particular respondent has facilities in close proximity on either side of his Muse, the smoke entering his house has forced him to leave windows closed that normally would remain open. This situation, as well as litter caused by cigarette butts regularly thrown on their property, was reported by most immediate neighbors of recovery facilities answering the questionnaires. Many not -so- immediate neighbors reported regular cigarette butt litter attributable to the facilities on their property as well. In addition, frequent exposrue to loud arguments and verbal exchanges (between residents, and between residents and supervising staff), foul language, and physical altercations between facility residents was also widely reported by those living near residential recovery facilities. In most locations, the most objectionable sustained noise was during the early morning, day and evening hours. With the exception of periodic medical emergency or police calls generated by one recovery facility, the majority (but not all) of recovery facilities were comparatively quiet late at night The impacts of overconcentration were not addressed in the questionnaire because many were already known, but many residents commented on the problems of overconcentration. One resident in Location One noted that he was surrounded by recovery facilities on all four sides. A resident in Location Three noted that there were six recovery facilities in his immediate vicinity, and only five owner - occupied homes in the 100 block of 39th Street. Residents responding to questionnaires noted that they had informed recovery facility managers regarding these conditions; however, this did not generally result in long -term improvement of the situation. While most (but not all) residents who complained to recovery facility staff or management were told the problem would be addressed, the problem behaviors either continued or were repeated by new residents after a brief period of Improvement. By contrast, the major complaint against renters of short-term occupancies was late -night noise. A majority of residents in Locations One and Three who addressed short-term rental uses characterized the renters as groups who came to the beach for a week of partying. Most of these residents also reported that the short-term rentals of these properties were managed by property management or real estate agencies. A number of residents reported that calls to the short-term rentals' property management agencies did not produce any improvement, and that the property management agencies were unresponsive to resident complaints. The quality of the property owner or property manager oversight and responsiveness to neighbor complaints appears to have significant impact on the impacts short-term rentals have in a neighborhood. Some residents at Location Two stated that they lived near short-term rental units that were mainly rented to families, and these residents reported a reduced Intensity of impacts that could be dealt with by direct contact with the renters. Illegal parking in the alley and late evening parties were reported at these locations, but ceased when residents drew the renters' attention to the neighborhood impacts or reported incidents to property managers. The property owners, property managers and residents in Location Four, on Balboa Island, reported a completely different situation. Not one of the 12 completed questionnaires received from Balboa Island produced a complaint about short-term renters. In general, the summer renters choosing to rent on Balboa Island were described as having no negative impact on the surrounding neighborhood. More widespread complaints from Balboa Island were impacts from construction activity, long -term parking by passengers of the Catalina Flyer, noise from commercial party boats in the harbor, and the daily summer pickups and drop - offs of Junior Lifeguards. 3. Impact by Location. The following Is a more detailed look at the case studies at each location, and selected quotes from questionnaire respondents in that area: (1) Location One. the 1100 and 1200 blocks of West Balboa and West Bay Avenue and 1100 block of West Ocean Front E - -- .... __ `0 RESIDENTIAL RECOVERY FACILITIES Staff and Services • Group residential uses appear to have on -site staff as well as staff that appeared to arrive daily from offsite at the licensed facilities. No staff were identified in the questionnaires related to unlicensed facilities. One person noted that "[Group residential staff] are quick to respond (to complaints), but changes are only temporary ... " Parking and Traffic At one location (1216 W. Balboa Blvd.), neighbors reported that illegal parking in the alley was a daily occurrence, partly due to the fact that the garage had been converted to other uses. A neighbor who complained to this facility's management about early morning noise from residents being loaded into vans in the alley got quick response from the facility's management. The van loading functions were moved to the front of the facility, on Balboa Blvd. However, other neighbors now report that the vans periodically block traffic lanes adjacent to the facility while loading residents on Balboa Blvd. • The pattern of illegal vehicle parking in the alley was reported at two other facilities in the Location One case study area. Noise Gathering outside, talking loudly, yelling, and/or arguing with other residents or staff, extensive cell phone conversations in the alleys, and vulgar language. Most respondents from Location One described the noise level as "high," and either reported that the noise went on day and night, or that it began at 7:00 AM and tapered off at 11:00 PM. Trash Neighbors described the amount of trash generated at all recovery facilities in Location One as substantially in excess of that generated by surrounding residential uses. One neighbor reported daily commercial trash pickup at 1216 West Balboa. Smoking • All respondents in Location One reported that residents at every recovery facility smoked, that cigarette butts were thrown on their property ( "on an hourly basis," one resident said) and all but two reported that smoke from the recovery facilities entered their properties. 7 Most residents reported that they and the members of their households were non - smokers, and found the second -hand smoke very bothersome. Even the one Location One respondent who stated that a member of his household smoked objected to the volume of smoke entering his house from the neighboring recovery facility. A number of neighbors keep their windows shut as a result. • One resident found smoldering cigarette butts on his property near the gas meter which he attributed to residents of the recovery facility next door. Another reported a fire had occurred at the 1216 West Balboa recovery facility and expressed concern for the safety of the 29 recovery facility residents. Resident Conduct • Residents objected to vulgar language, inappropriate attention to female neighbors, and recovery facility residents with apparent unstructured time wandering unsupervised throughout the immediate neighborhood. • One neighbor reported being approached by persons still under the influence who were seeking a recovery facility. Another reported a late night ambulance call after a recovery facility resident overdosed. Crime • One resident discovered recovery facility residents smoking pot on his property. Other • Another resident reported that when he asked a recovery facility manager where he was taking a plate of food, the recovery facility manager told him that one of the former recovery facility clients had relapsed and had been removed from the recovery facility. Since the former facility client was from out of the area and had no resources, he was living in a Newport Beach park nearby. SHORT -TERM OCCUPANCIES Noise and Resident Conduct • Respondents at Location One addressing short-term occupancies described the noise from the vacation rentals near them as worse than the noise at the recovery facilities, and described the property management agency managing the properly as unresponsive. Vacation rental noise appeared to offend mainly in the evening and late -night hours. E:3 One neighbor noted that, for his property, rental property residents returning home late at night after area bars closed created more Intrusive late -night disruptions than recovery facilities. Parking — some issues reported but not described. Trash - in excess of that produced by surrounding long -term residents. OTHER COMMERCIAL USES IN NEIGHBORHOOD Several questionnaire respondents from this area reported that they worked from home. No complaints have been received by the City about the impact of the respondents' commercial activities in their residential neighborhood. Therefore, it is reasonable to assume that these business activities are being conducted without external impacts on the surrounding residential neighborhood, as contemplated by the City's home occupation ordinance. (ii.) Location Two: the 7800 block of West Ocean Front and West Balboa Blvd. RESIDENTIAL RECOVERY FACILITY Staff and Services Staff lives onsite at this recovery facility, and more staff arrives daily, including an employee who has described herself to neighbors as the receptionist, and a house manager. The exact number of staff is unknown. However, neighbors report that large numbers of persons (status unknown) either are brought to the recovery facility, or return to the recovery facility, each morning. Office functions appear extensive, based on resident - reported daily visits from UPS. Fedex deliveries are reported one to two times daily. A neighboring resident interviewed the block's regular mailman, who reported that this recovery facility received so much mail that he made a daily separate trip in the morning just to deliver this facility's mail, and returned later in the afternoon with the rest of the route's mail deliveries. • Southern California Produce delivers food two times a week, and Sysco delivers food to the recovery facility two times a week. Laundry and linens are taken away from and returned to the recovery facility by a commercial laundry service. • Because of shortage of onsite parking (three onste parking spaces), delivery and service vehicles park illegally in the alley behind the facility. 0 Massage services appear to be provided onsite, and an employee identified as a cook lives onsite. Parking and Traffic • Parking and traffic infractions from commercial service pickups and deliveries are detailed above, and residents emphasized that they generally at least partially block traffic. Residents, and /or staff are brought to and from the site more than once a day in vans. Some vans park onsite, some park illegally in the alley behind the house on a short -term basis while loading and unloading individuals. One neighbor reported six vehicles associated with the recovery facility parking onsite each day. Staff appear to park on adjacent streets and walk to the recovery facility as well. Noise • 'It's a din; one resident reported. Residents at least two houses away from the recovery facility can hear the morning roll call and evening meetings. Noise begins at 7:30 AM or 8:00 AM and continues until around 10:00 PM. • During the day, the movement of the recovery facilities occupants up and down the exterior stairs was described as "constant." During a one -hour period, a neighbor counted 151 trips made up and down the recovery facility stairs by its residents. • Residents describe regular Friday night meetings at the recovery facility, with loud applause, stomping of feet and yelling. • One next -door neighbor provided photos of the interior of their family's house, with six -inch soundproofing material installed where windows and doors adjacent to the recovery facility were located. Trash • Waste Management performs commercial trash pickups, removing trash from two full-sized dumpsters three times a week. Smoking • Complaints about smoking from this location have been ongoing for at least the past four years. The facility has apparently attempted to address the complaints by not allowing smoking outside on the facility's premises, but residents still report daily second-hand smoke and cigarette butts generated by the recovery faciliiWs residents and staff. Immediately adjacent neighbors and more distant downwind neighbors report that they 10 1 a� keep their windows on the recovery faciky's side of the building shut, to minimize intrusions from smoke and noise. Smoking on the beach by recovery facility residents is also reported. Resident Conduct • Neighbors report that the management of this recovery facility appears to be making an effort to improve the recovery facility's relationship with the surrounding neighborhood. Management has recently escorted recovery facility's residents throughout the neighborhood picking up trash, and cigarette butts are picked up upon neighbor request. Neighbors report regular use of audible profanity, usually directed at others within the recovery facility. Neighbors feel the homes immediately next door to the recovery facility have become next to uninhabitable, and have not attempted to rent them. The only full -time resident of the oceanfront homes Immediately adjacent to the recovery facility does not use the door adjacent to the recovery facility, but has entered through a first -story window on the other side of the building for at least three years. Crime On May 4, 2007, residents of the 1900 block of West Ocean Front had to call for police assistance when a recovery facility resident ran from the facility, smashed a patio table at one residence in the 1900 block, and threw a table leg at the window of the reporting residents property. It is unknown at this time whether the police were able to locate the recovery facility resident. SHORT -TERM OCCUPANCIES Staff and Services • Cleaning services arrive once a week for a few hours during weekly tenant shift. Cleaning staff park legally on rental facilities' onsite parking and do not block traffic. Noise, Parking and Resident Conduct While there were several short-tern rentals on the 1800 block, long -tern residents report they produce comparatively minor impacts. At one recovery facility, new weekly renters temporarily block alley access during unloading every week, but do not repeat the pattern when told by neighbors that this is not an acceptable practice. Complaints about nighttime gathering noise have been handled promptly by the property management agency or personal contacts by neighbors. 11 V)- - On the 1900 block, by contrast, a resident stated that property management firms have been at best "grudgingly responsive" to complaints about noise, trash and parking at two short -tern rental locations near his property. As this resident described it, "Each Saturday in the summer 2 noisy, raucous groups of strangers move into each short- term facility to party for a week! The resident also reports that at least three to four times per week, weekly renters park in the alley or behind the garages of long -term residents, blocking resident egress and traffic. Second hand smoke and some cigarette butt litter were also reported on the 1900 block. OTHER COMMERCIAL USES None reported, but neighbors who were asked said they had no impacts from use of the beach and sidewalk in their Immediate vicinity for City recreation camps and activities. (ill.) Location Three: 38th and 39th Streets RESIDENTIAL RECOVERY FACILITIES Staff and Services • Some recovery facilities have staff living onsite, some do not. In two locations, staff has been responsive to neighbor complaints. In two others, staff has been notably unresponsive. • Transportation services via recovery facility vehicles appear to be provided at almost all recovery facilities. • Onsite services provided at three recovery facilities include daily cleaning services. Parking and Traffic • One accident has been attributed to a recovery facility s van blocking traffic on 39th Street while dropping or picking up recovery facility residents. • Traffic blockages on 39th Street due to recovery facility vehicles stopping In front of their facilities were reported to be frequent. • Residents report that at an adjacent sober living facility, as many as 10 vehicles can be associated with the residence (which has trwo onsite parking spaces) at any given time. 12 Noise Reports of noise from the recovery facilities varied, depending on the facility operators. Two facilities on 39th Street appeared to be particularly egregious in the amount of noise and profanity used by its residents, and in the late hours such noise is reported. Loud arguments and yelling between recovery facility residents was also reported. Trash • Trash produced by the recovery facilities was generally reported to be extensive by all residents responding in this location, and the high number of resulting flies was mentioned more than once. Smoking • Smoking was reported to be almost universal at the recovery facilities. One resident reported counting 25 individuals on a recovery facirdy balcony smoking at one time. The same resident reports that he found a burning AA 12 -step book in his trash can. • Another (non - smoking) resident reported being asked repeatedly for cigarettes and once for beer by recovery facility residents. • Windows are reportedly kept closed, and some neighbors do not use their patios because of smoke and noise. Resident Conduct • Conduct varies according to recovery facility. Two recovery facilities were identified as having residents with consistent problem behaviors. Recovery facilities which neighbors had fewer objections to also had their share of complaints about loud profanity. Crime One resident reported finding syringes and other drug paraphernalia in the side yard between his property and the sober living facility next door, as well as witnessing what he believed were drug sales in the alley behind that same recovery facility. That resident also personally witnessed a resident at another recovery facility on 39th Street exposing himself the offending party was removed from the facility when the resident reported the behavior to the recovery facility's management. 13 aA SHORT -TERM OCCUPANCIES Noise and Resident Conduct • The main impacts reported for short-term occupancies in Location Three were that two nearby properties were being used as short-term rentals, an excessive amount of noise was produced by parties at those locations, and the property management company In control of those properties "will not respond to noise complaints." (iv.) Location Four: Balboa Island (portions of Opal, Agate and Topaz) SHORT -TERM OCCUPANCIES No Impacts Reported • Of the twelve questionnaire responses received from Balboa Island by the deadline, there was not one complaint about short-term renters. • Residents, property owners and property management firms were consistent in their message that no negative impacts were generated on Balboa Island from short-term renters. • Noise produced by short-term renters was described as anything from nonexistent to "music, conversation and laughter." Any complaints, residents reported, were promptly handfed by the owner or property management firm to the complainant's satisfaction. • Cleaning and maintenance services and parking availability were described as similar to that used at surrounding long -term residences. OTHER COMMERCIAL USES Noise, Traffic and Parking Questionnaire respondents had a number of complaints about other commercial impacts: traffic and noise issues associated with new home construction on the island, passengers on the Catalina Flyer parking their cars on the island and leaving them there up to a week, parents of Junior Lifeguards dropping off and picking up their children, and noise from commercial dinner cruise yachts in Newport Harbor. B. Disturbance Advisement Cards. During 2006, the Newport Beach Police Department distributed 501 disturbance advisement cards based on loud parties at residences in the City. 14 4.15 \-) D ATTACHMENT B �a� THIS PAGE INTENTIONALLY LEFT BLANK 41 Newport Beach Planning Commission Meeting . June 211 2007 Requested Revisions to the Proposed Residential Care Facilities Ordinance `P F , 1. The Ordinance must address Residential Care Facilities that are not licensed by the State. A: The proposed Ordinance is silent as to unlicensed residential care facilities for 6 or fewer residents. i) No state oversight. ii) Well- documented public health, safety and welfare issues associated with unlicensed residential care•facilities: (1) Smoking — secondhand smoke and cigarette butt trash (a) Neighbors are forced to close their windows (2)Noise — outside gatherings, organized meetings, occupants (3) Traffic - staff vehicles, vans transporting residents, increased mail and package delivery, food delivery, laundry and linen delivery (a) Narrow streets (b) Limited on -street parking (c) Off - street parking requirements based on single family occupancy not adult group living arrangements (d) Illegal parking due to limited parking availability (4) Trash (a) commercial trash pickups (b) syringes and other drug paraphernalia (5) Disabled persons also seek non - institutional settings; over - concentration creates an institutional setting B. Request: Revise the Ordinance to require new and existing unlicensed residential care facilities for 6 or fewer residents to obtain a Conditional Use Permit ( "CUP "). C. Other government entities regulate these facilities: Examples: (1) rZ vtt�e' allows unlicensed facilities only, in its lifelong learning district and requires a CUP. (Irvine Municipal Code, § 3-37 - 39.8:1.) (2) The City of Murrieta requires a CUP for sober living and parolee- probationer living arrangements for 6 of fewer occupants and prohibits these uses for more than 6 occupants. ( Murrieta Municipal Code, § 16.44.150 (I).) (3) Unlicensed facilities in the City of Dana Point are prohibited in certain residential districts and, where allowed, require a CUP. (laana Point Municipal Code, § 9.09.020.) Page 2 of 6 06 2. The definition of "Integral Facilities" is incomplete. A. The proposed definition of "integral facilities" does not include all types of residential care facilities. B. Request: Include all residential care facilities in the Oefmition: i) Regardless of size ii) Whether state licensed or not ,iii) Whether in residential or commercial zone C. The definition of "integral facilities" depends in large part on what is considered "treatment ", but this term is not defined. D. Request: Add definition of "Treatment" that includes: i) Care and treatment such as the provision of educational, cougseling, transportation and services ii) Treatment provided both on -site or off -site iii) Dispensing of controlled substances such as methadone by means other than through retail stores . iv) Treatment conducted by entities under common control ownership or management including affiliates 3. All Residential Care Facilities (regardless of size and whether state licensed or not) need to register with the City. A. In order to enforce the Ordinance, the City must know that the Residential Care Facilities exist and where they are Iocated. B. Request: Add a registration requirement for all Residential Care Facilities that requires the following information be provided: i) Location ii) State license number, if applicable iii) Owner, operator and affiliated entities iv) Description of operation v) How many. occupants and staff vi) Permitted length of stay vii) 24 -hour contact person viii) List of permits ix) Certification under penalty. of perjury that the Residential Care Facility has all required permits and licenses x) Affirmation that operator will promptly provide the City with any updates and status Page 3 of `rb l 4. The proposed Ordinance fails to address the existing over - concentration of Residential Care Facilities. A. Over- concentration of Residential Care Facilities exists in impacted Districts: i) Balboa Peninsula (including Peninsula Point), Lido Isle, Newport Heights, West Newport, and Corona Del Mar B. City has the highest number of licensed and unlicensed residential group homes in Orange County — 2.63 licensed alcohol and drug treatment beds per 1,000 residents (average is 0.52) i). City has over 14 percent of all licensed residential beds in the County, when the City has less than 2.8% of the County's population. (1) 29% of all new licenses ii? the State are in NewpwT Beach. (2)94% of these new licenses are in the-impacted Districts. (3) Over 100 licensed apd unlicensedAre in impacted Districts. C. Well- documented public health, safety and welfare issues are associated with over - concentration of residential care facilities. (See Section I.A. above.) D. Urgent that the City address this issue immediately. i) Rapid growth unchecked — In 2003 there were 5 state licensed rehabilitation facilities in Newport Beach. In 2007, there are 24 with 4 additional state license decisions pending. E. Request: Address over - concentration in the impacted Dig as by . requiring: i) All New and Existing Residential Care Facjillties in the impacted Districts be subject to.the dispersal requirement of 1,000 feet from arty other residential care facility. tP (1) Whether permitted by right or with a Cli •(2) Whether or not State licensed ii) Allow for Residential Care Facilities to request a reasonable accommodation coedit age.germit process th pal is notice and hearing. F, Other cities have dispersal requirements. Examples: i) City of Riverside has a 300 foot separation requirement between any two different or same type of group.housing, transitional shelter, permanent emergency shelter; or drop in center. The City of Riverside requires a 1000 foot separatiofi where any of the uses Page 4 of 6 � 32-- is a parolee /probationer.horge. (Riverside Municipal Code, §_ 19.64.040(S).) ii) Munieta requires a 1,000 foot separation requirement between any rooming and boarding houses, parolee- probationer home or sober living home. (Murrieta Municipal Code, § 16.44.150(l)(2).) Also, cannot be located within 1,000 feet of a public or private school and other uses G. California Attorney General concluded that cities may prohibit, limit or regulate the operation of boarding type houses in low density residential zones in order to preserve the residential character of the neighborhood. (86 Ops. Cal.Atty.Gen 30 (Mar. 19, 2003).) H. Jxford House v. City St. Louis (8th Cir. 1996) 77 F.3d 249: Court upheld limits on the numbers of residents in a group home where rationally based on a legitimate interest in decreasing congestion, traffic, and noise in residential areas. I. Familystyle of St. Paul, Inc. v. City of St. Paul (8th Cir. 1991) 923 F.2d 91: Minnesota required new group homes for the mentally handicap persons.to be located at least a quarter mile (1,300 feet) from an existing program. Court upheld the dispersal requirement finding that it was necessary to ensure that the mentally handicapped persons would not be forced into enclaves of treatment facilities that would replicate and thus perpetuate the isolation resulting from institutionalization. 5. The proposed Ordinance does not specify the criteria that the City. Will use to make land use decisions for Residential Care Facilities. A. The Ordinance should disclose the specific criteria that the City will ,uw t� --gra t..con ditional use permits for Residential Care Facility. kT- tteauest. Incorporate specific requirements such as those in Riverside Municipal Code, (1) C,lieht profile (2) Number of occupants k') Hours of operation (4) Term of client stay. (5) Support services (6) Staffing levels . (7) Rules of conduct and management plan (8) Potential impacts to adjoining properties or land uses (9) Hazards to occupants (i.e., locating next to a liquor store) Page 5 of 6 )-�3 (10) Availability of public transportation (11) Accessibility to necessary support services (12) Over concentration (13). Compatibility with surrounding uses (14) Sufficient on -site parking (15) Adequate indoor and outdoor open areas (16) Setbacks (17) Signage 6. The proposed Ordinance is silent regarding transition for existing. Residential Care Facilities. A. Specific direction must be provided as to how the proposed Ordinance will be implemented for existing Residential Care Facility uses. B. Rggnest: Require existing Residential Care Facilities to: i) . Register within 30 days of the Ordinance adoption. ii) Submit CUP applications and have use decisions made by the City within 180 days after registration. iii)No. grandfathering and no exemptions. O kk ATTACHMENT C 135 THIS PAGE INTENTIONALLY LEFT BLANK 13L° X30 WEsT nEwPORT BEACH AssociATIon President Emeritus: POST omm BOX 1471 Alan Si(cock NEWPORT BEACH, CAUFORRU 92589 -0471 . www.weahrawportorg President: Pan! Watkins July 5, 2007 West Oceanfron( 7741556 -0800 City of Newport Beach Was President: Mayor and City Council Elliot Leonard Planning Commission wear Oeetu#ivnt 3300 Newport Boulevard 9491515-4911 Newport Beach, California 92663 Secretary /Membership.• . Chris Garber Lida Peninsula Resort Re: Revisions to City Ordinances Concerning Drug/Alcohol/Etc. Homes 9491246.8383 Dear Sirs: HF6r0lIQn: �.•. Mike Johnson NmnberedSrreets This is to voice the opinion of the West Newport Beach Association (WNBA) 9491642.3125 concerning the Code amendment 2007 -005 addressing the group occupancies 7ieasuren (e.g., drug, alcohol, etc. rehab facilities) and short-term lodgings {PA 2007 -112) Ann Krueger presently being considered by the Planning Commission. In general, the opinion Newporrs6ores of the WNBA is that there is an over - concentration of group homes in Newport 9491642 -2646 Beach, specifically in the residential neighborhoods of West Newport, Balboa Directors: Peninsula, Lido Isle, and Newport Heights. The citizens of Newport Beach have Crarg Barley been and now are being adversely impacted by this over- concentration which is Absentee Owners Liaison changing our residential neighborhoods and the frequently - visited mixed use 9491293 -4630 area of Cannery Village. Sharon Boles Superior Are. Liaison Since 2004 when the City (pursuant to the advice from the City Attorney) 949645 -4752 terminated the requirements of a conditional use permit in order to operate a Ken Bryant group home, the number of these homes (all of which are related to Numberedstreets drug /alcohol users and former users) have proliferated in the Newport Beach 9491644.6266 R -1.5 and R -2 zones. This has caused adverse impacts upon our community, Mary Bryant increased density, public and private nuisances, increased health and safety Numbered Streets hazards, and increased transients and crime. We now have over 100 homes in 9491644.6266 this residential coastal neighborhood of approximately 1.5 miles in length. Joann Larson Numbered Streets It should be noted that (1) the real estate transfer disclosure law (Cal Civil 94916504533 Code 1102, et seq) requires a seller of real property to disclose neighborhood Jim Muller noise problems and other nuisances which would result in a comparatively Newport Island decreased sales price; (2) State law can and should be interpreted not to limit the 9 49193 3 -982 7 ability of a city or country to enforce local ordinances to protect its citizens from Ann O•Fbmn controlling and limiting these uses (See H & S Code section 15663); (3) State law Balboa Coen should not be construed to prohibit the application of any local ordinance to a 94916454233 residential care facility which deals with health and safety, building standards, Euercfle Phillips environmental standards or any other matter within the jurisdiction of the local Newport shores public entity (See H & S Code 1566.3); (4) the State Legislature has declared that 9491650-7528 it is the policy of this state that each county and city shall permit —the Robert Bush development of sufficient — residential care facilities as are commensurate with Rirer/Neprune local need (See H & S Code 1566); and (5) other cities and counties, including the 9491645 -2977 City of Murrietta, have passed strict local ordinances protecting its.citizens and Barbara Ibibautt requiring a conditional use permit for p-Y residential care facility, including Newport Shores those serving or renting to 6 or fewer persons. 9491642 -5843 X30 City of Newport Beach Mayor and City Council Planning Commission July 5, 2007 Page -2- We request that the following provisions be considered for inclusion in the City's new ordinance protecting its citizens from all residential care facilities including those renting to 6 or fewer persons: (1) REGISTRATION: City registration for all group homes. (2). 1000 FEET: At least 1000 feet between each licensed and unlicensed facility. (3) OVER-CONCENTRATED AREAS: No new group home facilities in already over- concentrated neighborhoods'. (4), P- MGRALFACRXITES: Integral facilties (common /affiliated ownership or management) considered as one. (5) SCHOOL /PUBLIC FACILITY PROTECTION: No group homes within 1000 feet of any school, day care facility, public park, or senior citizens facility. (6) ALTERNATIVE SENTENCING PROGRAMS: No probationer or parolee can be housed in alternative sentencing programs, unless there is a determination that the probationer /parolee is from Newport Beach (H & S Code sec. 1566). (7) CONDITIONAL USE PERMITTING: All group homes to be subject to Conditional Use Review and Permitting, including public review. (8) CONFORMANCE wmi DENSITY: Reasonable use should not impose density or health and safety impacts adverse to surrounding neighborhoods. Density should not exceed that of already established standards. (9) NOTICE TO OWNERS /OCCUPANTS: Notice should be provided by the City to all owners /occupants within 300 feet of an existing or proposed new facility. We believe that the law and reasonableness required that neighbors in the immediate area be given notice and an opportunity to be heard regarding any significant change of this nature in their neighborhood. (10) GRANDFATHERING: All group homes, including existing and newly proposed, should be required to undergo use review and permitting. No automatic grandfathering; existing non-conforming uses should be given reasonable notice of their termination. (11) AMORTIZATION: Existing non - conforming uses should be terminated /amortized over a reasonable amount of time. 1: , r 03 City of Newport Beach Mayor and City Council Planning Commission July 5, 2007 Page - 3 - (12) STRICT ENFORCEMENT: Noncompliance with required use, building or other City codes by any facility should result in citation. Failure to comply with requirements after notice should result in fines and closure. The City of Murietta passed Ordinance 382 -07 on February 6, 2007, requiring a conditional use permit which addressed this problem requiring site location criteria and development standards. We respectively request that the City of Newport Beach analyze this Ordinance and adopt parallel provisions where appropriate. �. Thank you for your consideration of this serious matter. West Newport Beach Association By: Paul K. Watkins, President cc: WNBA Board "1 L I ATTACHMENT D \k\ THIS PAGE INTENTIONALLY LEFT BLANK �4 Page 2 of 3 - - -- Original Message--- - From: robert rush <mish@usreaitygroup.com> To: paul @lawfriend.com; shmialand @earthlink.net; scott.peotter @taxfighter.com; bhillgren @cox.net; rhawkins @earthlink.net; eaton727 @earthlink.ne4 jeff.cole @cushwake.com;'Donald L. Webb' < don2webb @earthlink.net >;'Edward D. Selich' <edselich @adelphia.net>;'Keith D. Curry' <curryk @pfm.com >; 'Leslie J. Daigle' <lesliejdaigle@aol.com >; 'Steven Jay Rosansky' <parandigm @aol.com >;'Michael F. Henn' <mhenn527@hotmail.com >! ;'Nancy Gardner' <garduerncy @aol.com >; %iff, Dave <DKiff@city.newport- beach.ca.us> Cc:'Ann O'Flynn' <annofly @gsmail.com >;'Mary S. Bryant' <mskabryant@sbcglobal.net >''Ann Krueger' <kruegerann@sbcglobal.net>; Barbara Thibault' <bvthibault @adelphia.net>;'Chris Garber' <garber chris @allergan.com >;'CYaig Batley' <craig @burrwhite.com >; 'Everette Phillips' < everette. phillips@sourceglobally.com >;'F. Elliot Leonard' <feleonard@adelphia.net>;'Jim Miller' <jdmlatty@hotmail.com >;'Joann Larson' <jolarson420@netzero.net>;! 'Ken Bryant' < KennethBryantLaw @sbcglobal.net>;'Mike Johnson' < Mike5926@sbcglobal.net>;'Sharon Boles' < Sharon .Boles @adelphia.net >;'Denys Oberman' <d.oberman@obermanassociates.com> Sent: Fri, 6 Jul 200712:19 pm Subject: RE: Revisions to City Ordinances Concerning Drug/Alcohol/Etc. Homes I would like to suggest three more items be added to the list included in the WNBA Letter concerning "Revisions to City ordinances Concerning Drug /Alcohol /Etc. Homes "..... 1 - Protection of Newport Beach's 5P Zones. Specific example is SP6 originally. formed for Marine, Retail and related uses that encourage the Public's access and patronization. The SP6 zone (Cannery Area) is now overfilled with Rehab Use (at least 10 -12 offices andlor treatment facilities and the City of Newport Beach has resorted to "bifurcation of use" as the excuse du jour to'justify their inaction to date. 2 - Protection of Newport's Retail Villages ..... ie, Lido Village, Cannery Village or Balboa Main Street Village, etc.... where Rehab use now controls retail storefront running counseling out of them. This clogs the roads and walkways with 20+ bikes on a regular basis.... and further detracts from an already struggling area that has for years been a popular destination for tourists and locals alike. 3 - Protection of Newport Beach Public Beaches where large groups of Rehab patients are being shipped into the City from other areas and overwhelming the beach facilities at the benefit of the Rehab operators and to the detriment of the locals and general public who frequent these beaches. Despite residents complaints of smoking, noise and vulgarities, not to mention the monopolization of beach facilities such as volley ball courts etc, ...NB. Police are not properly enforcing non smoking or public nuisance laws and have gone as far to now advise beachgoers who have complaints to "go elsewhere ........ believe it or not.... 4 - Protection of Newport Beach Communities from newly emerging "Hybrid Homes" where a Group Home either a) claims handicap privilege as it caters to druglalcohol 7/6/2007 Page 3 of 3 addicts considered to be handicapped by legal definition, but instead the Group Home operator houses non - handicapped persons such as probationers and parolees to fill beds, in absence of needy druglalcohol patients. or b) where a facility is used only part of the year as a drug rehab and part if the year as a summer rental. Any revision of ordinance Wording not considering these three areas above will be considered by the Concerned Citizens of Newport Beach as incomplete and unacceptable. Sincerely, Bob Rush Concerned Citizen Of Newport Beach From: Paul K. Watkins [mailto:paul @lawfriend.com] Sent: Thursday, July 05, 2007 2:54 PM To: strataland @earthIInk:net scottpeotter@taA(ihter com; bhillgma&G x.net; rhawldns(a)earthlink net; eato027(rbearthlink.net; ieff.cole@cushwake.com; Donald L. Webb; Edward D. Selich; Keith D. Curry; Leslie]. Daigle; Steven Jay Rosansky; Michael F. Henn; Nancy Gardner Cc: Ann O'Flynn; Mary S. Bryant; Ann Krueger; Barbara Thibault; Chris Garber; Craig Batley; Everette Phillips; F. Elliot Leonard; Jim Miller; Joann Larson; Ken Bryant; Mike Johnson; Robert Rush; Sharon Boles Subject: Revisions to City Ordinances Concerning Drug /Alcohol/Etc. Homes Hi to Ali: Attached please find a scan of a letter from the West Newport Beach Association pertaining to Amendment No. 2007 -005 (Group Occupancies) and PA 2007 -112 (Short Term Lodging). Should you have any questions, please feel free to contact me. Best regards, Paul K. Watkins, President West Newport Beach Association AOL now offers free email to everyone. Find out more about what's free from AOL at A4L -x—,D 7/6/2007 �a i ATTACHMENT E `A5 THIS PAGE INTENTIONALLY LEFT BLANK %a6 Data Analysis Unit Department of Conactione and Reaabifila6on Estimates and Statistical Analysis Section State of California Offender Information Services Branch Apr112007 TABLE 1 TOTAL FELON PAROLEES RETURNED TO CALIFORNIA PRISONS NUMBER AND RATE* PER 100 AVERAGE DAILY POPULATION (ADP)"` CALENDAR YEAR 1976 THROUGH 2006 CALENDAR YEAR AVERAGE DAILY FELON PAROLEEIPAL POPULATION" TOTAL FELON PAROLEES RETURNED PV -RETs TOTAL FELON PAROLEES RETURNED WITH A NEW TERM (PV -WN Ts) TOTAL FELON PAROLEES RETURNED TO CUSTODY WITHOUT NEW TERM (PV -RTCs NUMBER RATE* NUMBER RATE' NUMBER RATE' 1976 15,302 2,233 14.6 1,255 8.2 978 6.4 1977 14,428 2,031 14.1 1,243 8.6 788 5.5 1978 12,401 2,585 20.6 1,574 _ 12.T 1,011 8.2 1979 10,455 2,558 24.5 1,362 13.0 1,196 11.4 1980 11,061 2,995 27.1 1,393 12.6 1,602 14.5 1981 11,863 3,865 32.7 1,772 14.9 2,113 17.8 1982 13,609 6,009 44.2 2,231 16.4 3,778 27.8 1983 18,223 8,435 46.3 3,160 17.3 5275 28.9 1984 24,390 11,409 46.8 3,988 16.4 7,421 30A 1985 28,888 16,311 56.5 5,042 17.5 11,269 39,0 1986 33,615 23,849 70.9 5,790 17.2 18,059 53.7 1987 39,876 31,597 79.2 6,390 16.0 25,207 63.2 1986 50,054 42,424 84.8 8,410 16A 34,014 65.0 1989 58,731 51,016 86.9 11,040 18.8 39,976 66.1 1990 69,164 54,379 78.6 14,070 20.3 40,309 58.3 1991 80,905 57,344 70.9 16,010 18.8 41,334 51.1 1992 87,940 52,871 60.1 17,939 20.4 34,932 39.7 1993 90,628 54,681 60.3 19,150 21.1 35,531 392 1994 93,536 62,480 66.8 17,009 18.2 45,471 48.6 1995 102,181 69,884 68.4 17,454 17.1 52,430 51,3 1996 109,659 75,419 68.8 17,435 15.9 57,984 52.9 1997 115,299 85,497 74.2 17,593 15.3 67,904 56.9 1998 122,961 87,645 71.3 17,385 14.1 70,260 57.1 1999 129,709 87,729 67.6 17,064 13.2 70,665 54.5 2000 134,821 89,346 66.3 16,016 11.9 73,330 54.4 2001 136,932 88,806 64.9 14,531 10.6 74,275 54.2 2002 136,133 85,551 62.8 14,363 10.6 71,188 52.3 2003 131,693 78,058 59.3 15,703 11.9 62,355 47.3 2004 128,501 76,565 59.6 17,840 13.9 58,725 45.7 2005 131,087 80,935 61.7 19,755 15.1 61,180 46.7 2008 1 133,118 1 89,8721 67.51 20,777 1 15.61 60,0951 51.9 Note: Components may not add to totals due to Independent munding. *These-ciates should not he considered to he CDCs rectdlv(sm rates. ""The Average Deily Felon Pamlee/PAL Population (ADP) Includes the average daily population of felon parolees supervised in Cefrfomia. Plus the average dally feon parole" -large (PAL) population. Cefifomia releases to parole Witt, were under supervision in other step and absconded from supervision were Included In the PAL population prior to 1990 - Beginning in 1986. the Total Felon Parolees Returned to Custody <Mthout a New Term includes parolees who were returned to CDC custody pending a revocatlon hearing PVRET -2 \1 \A` ATTACHMENT F `A� THIS PAGE INTENTIONALLY LEFT BLANK o 7 From: 6443139 Page: 215 Date: 8/3/2007 4:19:24 PM .., .. _ _ .... . CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY 01z Robin Clauson, City Attorney March 8, 2007 Ms. Joan Robbins VIA EMAIL AND Manager, Licensing and Certification REGULAR U.S. MAIL California Department of Alcohol and Drug Programs 1700 K Street Sacramento, CA, 95814 Dear Joan: On behalf of the City, the residents of Newport Beach, and the residents of the licensed alcohol and drug abuse recovery and treatment facilities currently operating within the City, I request that ADP deny the license applications pending in Newport Beach. I also request that ADP deny future new license applications in Newport Beach for the following reasons: 1. Local need for recovery services In Newport Beach has been met, and probably exceeded. Newport Beach's fair share of regional need has been substantially exceeded. ADP's charge for licensing alcohol and drug recovery and treatment facilities is based on the policy stated by the California State Legislature in Health and Safety Code § 11834.20: 'The Legislature hereby declares that It is the policy of this state that each county and city stall permit and encourage the development of sufficient numbers and types of akoholism or drug abuse recovery or treatment facilities as are commensurate with local need." Cal. Health $ Safety Code § 11834.20 (emphasis added) Currently available evidence indicates that the local need for alcohol and drug abuse recovery and treatment facilities in Newport Beach has been met, and possibly exceeded. .• Newport Beach already has 2M licensed recovery beds per thousand residents, the highest ratio of any city in Orange County. Newport Beach is home to only 2.7 — 2.8% of the total population of Orange County, but is host to approximately 14.8% of all licensed residential beds in the County. Based on the January 8, 2007 list of licensed facilities posted on the ADP's wabsite, Newport Beach has at least 22 licensed residential alcohol and drug treatment and recovery facilities. Those facilities provide a•total of 219 licensed residential beds, and are licensed for a total occupancy of 244 individuals. We. are In the process of researching other Indicators of the City's local need for recovery services, and are seeking statistics on the number of persons per thousand in the population who actively seek or are placed In recovery during a given time period. Based on the disproportionately generous Supply of licensed and unlicensed recovery beds available in Newport Beach, however, it is apparent that our residents already have ample opportunities for housing and treatment in their local area 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach. California 92658 -8915 Telephone: (949) 644 -3131 • rax: (949) 644 -3139 • www.clty.newport- beach.ca.us L 1 This fax was received by FAX -CNB on Line 2 from 6443139 J From: 6443139 Page: 315 Date: 8!3!2007 4:19:24 PM 'Joan Robbins March 8.2007 Page 2 during recovery. We believe that the City of Newport Beach has not only met its local need, but has also exceeded any fair share of regional need the City should bear. Of the 34 cities In Orange County, 18 have no ADP41censed residential beds at all, and six cities have only one or two licensed residential recovery facilities. In addition, there are a high number of unlicensed residential facilities and outpatient programs currently operating In Newport Beach. Newport Beach residents have gathered information that indicates there may be as many as 100 sober living facilities in addition to the licensed facilities, and Orange County Probation has confirmed that these numbers are probably not exaggerated. Guidelines provided by ADP officers indicate that many of these unlicensed facilities are providing services that make them subject to licensure by either ADP or Department of Social Services Community Care Uoensing. Federal fair housing laws require that cities and states make exceptions from their established laws When necessary to provide disabled residents with access to housing. The City of Newport Beach has always respected this protection, and has routinely accommodated the needs of the disabled. As a result, there are abundant housing opportunities for handicapped residents, including those in recovery from alcohol and drug dependencies, already in existence in Newport Beach. Unfettered grants of licenses for more facilities are unnecessary to meet existing need. 2. Granting currently pending license applications Is not necessary to meet local need for recovery services, and can cause irreparable harm to specific residential neighborhood. a. Local overview — In Newport Beach, all but one of the ADP- Rcensed facilities are located on or immediately adjacent to a narrow. 2.5 mile stretch of the city within West Newport and the Newport Peninsula. Over half of the licensed recovery facilities are concentrated within a mile of each other. One of our largest facility operators advertises that it has 30 homes (licensed and unlicensed) in a linear 1.3 mile area of West Newport Publicly available information on several of the facilities' marketing practices, as well as reports by Newport Beach recovery facility residents,' indicate that a high percentage of the residents in these 22 facilities are not Newport Beach residents, and many are residents of other states brought to California specifically to enter the Newport Beach recovery facilities. If true, Newport Beach's limited housing stock is being used by commercial organizations to provide accommodations and services in excess of our local need, and may be limiting available housing and services to address our local need. National need for recovery services far exceeds the capacity of what our city can absorb, and could overwhelm our residential neighborhoods and change them forever. b. Morningside Recovery —112 A and B 39"' Street - Based on ADP licensing numbers and census data, we estimate that on the city block that begins across the street from the proposed Momingside Recovery facility (39"' — 40th Street), 30% of the block's population IS already housed In licensed recovery fac €sties. Between four and five sober living homes already present on the same block add to the conow trat€on of recovery facilities and create an environment that Is not consistent with the goats of community-based recovery. Adding an additional licensed facility at 112 39"' Street would exacerbate this situation, and will not add a commensurate benefit to the residents in Newport Beach in need of recovery services. 'Submitted either as complaints or during a series of City hearings In 2004. This fax was received by FAX -CNB on Line 2 from 6443139 1 5�L- From: 6443139 Page: 415 Date: 813/2007 4:19:25 PM Joan Robbins March 8, 2007 Page 3 in addition, Momingside Recovery has already displayed disregard for the zoning restrictions of the City of Newport Beach and the licensing restrictions of the ADP during its start-up phase. Although it was not yet in possession of a license from ADP, Momingskde Recovery moved residents Into the property at 112 3901 Street in Fall, 2006. Fire clearance provided for Momingside's ADP license application was for six residents. The Newport Beach Fire Marshall received a credible complaint that there were eight beds In the facility, and that two beds were temporarily removed from the facility in honor of an announced ADP inspection. In December 2006, Newport Beach Cade Enforcement officers inspected 112 39' Street, confirmed that there were eight residents, and cited Momingside Recovery for exceeding six residents without the proper zoning clearance. Momingside Recovery is applying for a license for each unit in a duplex building. Integral facilities with over six residents tend to develop in duplexes with two licenses, and when this occurs Momingside will require a Federal Exception Permit (FEP) from the City of Newport Beach. (The FEP is our local permitting requirement for facilities with seven or more residents, which makes provision for accommodations specific to a disabled group's housing needs) c. Ocean Recovery — 1217 and 1217 112 West Bay Avenue — This expansion of the existing Ocean Recovery women's program proposes to locate in an area in which approximately 17% of the population of a two -block cross-section of the Peninsula is already housed in three large licensed recovery facilities. The addition of an additional Ocean Recovery facility, in conjunction with the residents who have recently moved into the sober living expansion of the Newport Coast Recovery facility across the alley, would bring the population of residential recovery facilities in that area to 20%. Unfortunately, Ocean Recovery does not appear to be following a pattern of openness and honesty with either Its proposed neighbors or the City in its siting process. After Ocean Recovery purchased the property, neighbors report that they asked an Ocean Recovery representative present on the property what the property would be used for, and he replied that he and his family would be living there while their house was being remodeled. (This nullified the subsequent efforts of City representatives who encouraged neighbors to approach Ocean Recovery and work with them to protect the quiet residential character of Bay Avenue.) Originally, Ocean Recovery Indicated an intent to apply for a single license for the property at 1217 and 1217'% West Bay Avenue, with a licensed capacity of eight. When Oman Recovery was informed by the City that this would require a FEP, facility operators told Planning Department representatives that they had made "a mistake in their application,° and that they had intended to apply for two licenses, one for six residents, and one for two residents.' This does not 2 To clarify the Issue, the Planning Department asked Ocean Recovery to submit a written description of the operational patterns they anticipate following at 1217 and 1217 Ys West Bay, and the services to,be provided in each unit. The document that Ocean Recovery provided described what is effectively an expansion of the Ocean Recovery women's program currently in operation at 1801 West Balboa, an existing noncanforrning use. Because the additional facility will involve the expansion of an existing nonconforming use, the City Intends to require a Federal Exception Permit in order to allow Ocean Recovery to operate its program as described at 1217 and 1217 % West Bay. This fax was received by FAX.CNB on Line 2 from 644$139 ` J From: 6443139 Page: 5/5 Date: 813!2007 4:19:25 PM Joan Robbins March 8, 2007 Page 4 change our determination that the application is for a facility with operations integral to other licensed facilities that will serve more than six residents, which therefore must have an FEP. d. Kramer Center Newport Beach — The Kramer Center Newport Beach knowingly began supplying residential treatment services to adolescent girls without a license from either ADP or ASS In December, 2006. Although i cannot give details on an ongoing criminal investigation, before granting any license for the Kramer Center, ADP should be aware that the Newport Beach Police Department has received and is investigating complaints against this entity and some of Its employees. ADP and DSS Community Care Licensing are also Investigating the allegations. I hope that the ADP will carefully consider our position before granting more licenses for residential alcohol and drug abuse recovery and treatment facilties in the City of Newport Beach. Changing the character of our neighborhoods from residential to institutional benefits neither our permanent residents, nor the clients of the existing facilities who are undergoing the difficult process of recovery. We appreciate any assistance you can give us in preventing the irreparable harm that could result from the unfettered expansion of the commercial operations In residential neighborhoods. S , Robin Clauson, City Attorney cc. Mayor and Members of Newport Beach City Council City Manager This fax was received by FAX -CN8 on Line 2 from 6443139 �.5 ATTACHMENT G t5� THIS PAGE INTENTIONALLY LEFT BLANK 5 �° From: 6443139 Page: 2/3 Date: 802007 4:21:10 PM Alcohol and Drug Treatment Needs Has Newport Beach Addressed its "Share "? The National Survey on Drug Use and Health (NSDUH —which provides annual data on drug use in the United States) is sponsored by the Substance Abuse and Mental He8M1 Services Administration (SAMHSA). SAMHSA is an agency of the U.S. Public Health Service and a part of the Department of Health and Human Services (DHHS). The survey provides yearly national and state level estimates of alcohol, tobacco, illicit drug, and non- medical prescription drug use. Other health - related questions also appear from year to year, including questions about mental health. The NSDUH is authorized by Sectioo 505 of the Public Health Service Act, which requires annual surveys to collect data on the level and patterns of licit and illicit substance use. The 2003 -04 NSDUH estimates that 10.10% of the population In California was dependent upon or abused alcohol or illicit drugs. The 2002 NSDUH says that of all people abusing alcohol or illicit drugs, more than 94% do not believe they' need treatment — leaving 6% who seek treatment. FACTS ABOUT LICENSED BEDS — STATEWIDE, OC, NEWPORT BEACH • California has a population of 36,100,000 — 10.10% of that Is 3,048,000 people. California has 21,007 licensed recovery beds (per CA ADP numbers —1 -2007) • Orange County has a population of 2,988,072 — 10.10% of that is 301,795. Orange County has 1,495 licensed recovery beds (per CA ADP numbers — 1- 2007), an amount equaling 7.117% of all licensed recovery beds in California. • Newport Beach has a population of 83,000 — 10.10% of that Is 8,300 people. Today, Newport Beach has 219 licensed recovery beds (per CA ADP numbers —1- 2007), an amount equaling 14.8% of all licensed beds in Orange County and 1.043% of all licensed beds In California. LICENSED BED COUNT— IF DISTRIBUTED PER CAPITA If California's 21,007 beds were distributed evenly across Caltfomia's counties on a per capita basis, then Orange County would have 1.739 beds, It has jM. If California's 21,007 beds were distributed evenly across California's cities on a per capita basis, then Newport Beach would have 98 beds. We have 219. LICENSED BED DAYS — IF DISTRIBUTED BY NEED* If 10.10% of the population in California have a problem with alcohol or use illicit drugs, and 6% of them seek treatment in a 70 -day stay licensed recovery facility, then: • California has a shortfall of 7,546.065 Licensed Bed Days per year • Orange County has a shortfall of 721.865 Licensed Bed Days per year; and • Newport Beach has an exceedance of44.728 Licensed Bed Days per year. *In temrs of people seelang treatment. See charts on the following page. This fax was received by FAX -CN8 on Line 3 from 6443139 1 5'A wr _e& !r _:8/=a « * This fax was received w_.CN.= Line ,from 6443139 �/ 3§§K ©( n \ C f f \ ) «f[I k k (KF « k kC! ( .$■( a agR) §f7 * *k\§§ §�7 3 3k / /i ■ ® ®$® � ' . \ §§ k� )k / D |k �i 7 \ � k 222 Iq /2 %m \ This fax was received w_.CN.= Line ,from 6443139 �/ §(222§ \ \ f \ ) «f[I k k (KF « .$■( a agR) §f7 * *k\§§ §�7 3 3k / /i ■ ® ®$® \ {§ {!{ ƒ77 Q �f t ) ■ « \k� + \�/ \2f�$ iii! ID !$ ) §woo k 0a m ` M WIL IL 0 This fax was received w_.CN.= Line ,from 6443139 �/ §(222§ \ \ f \ ) «f[I k k (KF « .$■( a agR) §f7 * *k\§§ §�7 3 3k / /i ■ ® ®$® �/ ATTACHMENT H THIS PAGE INTENTIONALLY LEFT BLANK `u1) From: 6443139 Page: 2111 Date: 8/3/2007 4:29:53 PM Policy Guides Page 1 of 10 W Ai11P.rican Plattuing Assmia61Ait Print Now dRtktr{4 drn�t anuuAwdacx Alyi m Policy Guide on Community Residences Adopted by Special Delegate Assembly, September 21, 1997 Ratified by Board of Directors, September 22, 1997 Municipalities and counties throughout the nation continue to use zoning to exclude community residences from the single - family residential districts despite 25 years of planning standards(') and the vast majority of court decisionsl�1 that recognize community residences for people with disabilities as a residential use. Misconceptions about their nature and impacts abound although there is a wealth of scientiflc evidence that community residences for people with disabilities generate no adverse impacts on the surrounding community and function as residential uses. More recently the Fair Housing Amendments Act of 1988131 prohibited zoning regulations of community residences that are based on unfounded myths and fears about the residents, and appeared to explicitly disallow the use of special use permits as the primary means of regulating community residences. Yet this misclassification and exclusion continues unabated throughout most of the nation. During the 1970s and 19809, every state, as well as the federal government, started to reshape its policies toward people with severe disabilities. States recognized that warehousing people with disabilities In Institutions was not only extremely costly, but also ineffective. A large proportion of those who were Institutionalized could live In much less restrictive environments such as a famllyllke environment in a house or apartment surrounded by other residential uses. They did not require the high level of care furnished by an institution. Overwhelming evidence showed that allowing Individuals with disabilities to live in a famllyllke setting In the community in a community residence was not only much less expensive than consigning them to institutions, but also substantially more effective. In a famllyllke setting, people with disabilities could learn the life skills we teach our own children on a dally basis. Living In a community residence, namely a group home or halfway house, fosters normalization In which these Individuals learn to lead as normal a life as possible. As the courts have noted time and again, community residences are the very opposite of an Institution In terms of how they function and perform, and in terms of how they use the land. To achieve a familylike setting, these community residences need to be located In the same residential zoning districts as dwellings occupied by biological families. Definitions Because there is so much misunderstanding of this subject, it Is essential to first define several terms. Group Home A dwelling unit occupied as a single housekeeping unit in a familylike environment by up to approximately 12 to 15 persons with disabilities plus support staff. Residents are supervised by a sponsoring entity or Its staff which furnishes habilitative services to the group home residents. A group home Is owned or operated under the auspices of a nonprofit association, private care provider, government agency, or other legal entity, other than the residents themselves or their parents or other individuals who are their legal guardians. Interrelationships between residents are an essential component of a group home. A group home Imposes no time limit on how long an Individual can reside In the group home. A group home Is a relatively permanent living arrangement where tenancy is measured in years. The group home constitutes a family, a single housekeeping unit where residents share responsibilities, meals, and recreational activities as in any family. The intention Is for group home residents, like members of a biological family, to develop ties In the community. Like people without disabilities, these Individuals attend schools, work, and may receive other support services in the community. The group home staff Is specially trained to help the residents achieve the goals of independence, productivity, and integration Into the community. Together, the staff and residents constitute a functional famlly.(4) The group home's staff teaches the residents with disabilities the same life activities taught In conventional homes. They learn personal hygiene; shopping cleaning, laundry, and recreational skills; how to handle money; how to take public transportation; how to use community facilities. They learn how to live as a family. The group home fosters the very same family values our most exclusive residential zoning disMcts httn• / /www'nI»nnina nro /nnlirvoniiiec /r.nnmree li n9nmiepl -Print R!4fmw This fax w ` as received by FAX -CNB on Line 2 from 6443139 (D From: 6443139 Page: 3/11 Date: 813/2007 4:29:53 PM Policy Guides advance. Page 2 of 10 The primary purpose of the group home is to provide a famllylike setting with ongoing supervision and support for persons unable to live independently in the community. It Is nota cilnic where t+eatmentIs the principal oressentlal service provided. A treatment regime may be Incorporated into the daily routine of persons with disabilities wherever they may live, whether with their families, in an Institution, or In a group home. So, just like the person with a disability who lives with her family, the group home resident may have a daily habilitation regime to follow. Any treatment received at home Is incidental to the group home's primary purpose. (5) Residency in a group home Is long term relatively permanent and measured In years, not months or weeks. There Is no limit on how long an individual can live in a group home. A group home can house people with developmental disabilities (mental retardation, autism, etc.), mental illness, physical disabilities, or addiction to drugs or alcohol. When the residents have a drug or alcohol addiction, the group home Is called a recovery home, The number of Individuals who live In a group home varies from just two or three to as many as 12 to 15, or in rare cases as many as 20. For people with developmental disabilities, it Is felt that smaller homes are more productive. Group homes for people with mental illness tend to house six to 15 residents for both therapeutic and financial reasons. Group homes for the frail elderly can require as many as 20 residents to be financially and therapeutically sound. The maximum number of residents is determined by applying a jurisdictions housing code for residential uses to the property. Some group home residents graduate from this type of community living arrangement to live on their own with only occasional visits from professional staff. Most, however, will live out their lives in a group home. Recovery homes for people with drug or alcohol addictions are another type of group home. Occupants typically sign an annual lease and can live In a recovery home for years. A singlefamily residential district Is essential for most group homes to succeed, although for some, a multiplefamlly district can work. Group home operators want to establish group homes In the same sort of pleasant, safe neighborhoods you and I strive to live in, for the same reasons we seek them. Halfway house or recovery community A temporary residential living arrangement for persons leaving an institutional setting and in need of a supportive living arrangement In order to readjust to living outside the Institution. These are persons who are receiving therapy and counseling from support staff who are present when residents are present, for the following purposes: (a) to help them recuperate from the effects of drug or alcohol addiction (a disability); (b) to help them reenter society while housed under supervision while under the constraints of alternatives to imprisonment including, but not limited to, prerelease, work release, or probationary programs (not a disability); or (c) to help persons with family or school adjustment problems that require specialized attention and care In order to achieve personal Independence (not a disability). Interrelationships between residents Is an essential component of a halfway house. Residency Is limited to a specific number of weeks or months. People with drug or alcohol addictions often need to live in a halfway house as a transitional living arrangement before they can live more Independently in the community or return to their homes. The key for them Is to learn to abstain completely from using drugs or alcohol. Treatment usually consists of an initial withdrawal period followed by Intensive counseling and support both through treatment programs and through residential living arrangements. Such community residences are based on the group home model with some significant differences with Implications for proper zoning regulation. The halfway house or recovery community helps people with drug or alcohol addictions readjust to a normal life before moving out on their own. A person with an addiction is admitted only after completing detoxification. The halfway house staff helps residents adjust to a drugfree lifestyle, learn how to take control of their lives, and learn how to live without drugs. Nearly all halfway houses piece a limit, measured In months, how long someone can live there. Unlike a group home, the halfway house aims to place all Its residents into independent living situations upon graduation. For both therapeutic and httn• //w nlannina nrn /nnlinvmiirina /nnmmma htm7nmrnn4=print This fax was received by FAX -CNB on Line 2 from 6443139 (, From: 6443139 Page: 4111 Date: 813!2007 4:29:53 PM Policy Guides Page 3 of 10 financial reasons, most halfway houses need 10 to 15 residents to be successful. Because the number of residents in a halfway house Is greater than In a group home and their length of tenancy shorter, halfway houses more closely resemble multiplefamlly housing than singlefamlly residences, although, like group homes, they work best in singlefamlly neighborhoods.t6i Disability A physical or mental Impairment that substantially limits one or more of a persons major life activities, Impairs their ability to live independently, or a record of having such an Impairment, or being regarded as having such an impairment. Prison preparolees, for example, do not, as a class, fit this definition. Most people with disabilities do not require a community residence to live In the community. More than 80 percent of them live with their families or on their own with some support services.(7) Still, In 1990 over 3.9 million Americans had disabilities so severe that they were prevented from working at a job or doing housework or they required assistance with dally tasks like getting In and out of bed, dressing, bathing, shopping, or light housework, or had a developmental disability, Alzheimers disease, or senility making many of them appropriate candidates to dwell in a community residence-(8) This set of policy guidellnes of the American Planning Association does not advocate for or against community residences, the broad term that includes group homes and halfway houses. It does not Include hospices, emergency shelters, residences for victims of abuse, or other group living arrangements.t91 This policy guideline seeks to establish the maximum level of zoning regulation permissible for community residences for people with disabilities In accord with sound planning principles, the Fair Housing Amendments Act of 1988 (FHAA), and case law. These pollcy guldellnes do not suggest that any community or state with less restrictive zoning provisions should make their zoning provisions more restrictive, Exclusionary zoning practices Limiting the number of unrelated Individuals who can dwell together has been one of the most commonly used zoning techniques to exclude community residences from singlefamily districts. The definition of family In most zoning codes allow no more than three, four, or five unrelated Incilviduals to occupy a dwelling unit. Some allow no unrelated people to live together, even as roommates.tloi The U.S. Supreme Court upheld these restrictive definitions in Village of8elle Terre V. Borasstlli. Since most community residences need six or more residents to succeed therapeutically and financially, this restriction has effectively blocked most community residences from locating in the residential areas in which they need to locate. Another common technique has been to require a special use permit for a community residence to locate In a residential district.(32) At a public hearing, an applicant must demonstrate that Its proposed land use meets the criteria for granting a special use permit. In the case of community residences, neighbors commonly claim that the proposed community residence will reduce property values and introduce crime and congestion to the neighborhood. Marry opponents assert that the community residence Is a business rather than a dwelling. In many allwhite communities, opposition is driven by a fear of racial integration, namely that group home residents and staff may be of African ancestry. All of these objections reflect false Impressions of community residences and their occupants. City officials quite often yield to objections by neighbors and reject the application of the community residence even when the applicant demonstrates it meets the criteria for awarding the special use permit. This was the scenarlo that led to the U.S. Supreme Courts 1985 decision In City of Cleburne v. Cfebume Living Center where the Court ruled the city had illegally denied the group homes special use permit based on the neighbors unfounded fears and myths about the group home and Its residents .(13) This technique is extremely effective at limiting the housing opportunities for people with disabilities who need a community residence to live In. When a special use permit Is required, the buyer usually seeks to purchase the property with a clause that makes the sale contingent on receiving the special use Permit. That sort of provision Is quite common in the sale of commercial property, but extremely rare in the sale of owneroccupled residential property. Few homeowners can afford to sell their houses subject such a contingency clause. Most homeowners need the proceeds from the sale of their current house to buy a httn' / /wK nlarmina nro /nnlirvvn:Ar+a /rnmmwa hhn 9nm:ar.faDrinh R /Imnn7 •� This fax was received by FAX -CNB on Line 2 from 6443139 From: 6443139 Page: 5/11 Date: 8/3!2007 4:29:54 PM Policy Guides Page 4 of 10 new one. Consequently, few homeowners are willing to sell to a group home operator who Insists on this kind of contingency clause and few group home operators can afford to take the risk that their special use permit application will be denied and theyll be stuck with a house they cannot use as a group home. In 1974 the American Society of Planning Officials (one of APAS predecessor organizations) surveyed 400 U.S. cities and found that the zoning ordinances of fewer than 25 percent provided specifically for community residences. Of those that mentioned group homes or halfway houses, the vast majority either prohibited them from singlefamily districts or required them to obtain a special use permit to locate In such residential zones.(14) Ten years later, the zoning picture for community residences was still grim. The General Accounting Office found that 65.5 percent of the time local zoning ordinances or practices prevented or made it difficult for group homes for people with developmental disabilities to locate in the singlefamily districts their operators preferred.(15) Subsequent recent research prior to adoption of the Fair Housing Amendments Act of 1988 found that little had changed.(16) Role of the Fair Housing Amendments Act of 1988 Rather than simply add people with disabilities to the list of protected classes under the Fair Housing Act, Congress added a new section to the act that declared discrimination Includes: a refusal to make reasonable accommodations In rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy 'a dwelling. (17) Much of the FHAA litigation has revolved around the issue of reasonable accommodation. Given this statutory language, it Is hard to see how anybody can contend that the FHAA requires that community residences be treated the exactly the same as singlefamily residences. The statute requires only that a reasonable accommodation be made In a citys zoning ordinance to give people with disabilities an equal opportunity to use and enjoy a dwelling. This does not mean that they have a right to dwellings they cannot afford to buy or rent. It does not mean that a city must change its zoning to allow communes, boarding houses, or fraternities in its most exclusive singlefamily districts. But this provision does mean that a city Is required to bend Its zoning rules to enable members of the protected class, many of whom need a community residence living arrangement to live outside an Institution, to establish such residences In singlefamily and multiplefamlly zoning districts. And it means that a city cannot impose additional barriers to community residences for people with disabilities. Consequently, if a zoning ordinance defines family as any number of unrelated persons living together as a singiehousekeeping unit, the locality cannot Impose any additional restrictions on community residences. A community residence which, of course, constitutes a singiehousekeeping unit with 12 unrelated residents compiles with this definition of family. However, If a zoning ordinance places a cap on the number of unrelated people who can dwell together, the FHAA requires the local ordinance to make a reasonable accommodation to enable community residences for people with disabilities to locate in every zoning district where residences are allowed. While the FHAA does not mention zoning or group homes, Its legislative history provides a clear picture of what the FHAA sought to accomplish: These new subsections would also apply to state or local land use and health and safety laws, regulations, practices or decisions which discriminate against Individuals with handicaps. While state and local govemments have authority to protect safety and health, and to regulate use of land, that authority has sometimes been used to restrict the ability of Individuals with handicaps to live In communities. This has been accomplished by such means as the enactment or imposition of health, safety or landuse requirements on congregate living arrangements among nonrelated persons with disabilities. Since these requirements are not Imposed on families and groups of similar size of other unrelated people, these requirements have the effect of discriminating against persons with disabilities. httn• / /un nlannino nro /nnlin.,miiriae(rnmm.no I,h..9...ninM —nw..t This fax was received by FAX -CNB on Line 2 from 6443139 aizi�nm 1 From: 6443139 Page: 6111 Date: 613/2007 4:29:54 PM Policy Guides Page 5 of 10 The Committee Intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act Is intended to prohibit the application of special requirements through landuse regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community. (ta) [emphasis added] The legislative history goes on to suggest that restrictions on community residences that are based on fact, not fiction, may be legal. The paragraph that follows In the House Committee Report suggests that municipalities can Impose rationallybased zoning regulations on community residences: Another method of making housing unavailable has been the application or enforcement of otherwise neutral rules and regulations on health, safety, and landuse in a manner which discriminates against people with disabilities. Such discrimination often results from false or overprotective assumptions about the needs of handicapped people, as well as unfounded fears ofdif cultles about the problems that their tenancies may pose. These and similar practices would be prohibited.(19) The FHAA essentially codified the majority opinion of the courts regarding community residences. For more than W years, the vast majority of court decisions Involving attempts to locate community residences in singlefamily zoning districts found community residences to be akin to the traditional family (20) and constitute functional families that belong in singlefamily zones unlike fraternities and sororities, communes, and other loose, temporary group living arrangements.(21) It is clear from court decisions under the FHAA that when a jurisdictions definition of family does not cap or limit the number of unrelated Individuals who may occupy a dwelling unit the FHAA prohibits imposing additional zoning requirements on community residences for people with disablifties.(22) Unlike sapless communities, jurisdictions that place a limit on the number of unrelated persons who can live together, can regulate community residences to an extent. Court decisions strongly suggest that zoning restrictions on community residences can be legal if you can answer yes to all three of the following questions: • Is the proposed zoning restriction intended to achieve a legitimate government purpose? • Does the proposed zoning restriction actually achieve that legitimate govemment purpose? • Is the proposed zoning restriction the least drastic means necessary to achieve that legitimate government purpose? In Bangerter v. Orem City Corporation, the Tenth Circuit articulated these questions a bit differently. The court stated that [r]estNCtlons that are narrowly tallored to the particular individuals affected could be acceptable under the FHAA if the benefits to the handicapped in their housing opportunities clearly outweigh whatever burden may result to them.(23) Findings 1 Community residences are a residential use of land. For zoning purposes, community residences are much closer in terms of land use to a residence ordinarily occupied by a Conventional family than any other land use. The majority of courts have ruled that are a community residence Is the opposite of an institution, boarding house, or a commercial use. 2 Community residences have no effect on the value of neighboring properties. More than 50 studies have examined their impact on property values probably more than for any other small land use. Although they use a variety of methodologies, all researchers have discovered that group homes and halfway houses do not affect property values of even the house next door. They have no effect on how long it takes to sell neighboring property, Including the house next door. They have learned that community residences are often the best maintained properties on the block. And they have ascertained that community residences function so much like a conventional family that most neighbors within one to two blocks of the home don't even know there is a group home or halfway house nearby. (24) littnJ/www.nlannina.c atnolir aiiirina /rnmmrPe htm7nrnipr1=Print This fax was received by FAX•CNB on Line 2 from 6443139 R 1Z17nn7 j�15 From: 6443139 Page: 7/11 Date: 8/3/2007 4:29:54 PM Policy Guides 3 Community residences have no effect on neighborhood safety. Page 6 of 10 A handful of studies have also looked at whether community residences compromise neighborhood safety. The most thorough study, conducted for the State of Illinois, concluded that the residents of group homes are much less likely to commit a crime of any sort than the average resident of Illinois. It revealed a crime rate of 18 per 1,000 people living in group homes compared to 112 per 1,000 for the general populatlon.(zs) 4 Community residences do not generate adverse Impacts on the surrounding community. Other studies have found that group homes and halfway houses for persons with disabilities do not generate undue amounts of traffic, noise, parking demand, or any other adverse Impacts-('6) 5 Community residences should be scattered throughout residential districts rather than concentrated In any single neighborhood or on a single block. For a group home to enable its residents to achieve normalization and integration Into the community, it should be located in a normal residential neighborhood. If several group homes were to locate next to one another, or be placed on the same block, the ability of the group homes to advance their residents' normalization would be compromised. Such clustering would create a de facto social service district in which many facets of an institutional atmosphere would be recreated and would change the character of the neighborhood. Normalization and community integration require that persons with disabilities be absorbed Into the neighborhood's social structure. The existing social structure of a neighborhood can accommodate no more than one or two group homes on a single block. Neighborhoods seem to have a limited absorption capacity for servicedependent people that should not be exceeded. (27) Social scientists note that this level exists, but they can't quite determine a precise level. Writing about servicedependent populations In general, Jennifer Wolch notes, At some level of concentration, a community may become saturated by services and populations and evolve into a servicedependent ghetto .(28) According to one leading planning study, While It is difficult to precisely identify or explain, saturation is the point at which a community's existing social structure is unable to properly support additional residential care facilities [group homes). Overconcentration is not a constant but varies according to a community's population density, socioeconomic level, quantity and quality of municipal services and other characteristics. There are no universally accepted criteria for determining how many group homes are appropriate for a given area. (29) Nobody knows the precise absorption levels of different neighborhoods. However, the research strongly suggests that as the density of a neighborhood Increases, so does Its capacity to absorb people with disabilities Into its social structure. Higher density neighborhoods presumably have a higher absorption level that could permit group homes to locate closer to one another than in lower density neighborhoods that have a lower absorption level.00) This research demonstrates there Is a legitimate government Interest to assure that group homes do not . cluster. While the research on the impact of group homes makes it abundantly clear that group homes a block or more apart produce no negative Impacts, there is concern that group homes located more closely together can generate adverse impacts on both the surrounding neighborhood and on the ability of the group homes to facilitate the normalization of their residents, which is, after all, their raison dtre. 6 Community residences should be licensed or certified to protect the welfare of their residents. The individuals who occupy a community residence constitute a vulnerable population unable to fully care for themselves. Licensing helps ensure that the operator is qualified to furnish the requisite care and support services the group home residents need. It helps assure that staff is qualified and properly trained, and sets a minimum standard of care. The welfare of the residents of a community residence constitutes a legitimate government interest, narrowly tailored to the individuals who live In a group home, and whose benefits clearly outweigh whatever burden may result. htf»'// wtvw. nlanninu .nra /nnlirvonirlra /nmmmraa htm7ntnicrt =Prink R /ZI7M7 t °� This fax was received by FAX -CNB on Line 2 from 6443139 From: 6443139 Page: 8/11 Date: 8/3/2007 4:29:55 PM Policy Guides Page 7 of 10 Policy Positions Zoning Is essentially performance oriented. When officials select the uses that are permitted as of right In each zoning district, they make the implicit assumption that these land uses belong in the district and do not generate adverse Impacts on the surrounding properties. Special or conditional uses are those that belong in a district, but are known to produce adverse impacts under certain conditions unless precautions are taken. The extensive research on the impacts of community residences shows that they generate no adverse Impacts on the surrounding neighborhood as long as they are licensed and not clustered on a block. There is no need to subject community residences to special use permit procedures because the licensing and spacing threshold Issues are purely factual questions that can be determined administratively and do not require the extra scrutiny of a special use permit hearing. General Policy Position Based on sound planning and zoning principles, the American Planning Association recognizes that community residences for people with disabilities are residential uses that should be allowed as of right in all zoning districts where other residences are permitted uses. When the proposed community residence complies with the jurisdictions zoning code definition of family, no additional restrictions can be imposed. When the number of residents In the home exceeds the cap on the number of unrelated Individuals set in the definition of family, the jurisdiction should amend Its zoning code to make a reasonable accommodation to provide for community residences in all residential districts within the capacity of the jurisdiction to absorb additional community residences Into Its social structure. Specific Policy Positions Supported by the American Planning Association and Its chapters POLICY 1: A proposed community residence for people with disabilities that compiles with the jurisdictions definition of family should be allowed as of right In all residential districts under the definition of family. (Additional) Zoning requirements that are more restrictive than those applicable to residential uses In the underlying district are not permitted. By adding people with disabilities to coverage of the Fair Housing Act, the Fair Housing Amendments Act of 1988 effectively prohibits placing additional zoning requirements on a community residence for people with disabilities that otherwise meets the zoning code requirements for other residential uses. POLICY 2: When a proposed group home for persons with disabilities does not comply with the Jurisdictions definition of family, then the jurisdiction is required to make a reasonable accommodation In its zoning code to allow group homes for people with disabilities as of right in all residential districts if it meets these two requirements: 1. That a rationally based spacing requirement be provided to avoid an undue concentration of community residences and 2. When the proposed group home or Its operator must be licensed or certifled by the appropriate state, national, regional, or local licensing or certification body. If a proposed group home fails to meet both tests, then a zoning ordinance should allow the operator to apply for a special use permit. The Fair Housing Amendments Act of 1988 requires jurisdictions to make a reasonable accommodation to enable community residences for people with disabilities to locate in residential districts. Such accommodations must be the least drastic necessary to actually achieve a legitimate government purpose. Based on sound planning principles and the extensive evidence found by studies on the impacts of community residences, the American Planning Association believes that this approach outlined here constitutes the maximum permissible degree of zoning restrictions. A oneblock spacing distance appears to be long enough to assure that community residences achieve the normalization they seek for their residents and help preserve the residential character of a neighborhood. Concentrating or clustering several community residences on a block can recreate an Institutional atmosphere exactly the opposite of what community residences seek to achieve. Since the residents of a community residence are a vulnerable population, requiring licensing or certification helps assure their welfare and safety In the least Intrusive manner. . ht.tn: / /www.niannin e. ore /nnli cvguide s /cnmmrea.ht.m ?nroiect=Print This fax was received by FAX -CNB on Line 2 from 6443139 R/3/2007 )o From: 6443139 Page: 9111 Date: 813!2007 4:29:55 PM Policy Guides Page 8of10 Group homes include recovery homes for people with drug or alcohol addictions. Like other group homes, recovery homes are longterm residences that do not limit how long Individuals may live there, They should not be confused with halfway houses for people with disabilities, including drug or alcohol addiction. POLICY 3: When a proposed halfway house for persons with disabilities does not comply with the jurisdiction's definition of family, then the jurisdiction Is required to make a reasonable accommodation in Its zoning code to allow halfway houses for people with disabillties as of right in all multiplefamily residential districts if the proposed halfway house meets these two requirements: 1. That a rationally based spacing requirement be provided to avoid an undue concentration of community residences and 2. When the proposed group home or its operator must be licensed or certified by the appropriate state, national, regional, or local licensing or certification body. If a proposed group home fails to meet both tests, then a zoning ordinance should allow the operator to apply for a special use permit. From a zoning perspective, halfway houses perform more like multiplefamily housing than singlefamily housing. They dont emulate a family quite as closely as a group home does. They billet many more people. They place a limit on length of residency, unlike a group home which is a more permanent living arrangement akin to singlefamily housing. POLICY 4: Halfway houses should be allowed in all singlefamily zones by special use permit due to their multiplefamily characteristics that warrant the extra scrutiny provided by the special use permit or comparable review process when locating In a singlefamily district. On many occasions the operator of a halfway house may prefer to locate It In a singlefamily district. Halfway houses are not, per se, Incompatible with singlefamily homes. However, the heightened scrutiny of a conditional use permit hearing is warranted to assure that a proposed halfway house will be compatible with the other land uses In a singlefamily district. The standards to apply are the same ones used for other special uses. POLICY 5: Local planners should, on an informal basis, seek to facilitate communication between the operators of proposed community residences and the surrounding community to help foster full integration of the residents of a community residence Into the community. Planners should help neighbors learn how each proposed community residence emulates a family and how it serves as a residence that Is properly located In a residential zone, not an Institutional use that belongs outside residential districts. They should disseminate to neighbors and public officials the findings of the extensive research on the absence of adverse Impacts of community residences on the surrounding community. Authority 1. See M. Jaffe and T. Smith, Siting Group Homes for Developmentally Disabled Persons (American Planning Association Planning Advisory Service Report No. 397 (1986); D. Lauber and F. Bangs, Jr., Zoning for Family and Group Care Facilities (American Society of Planning Officials PAS Rep. No. 300, 1974); and N. Williams, American Land Planning Law 12, 17, 25 (1988, Supp. 1994). 2. See N. Williams; American Land Planning Law 12, 17, 25 (1988, Supp. 1994)• 3. Fair Housing Amendments Act of 1988, 42 U.S.C. 3604(f)(1) et. seq. 4. Galley at 9798. S. H. R. Turnbull, III, Community8ased Residences Ibr Mentally Handicapped People 12 (1980). Some courts have found this distinction to be crucial when determining that group homes function as families and are residential uses allowable In residential zoning districts. ciai ,)nn,7 1 �� This fax was received by FAX -CNB on Line 2 from 6443139 From: 6443139 Page: 10/11 Date: 8!3!2007 4:29:56 PM Policy Guides Page 9 of 10 6. Oxford House, which has been the subject of so much FHAA litigation falls somewhere between the group home and halfway house. Unlike the halfway house, Oxford House places no limit on the length of stay. Unlike a group home, or even halfway house, Oxford House has no staff, The residence Is run by its officers who are elected periodically from among its residents. Unlike a group home, Oxford House needs 10 to 15 residents to function successfully, both therapeutically and financially. The courts have generally construed Oxford House to be a group home. 7. See O. Braddock, R. Hemp, L. Bachelder, G. Fujlure, The State of the States in Developmental Disabilities 8 (4th ad. 1994); Developmental Oisabilities Assistance and Bill of Rights Act, 42 U.S.C. 6000 et. seq. S. Id. at 12. 9. This policy guideline focuses solely on the zoning treatment for group homes and halfway houses for people with disabilities, the two most common types of community residences. Other types of community residences may warrant zoning treatment different from. that recommended here. 10 D. Lauber, Group Think, in Planning 11, at 12 (October 1995). 11. 416 U.S. 1 (1974). 12. Also known as a conditional use permit, the special use permit was designed to allow for extra scrutiny to be applied to land uses that belong In a zoning district, but that may generate adverse impacts unless certain conditions were observed. Robert Leary, Zoning, 439 William Goodman and Eric Fruend, ads., Principles and Practices of Urban Planning (International City Management Association, 1968). 13. 105 S. Ct. 3249 (1985). 14. D. Lauber and F. Bangs, Jr., Zoning for Family and Group Care Facilities 9 (American Society of Planning Officials PAS Rep. No. 300, 1974). 15. General Accounting Office, Analysts of Zoning and Other Problems Affecting the Establishment of Group Homes for the Mentally Disabled 61 (1983). Several regional studies have also found that few municipal zoning ordinances provided for community residences. In 1983 it was found that only four of the 31 municipalities in the Seattle, Washington, area defined the term group home and that only three allowed them as a permitted use in even one residential district. Eighteen allowed them by special use permit In at least one zoning district, not necessarily residential, and 13 did not provide for them at M. RitzdorfI5rozovsky, Impact of Family Definitions in American Municipal Zoning Ordinances 119, 214215 (1983) (unpublished dissertation, University of Washington). A California study found that not a single municipality in suburban San Francisco allowed group homes for more than five residents as a permitted use in residential districts; only one allowed group homes for five or less residents as a permitted use In all residential districts; two allowed them as a permitted use in some residential districts; nine allowed them as special uses in some residential districts; and seven did not allow group homes at alt. Bay Area Social Planning Council, Effect of Zoning Regulations on Residential Care Facilities in San Mateo County: Report and Recommendations of the Study Committee C7 (March 1970) . In New Yorks suburban Westchester County, only one of 33 communities allowed group homes as of right in residential districts. S. Hettinger, A Place They Call Home: Planning for Residential Care Facilities 33 (Westchester County Oept. of Planning 1983). 16. M. Jaffe and T. Smith, Siting Group Homes for Developmentally Disabled Persons (American Planning Association Planning Advisory Service Report No. 397 (1986). 17. 42 U,S.C. 3504(f)(3)(B). 18. H.R. Rep. No. 711, 100th Congress 2d Session, reprinted in 1988 U.S.C.C.A.N. 2173, (1988). 19. H.R. Rep. No. 711, 100th Congress 2d Session, reprinted In 1988 U.S.C.C.A.N. 2173, (1988) (emphasis added). 20. City cf White Plains v. Ferraioli, 313 N.E.2d, 756, 758 (citation omitted). bftn• //w nlnnninv 9 /117(1117 This fax was received by FAX -CNB on Line 2 from 6443139 `0 From: 6443139 Page: 11 /11 Date: 813/2007 4:29:56 PM Policy Guides Page 10 of 10 21. Norman Williams has kept a running tally of these cases In his treatise, 2 Williams, American Land Planning Law 52.12 (1987, Supp. 1994). Over 90 judicial decisions Involving community residences for people with disabilities and definitions of family and other zoning restrictions are cited there. Pre1988 decisions run three to one in favor of allowing community residences for people with disabilities In singlefamily districts despite restrictive definitions of family or requirements for a special use permit. This figure Includes only those cases that Involved community residences for people with disabilities, not other populations not subsequently covered by the 1988 amendments to the Fair Housing Act. 22. See, Oxford HouseEvergreen v. City of Plainfield, 769 F. Supp. 1329 (D.N.3. 1991) (since Oxford House complied with citys capless definition of family and there is no state license required to operate an Oxford House the city could not disallow the Oxford House from the singlefamily district in which It located); Support Ministries for Persons with AIDS v. Village of Waterford, New York, 808 F. Supp. 120 (N.D. N.Y. 1992) (city must Issue the permits sought to establish home for persons with AIDS under definition of familyas opposed to boarding house); Merritt v. City of Dayton, No. C391448 (S.D. Ohio, April 7, 1994) (3,00Dfoot spacing requirement struck down where home met definition of family); Marbrunak, Inc. v. City of Stow, Ohio, 1992 U.S. App. LEXIS 20455 (parents of four grown women with developmental disabilities established a family consortiumhouse as a permanent residence for their daughters with support staff In s singlefamily district; city sought to require special use permit as a boarding house and to require additional safety code requirements because the residences had developmental disabilities; court rules that the home complied with the citys capless definition of familyand, since no state license was required to operate It, the house must be treated the same as other residences. 23. 1995 WL 10478 (10th Cir. Utah). 24. For a comprehensive compilation of descriptions of over 50 of these studies, see Council of Planning Librarians, There Goes the Neighborhood; A Summary of Studies Addressing the Most Often Expressed Fears About the Effects of Group Homes on Neighborhoods In Which They Are Placed (CPL Bibliography No. 259, April 1990); M. Jaffe and T. Smith, Siting Group Homes for Developmentally Disabled Persons (Am. Plan. A. Plan. Advisory Serv. Rep. No. 397 (1986). See e.g., City of Lansing Planning Department, Influence of Halfway Houses and Foster Care Facilities Upon Property Values (monograph 1976) (found no negative Impacts on selling price of houses near or adjacent to halfway houses for people with alcohol addictions, adult exoffenders, juvenile exoffenders). 25. Daniel Lauber, Impacts on the Surrounding Neighborhood ofGroup Homes for Persons with Developmental Disabilities, 15 Illinois Planning Council on Developmental Disabilities (1986). 26. Daniel Lauber, Zoning for Family and Group Care Facilities at 10. 27. Kurt Wehbring, Alternative Residential Facilities for the Mentally Retarded and Mentally Ill 14 (no date) (mimeographed). 28. Jennifer Wolch, 'Residential Location of the Service Dependent Poor," 70 Annals of the Association of American Geographers, at 330, 332 (Sept. 1982). 29. S. Hettinger, A Place They Call Home: Planning for Residential Care Facilities 43 (Westchester County Department of Planning 1983). See also D. Lauber, Zoning for Family and Group Care Facilities at 25. 30. Lauber, Zoning for Family and Group Care Homes at 25. @Copyright 2007 American Planning Association All Rights Reserved annnn^r ` b This fax was received by FAX -CNB on Line 2 from 6443139 ATTACHMENT �J \ THIS PAGE INTENTIONALLY LEFT BLANK I-)?- From: 6443139 Page: 219 Date: 8/3/2007 4:35:45 PM JOINT STATEMENT OF THE DEPARTMENT OF JUSTICE AND THE DEPARTMENT OF ROUSING AND URBAN DEVELOPMENT GROUP HOMES, LOCAL LAND USE, AND THE FAIR HOUSING ACT Since the federal Fair Housing Act ( "the Act ") was amended by Congress in 1988 to add protections for persons with disabilities and families with children, there has been a great deal of litigation concerning the Act's effect on the ability of local governments to exercise control over group living arrangements, particularly for persons with disabilities. The Department of Justice has taken an active part in much of this litigation, often following referral of a matter by the Department of Housing and Urban Development ( "HUD "). This joint statement provides an overview of the Fair Housing Act's requirements in this area. Specific topics are addressed in more depth in the attached Questions and Answers. The Fair Housing Act prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disabilityP The Act does not pre -empt local zoning laws. However, the Act applies to municipalities and other local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities. The Fair Housing Act makes it unlawful — • To utilize land use policies or actions that treat groups of persons with disabilities less favorably than groups of non - disabled persons. An example would be an ordinance prohibiting housing for persons with disabilities or a specific type of disability, such as mental illness, from locating in a particular area, while allowing other groups of unrelated individuals to live together in that area. • To take action against, or deny a permit, for a home because of the disability of individuals who live or would live there. An example would be denying a building permit for a home because it was intended to provide housing for persons with mental retardation. • To refuse to make reasonable accommodations in land use and zoning policies and procedures where such accommodations may be necessary to afford persons or groups of persons with disabilities an equal opportunity to use and enjoy housing. • What constitutes a reasonable accommodation is a case -by -case determination. • Not all requested modifications of rules or policies are reasonable. If a requested modification imposes an undue financial or administrative burden on a local government, or if a modification creates a fundamental alteration in a local government's land use and zoning scheme, it is not a "reasonable" accommodation. This fax was received by FAX -CNB on Line 3 from 6443139 11 ) From: 6443139 Page: M Date: 8WO07 4:35:45 PM The disability discrimination provisions of the Fair Housing Act do not extend to persons who claim to be disabled solely on the basis of having been adjudicated a juvenile delinquent, having a criminal record, or being a sex offender. Furthermore, the Fair Housing Act does not protect persons who currently use illegal drugs, persons who have been convicted of the manufacture or sale of illegal drugs, or persons with or without disabilities who present a direct threat to the persons or property of others. HUD and the Department of Justice encourage parties to group home disputes to explore all reasonable dispute resolution procedures, like mediation, as alternatives to litigation. DATE: AUGUST 18, 1999 Questions and Answers on the Fair Housing Act and Zoning Q. Does the Fair Housing Act pre -empt local zoning laws? No. "Pre- emption" is a legal term meaning that one level of government has taken over a field and left no room for government at any other level to pass laws or exercise authority in that area. The Fair Housing Act is not a land use or zoning statute; it does not pre -empt local land use and zoning laws. This is an area where state law typically gives local governments primary power. However, if that power is exercised in a specific instance in a way that is inconsistent with a federal law such as the Fair Housing Act, the federal law will control. Long before the 1988 amendments, the courts had held that the Fair Housing Act prohibited local governments from exercising their land use and zoning powers in a discriminatory way. Q. What Is a group home within the meaning of the Fair Rousing Act? The terra "group home" does not have a specific legal meaning- In this statement, the term "group home" refers to housing occupied by groups of unrelated individuals with disabilities .0 Sometimes, but not always, housing is provided by organizations that also offer various services for individuals with disabilities living in the group homes. Sometimes it is this group home operator, rather than the individuals who live in the home, that interacts with local government in seeking permits and making requests for reasonable accommodations on behalf of those individuals. The term "group home" is also sometimes applied to any group of unrelated persons who live together in a dwelling -- such as a group of students who voluntarily agree to share the rent on a house. The Act does not generally affect the ability of local governments to regulate housing of this kind, as long as they do not discriminate against the residents on the basis of race, color, national origin, religion, sex, handicap (disability) or familial status (families with minor children). Q. Who are persons with disabilities within the meaning of the Fair Housing Act? 5 �1 This fax was received by FAX -CNB on Line 3 from 6443139 1� From: 6443139 Page: 4/9 Date: 8!3/2007 4:35:45 PM The Fair Housing Act prohibits discrimination on the basis of handicap. "Handicap" has. the same Iegal meaning as the term "disability" which is used in other federal civil rights laws. Persons with disabilities (handicaps) are individuals with mental or physical impairments which substantially limit one or more major life activities. The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness. The term major life activity may include seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, or working. The Fair Housing Act also protects persons who have a record of such an impainnent, or are regarded as having such an impairment. Current users of illegal controlled substances, persons convicted for illegal manufacture or distribution of a controlled substance, sex offenders, and juvenile offenders, are not considered disabled under the Fair Housing Act, by virtue of that status. The Fair Housing Act affords no protections to individuals with or without disabilities who present a direct threat to the persons or property of others. Determining whether someone poses such a direct threat must be made on an individualized basis, however, and cannot be based on general assumptions or speculation about the nature of a disability. Q. What kinds of local zoning and land use laws relating to group homes violate the Fair Housing Act? Local zoning and land use laws that treat groups of unrelated persons with disabilities less favorably than similar groups of unrelated persons without disabilities violate the Fair Housing Act. For example, suppose a city's zoning ordinance defines a "family" to include up to six unrelated persons living together as a household unit, and gives such a group of unrelated persons the right to live in any zoning district without special permission. If that ordinance also disallows a group home for six or fewer people with disabilities in a certain district or requires this home to seek a use permit, such requirements would conflict with the Fair Housing Act. The ordinance treats persons with disabilities worse than persons without disabilities. A local government may generally restrict the ability of groups of unrelated persons to live together as long as the restrictions are imposed on all such groups. Thus, in the case where a family is defined to include up to six unrelated people, an ordinance would not, on its face, violate the Act if a group home for seven people with disabilities was not allowed to locate in a single family zoned neighborhood, because a group of seven unrelated people without disabilities would also be disallowed. However, as discussed below, because persons with disabilities are also entitled to request reasonable accommodations in rules and policies, the group home for seven persons with disabilities would have to be given the opportunity to seek an exception or waiver. If the criteria for reasonable accommodation are met, the permit would have to be given in that instance, but the ordinance would not be invalid in all circumstances. This fax was received by FAX -CNB on Line 3 from 6443139 �� From: 6443139 Page: 5/9 Date: 802007 4:35:46 PM Q. What Is a reasonable accommodation under the Fair Housing Act? As a general rule, the Fair Housing Act makes it unlawful to refuse to make "reasonable accommodations" (modifications or exceptions) to rules, policies, practices, or services, when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use or enjoy a dwelling. Even though a zoning ordinance imposes on group homes the same restrictions it imposes on other groups of unrelated people, a local government may be required, in individual cases and when requested to do so, to grant a reasonable accommodation to a group home for persons with disabilities. For example, it may be a reasonable accommodation to waive a setback requirement so that a paved path of travel can be provided to residents who have mobility impairments. A similar waiver might not be required for a different type of group home where residents do not have difficulty negotiating steps and do not need a setback in order to have an equal opportunity to use and enjoy a dwelling. Not all requested modifications of rules or policies are reasonable. Whether a particular accommodation is reasonable depends on the facts, and must be decided on a case -by- case basis. The determination of what is reasonable depends on the answers to two questions: First, does the request impose an undue burden or expense on the local government? Second, does the proposed use create a fundamental alteration in the zoning scheme? If the answer to either question is "yes," the requested accommodation is unreasonable. What is "reasonable" in one circumstance may not be "reasonable" in another. For example, suppose a local government does not allow groups of four or more unrelated people to live together in a single-family neighborhood. A group home for four adults with mental retardation would very likely be able to show that it will have no more impact on parking, traffic, noise, utility use, and other typical concerns of zoning than an "ordinary family." In this circumstance, there would be no undue burden or expense for the local government nor would the single-family character of the neighborhood be fundamentally altered. Granting an exception or waiver to the group home in this circumstance does not invalidate the ordinance. The local government would still be able to keep groups of unrelated persons without disabilities from living in single-family neighborhoods. By contrast, a fifty -bed nursing home would not ordinarily be considered an appropriate use in a single - family neighborhood, for obvious reasons having nothing to do with the disabilities of its residents. Such a facility might or might not impose significant burdens and expense on the community, but it would likely create a fundamental change in the single - family character of the neighborhood. On the other hand, a nursing home might not create a "fundamental change" in a neighborhood zoned for multi- family housing. The scope and magnitude of the modification requested, and the features of the surrounding neighborhood are among the factors that will be taken into account in determining whether a requested accommodation is reasonable. This fax was received by FAX -CNB on Line 3 from 6443139 From: 6443139 Page: 6/9 Date: 8/3f2007 4:35:46 PM Q. What is the procedure for requesting a reasonable accommodation? Where a local zoning scheme specifies procedures for seeking a departure from the general rule, courts have decided, and the Department of Justice and HUD agree, that these procedures must ordinarily be followed. If no procedure is specified, persons with disabilities may, nevertheless, request a reasonable accommodation in some other way, and a local government is obligated to grant it if it meets the criteria discussed above. A local government's failure to respond to a request for reasonable accommodation or an inordinate delay in responding could also violate the Act. Whether a procedure for requesting accommodations is provided or not, if local government officials have previously made statements or otherwise indicated that an application would not receive fair consideration, or if the procedure itself is discriminatory, then individuals with disabilities living in a group home (and/or its operator) might be able to go directly into court to request an order for an accommodation. Local governments are encouraged to provide mechanisms for requesting reasonable accommodations that operate promptly and efficiently, without imposing significant costs or delays. The local government should also make efforts to insure that the availability of such mechanisms is well known within the community. Q. When, if ever, can a local government limit the number of group homes that can locate in a certain area? A concern expressed by some local government officials and neighborhood residents is that certain jurisdictions, governments, or particular neighborhoods within a jurisdiction, may come to have more than their "fair share" of group homes. There are legal ways to address this concern. The Fair Housing Act does not prohibit most governmental programs designed to encourage people of a particular race to move to neighborhoods occupied predominantly by people of another race. A local government that believes a particular area within its boundaries has its "fair share" of group homes, could offer incentives to providers to locate future homes in other neighborhoods. However, some state and local governments have tried to address this concern by enacting laws requiring that group homes be at a certain minimum distance from one another. The Department of Justice and HUD take the position, and most courts that have addressed the issue agree, that density restrictions are generally inconsistent with the Fair Housing Act. We also believe, however, that if a neighborhood came to be composed largely of group homes, that could adversely affect individuals with disabilities and would be inconsistent with the objective of integrating persons with disabilities into the community. Especially in the licensing and regulatory process, it is appropriate to be concerned about the setting for a group home. A consideration of over - concentration could be considered in this context. This objective does not, however, justify requiring separations which have the effect of foreclosing group homes from locating in entire neighborhoods. This fax was received by FAX -CNB on Line 3 from 6443139 I�� From 6443139 Page: 7/9 Date: 813!2007 4:35:46 PM Q. What kinds of health and safety regulations can be Imposed upon group homes? The great majority of group homes for persons with disabilities are subject to state regulations intended to protect the health and safety of their residents. The Department of Justice and HUD believe, as do responsible group home operators, that such licensing schemes are necessary and legitimate. Neighbors who have concerns that a particular group home is being operated inappropriately should be able to bring their concerns to the attention of the responsible licensing agency. We encourage the states to commit the resources needed to make these systems responsive to resident and community needs and concerns. Regulation and licensing requirements for group homes are themselves subject to scrutiny under the Fair Housing Act. Such requirements based on health and safety concerns can be discriminatory themselves or may be cited sometimes to disguise discriminatory motives behind attempts to exclude group homes from a community. Regulators must also recognize that not all individuals with disabilities living in group home settings desire or need the same level of services or protection. For example, it may be appropriate to require heightened fire safety measures in a group home for people who are unable to move about without assistance. But for another group of persons with disabilities who do not desire or need such assistance, it would not be appropriate to require fire safety measures beyond those normally imposed on the size and type of residential building involved. Q. Can a local government consider the feelings of neighbors In making a decision about granting a permit to a group home to locate in a residential neighborhood? In the same way a local government would break the law if it rejected low- income housing in a community because of neighbors' fears that such housing would be occupied by racial minorities, a local government can violate the Fair Housing Act if it blocks a group home or denies a requested reasonable accommodation in response to neighbors' stereotypical fears or prejudices about persons with disabilities. This is so even if the individual government decision - makers are not themselves personally prejudiced against persons with disabilities. If the evidence shows that the decision - makers were responding to the wishes of their constituents, and that the constituents were motivated in substantial part by discriminatory concerns, that could be enough to prove a violation. Of course, a city council or zoning board is not bound by everything that is said by every person who speaks out at a public hearing. It is the record as a whole that will be determinative. If the record shows that there were valid reasons for denying an application that were not related to the disability of the prospective residents, the courts will give little weight to isolated discriminatory statements. If, however, the purportedly legitimate reasons advanced to support the action are not objectively valid, the courts are likely to treat them as pretextual, and to find that there has been discrimination. This fax was received by FAX -CNB on Line 3 from 6443139 F�� From: 6443139 Page: 8/9 Date: 8/3/2007 4:35:47 PM For example, neighbors and local government officials may be legitimately concerned that a group home for adults in certain circumstances may create more demand for on- street parking than would a typical family. It is not a violation of the Fair Housing Act for neighbors or officials to raise this concern and to ask the provider to respond. A valid unaddressed concern about inadequate parking facilities could justify denying the application, if another type of facility would ordinarily be denied a permit for such parking problems. However, if a group of individuals with disabilities or a group home operator shows by credible and unrebutted evidence that the home will not create a need for more parking spaces, or submits a plan to provide whatever off -street parking may be needed, then parking concerns would not support a decision to deny the home a permit. Q. What is the status of group living arrangements for children under the Tair Housing Act? In the course of litigation addressing group homes for persons with disabilities, the issue has arisen whether the Fair Housing Act also provides protections for group living arrangements for children. Such living arrangements are covered by the Fair Housing Act's provisions prohibiting discrimination against families with children. For example, a local government may not enforce a zoning ordinance which treats group living arrangements for children less favorably than it treats a similar group living arrangement for unrelated adults. Thus, an ordinance that defined a group of up to six unrelated adult persons as a family, but specifically disallowed a group living arrangement for six or fewer children, would, on its face, discriminate on the basis of familial status. Likewise, a local government might violate the Act if it denied a permit to such a home because neighbors did not want to have a group facility for children next to them. The law generally recognizes that children require adult supervision. Imposing a reasonable requirement for adequate supervision in group living facilities for children would not violate the familial status provisions of the Fair Housing Act. Q. How are zoning and land use matters handled by HUD and the Department of Justice? The Fair Housing Act gives the Department of Housing and Urban Development the power to receive and investigate complaints of discrimination, including complaints that a local government has discriminated in exercising its land use and zoning powers. HUD is also obligated by statute to attempt to conciliate the complaints that it receives, even before it completes an investigation. In matters involving zoning and land use, HUD does not issue a charge of discrimination. Instead, HUD refers matters it believes may be meritorious to the Department of Justice which, in its discretion, may decide to bring suit against the respondent in such a case. The Department of Justice may also bring suit in a case that has not been the subject of a HUD complaint by exercising its power to initiate litigation alleging a "pattern or practice" of discrimination or a denial of rights to a group of persons which raises an issue of general public importance. This fax was received by FAX -CNB on Line 3 from 6443139 4 F� From: 6443139 Page: 9/9 Date: 602007 4:35:47 PM The Department of Justice's principal objective in a suit of this kind is to remove significant barriers to the housing opportunities available for persons with disabilities. The Department ordinarily will not participate in litigation to challenge discriminatory ordinances which are not being enforced, unless there is evidence that the mere existence of the provisions are preventing or discouraging the development of needed housing. If HUD determines that there is no reasonable basis to believe that there may be a violation, it will close an investigation without referring the matter to the Department of Justice. Although the Department of Justice would still have independent "pattern or practice" authority.to take enforcement action in the matter that was the subject of the closed HUD investigation, that would be an unlikely event. A HUD or Department of Justice decision not to proceed with a zoning or land use matter does not foreclose private plaintiffs from pursuing a claim. Litigation can be an expensive, time - consuming, and uncertain process for all parties. HUD and the Department of Justice encourage parties to group home disputes to explore all reasonable alternatives to litigation, including alternative dispute resolution procedures, like mediation. HUD attempts to conciliate all Fair Housing Act complaints that it receives. In addition, it is the Department of Justice's policy to offer prospective defendants the opportunity to engage in pre-suit settlement negotiations, except in the most unusual circumstances. 1. The Fair Housing Act uses the term "handicap." This document uses the term "disability" which has exactly the same legal meaning. 2. There are groups of unrelated persons with disabilities who choose to live together who do not consider their living arrangements "group homes," and it is inappropriate to consider them "group homes" as that concept is discussed in this statement. This fax was received by FAX -CNB on Line 3 from 6443139 l�° ATTACHMENT J CAL 1FOItNIA Sr \rt 116VAu1 1. IN1411uu 011.4 31.h 04.r:au 4 % 1 6 A .,, '0 % Residential Care Facilities in the Nei hborhood: Federal, State, and Local Requirements By Lisa K. Foster, M.S. W., AI P.A. 1 Prepared at the Request of Senator Charles S. Poochigicnt } e r'. DEXENisr:a 2002 ckts.o� -ors < Residential Care Facilities in the Neighborhood: Federal, State, and Local Requirements By Lisa K. Foster, MS. W., M.P.A. ISBN 1-58703-168-X li `k Contents EXECUTIVE SUMMARY INTRODUCTION ISSUE.......... DIFFERENT RESIDENTIAL CARE FACILITIES DESCRIBED ......... ......... ............... _ ........ ..... ..... ........._...................II LICENSING AGENCIES AND TYPES OF FACILITIES ................................................................. ............................... 11 FEDERALREQUIREMENTS........_ ................._................_.........._......._..._.............___.. _........._..................I5 FAIRHOUSING ACT .................................................................................................................... ............................... 15 AMERICANS WITH DISABILITIES ACT ...................................................................................... ............................... 16 STATE REQUIREMENTS AND RESPONSIBILITIES ........................ _ ............... _ ........ .... ..... _ ...... I7 FAIR EMPLOYMENT AND HOUSING ACT AND OTHER LAWS ............................................... ............................... 17 LANDUSE AND ZONING ............................................................................................................ ............................... 17 LICENSINGAND OVERSIGHT ..................................................................................................... ............................... 18 LOCAL REQUIREMENTS AND RESPONSIBILITIES ........... _» ......... .... _ ........ ....... .... ...................... .2I POWERSAND LIMITATIONS ...................................................................................................... ............................... 21 ZONING AND OTHER RESTRICTIONS ....................................................................................... ............................... 21 PUBLICSAFETY .......................................................................................................................... ............................... 22 PUBLICPOLICY ISSUES ........ .............. .........._.......__............._....__......._......._......... ....__................_......23 STATE AND LOCAL RESPONSIBILITIES ...................................................................................... ............................. 23 CARE FACILITIES TASK FORCE ................................................................................................ ............................... 25 PROPOSITION 36- SUBSTANCEABUSE AND CRIME PREVENTION ACT ............................. ............................... 26 COMPLICATED ISSUES NO EASY RESOLUTIONS ................................................................... ............................... 26 APPENDIX A - NEWS ARTICLES ON RESIDENTIAL CARE FACILITIES IN NEIGHBORHOODS.... .......................... .... ................. _......._............_......._......._......._... ................._....._.....27 APPENDIX B- STATE LAWS AND REGULATIONS ON RESIDENTIAL FACILITIES ..............33 APPENDIX C - STATE LAWS RELATED TO SITING OF RESIDENTIAL CARE FACILITIES35 APPENDIX D - RECENT LEGISLATION RELATED TO SITING OF RESIDENTIAL CARE FACILITIES ( 1997 - 2002} ....... ...... ............ _... ................. ... ....... .......... ........ ....... ............ _.........._._......._.._....37 BIBLIOGRAPHY AND SELECTED RESOURCES...._ .............._.._......._......_......._... ....._......._......_........4I USEFULWEBSITES ..................................................................................................................... ............................... 43 NOTES....... .... ..........._................_....__......._......__......._............................_......._................. _......»...»......._....__...45 `r 5 Acknowledgements The author thanks the many individuals who provided information and helped her understand this issue, especially her contacts at the League of California Cities and at the California Departments of Social Services, Alcohol and Drug Programs, and Health Services. She also thanks Roz Dick and Judy Hust for their editing and other production support on this report. Internet Access This report is also available through the Internet at the California State Library's home page (www.fibrarv.ca.gov) under CRB Reports. Executive Summary During the past decade, local governments have expressed ongoing concerns about the impact of federal and state laws on land use decisions affecting residential care facilities (including group homes). It is widely accepted that persons with physical and mental disabilities, and other special needs, deserve to live in the community — in contrast to an institution— and that facilities located in residential neighborhoods allow them to participate in, and become a part of, that community. However, local governments face concern from homeowners that these residential facilities will have a negative impact on their neighborhoods. The right of individuals with special needs to live in the community versus the right of neighbors to preserve the integrity of their neighborhood results in the longstanding conflict between federal, state, and local government requirements that affect land use regulation. This report identifies these requirements and their impact on the placement of residential care facilities in communities. DIFFERENT POSITIONS Community members generally agree that persons with disabilities and other special needs deserve to live in a community setting like a residential care or treatment facility instead of being isolated and institutionalized. But, it is a common reaction to feel uneasy, concerned, or fearful when a facility moves in next door or down the street. Advocates and facility licensees point out that care and treatment facilities have to be put in someone's neighborhood. They argue that neighbors' fear is largely unfounded; they point to examples of facilities peacefully coexisting with neighbors and studies that conclude that residential care facilities do not have a negative affect on neighborhood safety and property values. In addition, advocates find that neighbors are often uninformed about the facility program and residents, which leads to misconceptions. However, communities do experience problems with facilities. Sevent)2two cities responding to a 1999 League of California Cities survey had received one or more complaints ranging from increased traffic, noise, and other neighborhood disturbances — to code violations — to criminal activities such as assaults and burglaries. The majority of complaints involved facilities that serve youth, individuals with mental illness, and individuals with alcohol or drug addictions. BACKGROUND In 1977, the Lanterman Developmental Disabilities Act established the right of Californians with developmental and physical disabilities to receive treatment and live in "the least restrictive environment." This means that, instead of being institutionalized, persons with special needs are entitled to live in normal residential surroundings where they can experience maximum independence and participate in community life while California Research Bureau, California State Library 1�q receiving services and care. However, when residential care facilities began opening in neighborhoods, the event often triggered community fears. In response, local governments used land use regulations, especially zoning, to exercise control over where facilities located. Over the years a number of legislative actions have affected this local response. Federal laws were enacted to promote the integration of individuals with disabilities into the community and prohibit discrimination against them. California enacted its own laws to prohibit discrimination in housing opportunities. In addition, several court cases clarified how federal and state laws interact with local government responsibilities. More recently, the California Senate created a task force in 1997 to analyze and report on the issues relating to facility oversight and placement. And in 2000, California voters approved Proposition 36, the Substance Abuse and Crime Prevention Act. This act diverts thousands of nonviolent drug offenders from prison into community treatment programs, including residential treatment facilities. LICENSED RESIDENTIAL CARE FACILITIES There are over 15,000 licensed residential care facilities throughout the state. Four state agencies are responsible for licensing and overseeing the range of community -based residential facilities. Several types of facilities provide services to diverse populations. Residential care facilities are designed for individuals who require 24 -hour supervision but who do not generally need medical care beyond routine health checks and medication monitoring. Residents generally share responsibilities, meals, and recreational activities; they attend schools, work, and use other services in the community. The California Department of Social Services licenses group homes and small family homes for children and youth Group Homes provide supervision and services in a structured environment primarily for children and youth in the foster care system. Small Family Homes provide care in a family setting for six or fewer children with physical and developmental disabilities. In addition, the department licenses facilities for adult and elderly residents who are not able to provide for their own daily needs, have AIDS or HIV, or are recovering from mental illness. The Department of Alcohol and Drug Programs (DAPD) licenses Alcoholism or Drug Abuse Recovery or Treatment Facilities which provide a range of services in a supportive environment for adults who are addicted to alcohol or drugs. In addition, the Department of Corrections uses DAPD- licensed facilities to provide community-based drug treatment and recovery services to offenders under the Substance Abuse and Crime Prevention Act. The Department of Health Services licenses community�based residential health facilities that provide skilled nursing care on a continuous and intermittent basis. These facilities serve adults and children who are severely developmentally or physically disabled, or are terminally dl. 2 California Research Bureau, California State Library FEDERAL REQUIREMENTS Two federal laws impact local land use practices with respect to residential care facilities. The Fair Housing Act, as amended in 1988, promotes the integration of individuals with disabilities into the community. The broad protections of this act apply to residential care facilities because most residents have disabilities of some kind. In addition, group homes for children are protected under the Act's "familial status" provision. While the Act does not pre -empt local authority over zoning laws, it applies to local government entities and prohibits zoning or land use decisions or policies that exclude or otherwise discriminate against individuals with disabilities and other protected classes. The Act also requires that that local government make reasonable accommodations in policies and practices when accommodations are necessary to provide equal housing opportunities. The 1990 federal Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities. The subsequent Supreme Court "Olmstead" decision clarified that the ADA requires states to place individuals in community settings rather than institutions. STATE REQUIREMENTS AND RESPONSIBILITIES State laws also impact local land use practices with respect to residential care facilities. The Cal ifornia Fair Employment and Housing Act, like the federal FHA, prohibits housing discrimination based on disability and familial status. Other state laws protect residents with disabilities from discrimination in housing, and require that reasonable accommodation or modification of the premises be made for individuals with disabilities. Residential care facilities must have a valid license to operate. The licensing process consists of a background check on the applicant and an on -site facility inspection to ensure that the facility meets health and safety standards. When all health and safety requirements are met, the licensing agency issues a license valid for two years. It conducts a comprehensive facility evaluation on an annual or bi -annual basis. Deficiencies are cited and monetary penalties can be assessed if the facility does not come into compliance with licensing laws and regulations. In addition, the state licensing agency investigates complaints and addresses the concerns of neighbors and other community members. State law requires that residential care facilities that serve six or fewer residents be considered a residential property and be treated the same as a single- Family home. This means that local government can impose on these facilities only those local use restrictions or fees that apply to other single - family residences. State laws also address overconcentration of facilities. Except for residential facilities for the elderly and alcohol and drug facilities, new residential care facilities must be located at least 300 feet from another facility. Local governments can object to requests for placement closer than these limits. California Research Bureau, California State Library Ib� LOCAL REQUIREMENTS AND RESPONSIBILITIES Cities and counties have authority to adopt local land use and related regulations, such as zoning and permit requirements. Unlike small facilities, large residential care facilities (those with seven or more residents) are subject to local land use regulations and other restrictions such as special pemilt requirements (for example, having to obtain a local health department permit for central food service). Local governments may impose notification and public hearing requirements. However, the requirements must not apply exclusively to residential care facilities, and local governments must follow state - mandated procedural requirements such as holding hearings for zoning decisions. Local government entities are required to make reasonable accommodations for programs serving individuals with disabilities. In some instances, accommodation may include exceptions to zoning ordinances for large facilities with seven or more residents. Public safety is a major issue related to residential care facilities in the community. Service providers contend that the safety issue is often used as a smokescreen by neighbors and local governments for taking discriminatory actions that are based on fear. However, some neighbors have experienced problems that impact neighborhood safety (such as assaults, threats and other actions by facility residents as described in the League of California Cities survey). When public safety issues occur, federal and state laws do not pre-empt local authority or responsibility to deal with it. Local rules that are enacted and enforced to provide for the community's safety are not prohibited under federal or state law as long as they are applied to all community members and groups. "Elected officials and neighbors have a duty to welcome group homes and other community residences, and to educate themselves and their colleagues about the need for such housing options, and the requirements of the FHA and the ADA, just as providers and residents have a duty to be good neighbors and to respond to breaches of that duty with corrective action" League ofCalifornia Cities, 2002 PUBLIC POLICY ISSUES The overarching public policy issue continues to be that of balancing the rights of individuals with special needs to five and participate in the community with the rights of the communities and individuals to protect the welfare of their families and neighborhoods. This issue sometimes plays out as a conflict between state (and federal) requirements to protect individuals from discrimination and local governments' right and responsibility to exercise control over its communities. The League of California Cities and a coalition of advocates for community care residents suggest that three issues need to be addressed to reconcile residential care facilities and community concerns. The first is a comprehensive plan to be used as a tool to address community needs while integrating residential care facilities into neighborhoods. The second is uniform standards and universal licensing of facilities for children and youth to protect residents and the community. The third issue is adequate and affordable housing for residential care facilities. A related policy issue is an equitable distribution of facilities among communities. Neighborhoods with densely clustered facifities do not provide a "normal" community 4 California Research Bureau, California State Library t DID environment for residents; they also change in character. Currently, however, care facilities are not evenly distributed among neighborhoods; they are overwhelmingly located in moderate- and lorwincome neighborhoods. Neighborhoods with several facilities want other communities to take their "fair share." The Senate Concurrent Resolution 27 Care Facilities Task Force analyzed the issues relating to facility oversight and siting. While task force members — local government representatives, service providers, and fair housing advocates — agreed on the need for reform, they disagreed on specific solutions such as limiting facilities. The task force concluded that a long -range approach that promoted quality residential care and a wider dispersal of residential care facilities would be most helpful in addressing the range of concerns. Subsequent legislation and state administrative actions addressed many of the specific recommendations; legislation that would have implemented other recommendations was vetoed, primarily for fiscal reasons. Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (SACPA), brought new attention to the siting issue. Prior to its passage, local governments expressed concern about the proliferation of new recovery or treatment facilities that would be established to meet the demand created by the new act. In addition, fears were heightened because the residents would be convicted drug offenders. There has been a 17% increase in residential treatment capacity as a result of SACPA. Much of this increase is from expanding facilities that are already established in neighborhoods. The Department of Alcohol and Drug Programs reports that cooperation between state and local government entities has been positive. However, some communities are experiencing conflicts between neighbors and facilities. For example, neighbors oppose expanding facilities, and advocates point to long waiting lists for treatment that result from this opposition. COMPLICATED ISSUES, NO EASY RESOLUTIONS In conclusion, there are no easy resolutions to the complicated ongoing issues around siting residential care facilities in the community. Some goals conflict, like local control and federal/state protections. In addition some "quality" issues are hard to legislate. For example, what are the best strategies for making marginal licensed facilities (those that generate the greatest number of concerns and complaints) into quality facilities and good neighbors? A related issue concerns both quality and capacity. Should marginal facilities be tolerated in areas where there are not enough quality facilities to meet the demand? Resolutions that address and balance the needs of neighbors, the needs of residents needing services, and the needs of local government are difficult to identify and achieve. California Research Bureau, California State Library 5 PqI 6 Califomia Research Bureau, Califomia State Library jq Introduction ISSUE During the past decade, local governments have expressed ongoing concerns about the impact of federal and state law on zoning and land use decisions affecting group homes and other residential care facilities. Facilities that are located in residential neighborhoods play an important role in integrating individuals into the mainstream community. Living in the community — in contrast to institutional living — allows individuals with special needs such as physical, developmental, and mental disabilities to live as normally as possible. However, when facilities locate in residential neighborhoods, some homeowners and neighbors become concerned that the facility will pose a safety or other negative impact, and angry with local government that their concern are not being adequately addressed. Balancing the rights of individuals with special needs to live in the community and the rights of neighbors to preserve the integrity of their neighborhood result in a longstanding conflict between federal, state, and local government requirements that impact land use regulation.' It is often unclear to community residents, and others, what requirements apply to facility siting,' and how federal and state requirements affect local government's ability to address a local land use issue. This report identifies the federal and state laws and regulations, and the local laws and ordinances, that impact the siting of group homes and other residential care facilities in neighborhoods and communities. It delineates the responsibilities and requirements of the three governmental levels, and identifies policy issues. (For purposes of this report, the term "residential care facilities" includes group homes) DIFFERENT POSITIONS By and large, community members agree that persons with disabilities and other special needs deserve to live in a community setting like a residential care or treatment facility instead of being isolated and institutionalized. But, it is a common reaction to feel uneasy, concerned, or fearful when a facility moves in next door or down the street. A recent news article headline sums up a frequent neighborhood position: "Treatment centers are great, but put this one elsewhere." z (See Appendix A for some newspaper accounts of recent conflicts between neighbors and residential care facilities) Advocates and facility licensees point out that care and treatment facilities have to be put in someone's neighborhood. They argue that "nimbyism" is based on fear that is largely unfounded. They point to existing facilities that have become accepted and valued neighbors, NIMBY is an acronym for "Not in My Backyard," a phrase that is used in this context to describe resistance from individuals and groups to having residential care facilities located in their neighborhoods. Siting refers to the process of determining a location and Starting operation of a residential facility. California Research Bureau, California State Library 7 1q5 and studies that conclude that residential care facilities do not have a negative affect on neighborhoods in terms of safety and property values.; In addition, advocates find that community members are often uninformed about the population that will be served and why they are there. This leads to misconceptions about the residents and the risks posed by the facility. However, communities do experience problems with facilities. The League of California Cities surveyed over 450 cities in 1999 to identify the number and types of complaints they had received about residential care facilities. Seventy -two cities responded; they identified one or more complaints ranging from increased traffic, noise, and other neighborhood disturbances to code violations. Some cities also reported receiving complaints about criminal activities such as assaults and burglaries. Facilities that serve youth, individuals with mental illness, and individuals with alcohol or drug addictions were identified as the source of the majority of complaints .4 BACKGROUND Prior to the 1970s, persons with physical, developmental, and mental disabilities who were not cared for by family members were cared for in large institutions like state hospitals and training centers. During the 1970s and 1980s, California and other states recognized that these institutions had become `warehouses" that segregated children and adults with special needs from their communities. There were horror stories about the treatment of many residents. In addition, a large number of individuals did not need the extremely costly level of care provided in an institution. Instead, they could more effectively learn life skills and function, with services and support in a family -like environment within the community. In 1977, the Lanterman Developmental Disabilities Services Act established the right of individuals with developmental disabilities to receive treatment and live in "the least restrictive environment.ii5 This means that persons with special needs are entitled to live in normal residential surroundings where they can experience maximum independence and participate in community life while receiving services and care. The Act reflected the general agreement that persons with special needs should be a part of the community. However, the transition from institutional to community care was not a smooth one. Siting new facilities in neighborhoods triggered community fears about living close to a home with several individuals who had disabilities. It raised concerns about safety, crime, and impact on the neighborhood character and property values. In response to community concerns, many local governments used land use regulations, especially zoning, to exercise control over where facilities located. Advocates charged that local governments were reacting to community NIMBYism and supporting neighbors at the expense of their citizens with disabilities. Beginning in the late 1980s, Congress amended the federal Fair Housing Act to promote the integration of individuals with disabilities into the community. It also enacted the American with Disabilities Act to prohibit discrimination against individuals with disabilities. In California, the legislature enacted the Fair Housing and Employment Act 8 California Research Bureau, California State Library 0A to prohibit discrimination in housing opportunities. These federal and state laws impact local land use decisions and requirements. There have been several court cases and legislative efforts over the years to clarify federal and state law. However, questions and different interpretations by resident and neighborhood advocates continue. In 1997, The California Senate passed a concurrent resolution (SCR 27) in response to an increased number of complaints about the proliferation of group homes and residential facilities. SCR 27 established a task force to analyze and report on the issues relating to facility oversight and siting.6 In 2000, California voters approved Proposition 36, the Substance Abuse and Crime Prevention Act (SACPA). Effective July 2001, this act significantly changed the state's criminal justice and drug treatment systems by diverting thousands of nonviolent drug offenders from prison into community treatment, including residential treatment facilities. Prior to its passage, concerns about the impact of more facilities on neighborhoods were raised by local government organizations. California Research Bureau, California State Library 9 '0�5 10 California Research Bureau, California State Library fR(p Residential Care Facilities Described Four state agencies license and oversee more than 15,000 residential care facilities throughout the state. These include several types of facilities that provide services to diverse populations. The facilities vary in size and capacity: from one to more than 100 residents. Small facilities are generally defined as six or fewer beds; large facilities have seven or more beds. In some small facilities, the licensee provides care in his or her own home; in most facilities, paid staff provide care on a live -in or shift basis. Residential care facilities are designed for individuals who require 24 -hoar supervision but who do not generally need medical care beyond routine health checks and medication monitoring. Some people five in residential facilities because they require this level of support, others because they do not have the resources to allow them to live independently (such as funds for personal care attendants.) These facilities provide residents the opportunity to be a part of the community and participate in community life. Residents share responsibilities, meals, and recreational activities; they attend schools, work, and use other services in the community. (See table on page I I for numbers and capacity.) LICENSING AGENCIES AND TYPES OF FACILITIES Department of Social Services The California Department of Social Services (DSS) Community Care Licensing Division licenses a range of community -based residential facilities for adults and children. Group Homes are both small and large facilities that provide supervision and services in a structured environment primarily for children and youth in the foster care system.7 Children who have been removed from home due to parental neglect or abuse are placed in group homes when they need more intensive treatment services than are available in a foster family home. In addition, lower risk juvenile offenders who can benefit from treatment receive probation and are placed in group homes as a Iorwend sentencing option or an alternative to juvenile detention facilities. Group homes also serve children who are not in the foster care system. Some children in group homes have serious developmental or emotional disabilities. Others are participating in alcohol and drug treatment or other programs. Children with less severe physical and developmental disabilities are placed in Small Family Homes. The DSS also licenses facilities (commonly known as "board and care homes') for adult residents who are not able to provide for ... They [children with disabilities] learn how to live as a family. The group home fosters the very same family values our most exclusive residential zoning districts advance." American Planning Association, 1997 their own daily needs. Residential Care Facilities for the Elderly make up the greatest number of community care homes, followed by Adult Residential Facilities. In addition, California Research Bureau, California State Library Sq1 Social Rehabilitation Facilities provide care for adults recovering from mental illness, and Residential Care Facilities for the Chronically Ill serve adults who have Acquired Immune Deficiency Syndrome (AIDS) or the Human Immunodeficiency Virus (HIV) s SOBER LIVING HOMES Sober Living Homes are alcohol- and drug -free residences that allow residents to live in a supportive environment. Although residents generally receive services from a licensed recovery or treatment program, Sober Living Homes are cooperative living arrangements, not residential care facilities. They are not required (or eligible) to be licensed, and are not subject to Department of Alcohol and Drug Program oversight and regulatory requirements. Residents of Sober Living Homes must comply with state landlord /tenant and eviction laws and all local ordinances that apply to other similar residences. DAPD Fad Sheet Department of Health Services Department of Alcohol and Drug Programs The state Department of Alcohol and Drug Programs (DAPD) Licensing and Certification Branch licenses Alcoholism or Drug Abuse Recovery or Treatment Facilities. These facilities provide recovery or treatment services in a supportive environment for adults who are addicted to alcohol or drugs. Services include detoxification, group and individual sessions, education, and recovery planning.9 The state Department of Corrections uses DAPD- licensed facilities to provide community -based drug treatment and recovery services to offenders under the SACPA. (The Department of Corrections does not license residential facilities.) The offender population in community facilities includes inmate mothers and their young children, and homeless parolees who need multiple services. The State Department of Health Services (DHS) Licensing and Certification Division licenses four types of community -based residential health facilities. These facilities provide skilled nursing care on a continuous and/or intermittent basis. Congregate Living Health Facilities are small facilities that provide care to individuals who are severely physically or developmentally disabled, or terminally ill. Intermediate Care Facilities for the Developmentally Disabled provide personal care, training, and supportive services to adults and children in large facilities; Intermediate Care Facilities for the Developmentally Disabled - Habilitative serve the same population in smaller facilities. Intermediate Care Facilities for the Developmentally Disabled - Nursing serve medically fragile adults and children in both small and large facilities. Medically fragile individuals are medically stable but have conditions (such as a feeding tube) that require special care, supplies, or equipment.10 12 California Research Bureau, California State Library 1 Type Licensing Total rNumber<6 Total Capacity Entity Number Group Home DSS 1,660 16,602 Small Family Homes DSS 386 386 1,756 Adult Residential DSS 4,761 4,052 39,419 Facility Social Rehabilitation DSS 71 4 920 Facility Residential Care DSS 6,227 4,703 148,530 Facility/Elderly Residential Care DSS 28 I I 406 Facility/Cbronically III Alcohol & Drug Abuse Recovery/Treatment DAPD 803 325 19,636 Facility Congregate Living DHS 9 9 705 Health Facility Intermediate Care DHS 13 Not 1 019 Facility/DD Available Intermediate Care DHS 780 Not 4,854 Facility/DD- Habilitative Available Intermediate Care DHS 307 Not 1 877 Facility/ DD- Nursing Available ' TOTAL 15,045 10,843 235,724 Sources: DSS (9115102), DAPD (9130102); and DHS (8126102) Califomia Research Bureau, California State Library 13 J �'\ 14 California Research Bureau, California State Library 0 Federal Requirements FAIR HOUSING ACT The broad protections of the federal Fair Housing Act (FHA), as amended in 1988, apply to nearly every type of housing, including residential care facilities. The Act prohibits discrimination on the basis of specified characteristics in sale, rental, zoning, land use restriction, and other rules. 11 The Act does not pre-empt local authority over zoning laws. However, it applies to local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected classes, such as individuals with disabilities (or people associated with such individuals, lice families). Residential care facilities are generally covered under the FHA as most residents have disabilities of some kind. In addition, court cases have found that group homes for children are protected under the Act's "familial status" provision that addresses discrimination against children under age 18 in the household. There has been a significant amount of litigation to interpret and clarify FHA protections. In addition, the United States Department of Justice and the THE FAIR HOUSING ACT The Fair Housing Act (FHA) is included in Title VIII of the Civil Rights Act, enacted by Congress in 1968. The FHA addresses stale and federal housing barriers and segregation by prohibiting housing discrimination based on race, color, religion, sex and national origin. In 1988, Congress passed the Fair Housing Amendments Act (Public Law 100430) to strengthen its enforcement provisions. It added "handicap" (disability) and "familial status" to the list of protected classes under the FHA. The definition of disability under the Act includes mental illness, developmental disabilities, physical impairments, persons with AIDS or HIV, and persons recovering from addiction who are not currently using illegal drugs. The FHA does not cover individuals who are currently using. or have been convicted for the manufacture and distribution of, illegal drugs. In addition, the FHA protections do not apply to individuals with disabilities if there is recent, credible evidence that his or her conduct "would constitute a direct threat to the health or safely of other individuals ... for will cause] substantial physical damage to the property of others." Department of Housing and Urban Development issued a joint statement in 1999 on the impact of the FHA on group homes and local land use. 12 The Joint Statement clarifies that the FHA makes it unlawful to: ■ Use land use policies or take action that treats groups of individuals with disabilities less favorably than other groups. Take action against, or deny, a permit for a home because of the disability of individuals who live or would five there. • Refuse to make reasonable accommodations in land use and zoning policies and procedures where such accommodation may be necessary to afford individuals or groups with disabilities an equal opportunity to "use and enjoy housing." California Research Bureau, California State Library 15 Via) Reasonable Accommodation The FHA requires that local governments make reasonable accommodations in "rules, policies, practices, or services," when accommodations are necessary to provide equal housing opportunities. The reasonable accommodations requirement applies to zoning ordinances and other land use regulations and practices. The accommodation should be the least drastic measure necessary to achieve its purpose. For example, a care facility that serves children or adults with physical disabilities could request that ramps, wide doorways, and other building renovations be allowed to accommodate residents in wheelchairs. A reasonable accommodation is determined on a case -by -case basis. Local governments can deny a request for reasonable accommodation if it would "fundamentally alter the nature of the ordinance, neighborhood, or local zoning procedures; undermine the legitimate purposes and effects of existing zoning regulations; or impose undue financial and administrative burdens on the municipality."] 3 THE AMERICANS WITH DISABILITIES ACT The federal Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications. An individual with a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, or a person who is perceived by others as having such an impairment. AMERICANS WITH DISABILITIES ACT Title II of the 1990 Americans with Disabilities Act (ADA) covers all state and local government activities, regardless of the government entity's size. It also applies whether or not the local government is receiving federal funds. 14 Olmstead Decision In 1999, the United States Supreme Court issued a decision on the impact of the ADA on community care. The "Olmstead" decision clarified that the ADA requires states to place persons with disabilities in community settings rather than institutions when three conditions are met: 1) treatment professionals have determined that community placement is appropriate; 2) the individual does not object to community placement; and 3) the placement can be reasonably accommodated, taking into account the resources available to the state and the need of others with disabilities. 15 16 California Research Bureau, California State Library State Requirements and Responsibilities FAIR EMPLOYMENT AND HOUSING ACT AND OTHER LAWS Like the FHA, the California Fair Employment and Housing Act (FEHA) prohibits housing discrimination based on disability, familial status, and other protected factors. Under FEHA, discriminatory practices include treating individuals or groups in protected classes differently than others, or imposing different requirements. In addition, state law under the Unruh Civil Rights Act, the Lanterman Developmental Disabilities Services Act, and the Lanterman- Petris -Short Act protects individuals with mental, developmental, or physical disabilities from discrimination in the provision of housing. Disability rights sections in the Civil Code prohibit discrimination and require reasonable accommodation or modification of the building to enable residents with disabilities to have equal access and "full enjoyment of the premises. "I6 LAND USE AND ZONING Small Facilities Treated Like Single- Family Homes State law requires that residential care facilities that serve six or fewer residents be considered a residential property. ("Six or fewer persons" generally refers to the number of residents and does not include facility operators and staff.) These facilities must be treated the same as a single - family home. As a result, small residential care facilities are exempt from all local land use and zoning restrictions, taxes, or fees that do not apply to single -family homes. In addition, small facilities are not required to notify local authorities or neighbors of their intent to move into the neighborhood or of their presence. 17 (See Appendix C for relevant statutes.) Overconcentration of Facilities State law requires that new health and community care facilities — group homes, small family homes, adult residential care, and social rehabilitation facilities — be sited at least 300 feet from another residential health or community care facility. Congregate living health facilities are to be sited at least 1,000 feet from any other facility. Residential care facilities for the elderly and alcoholism or drug abuse recovery or treatment facilities are excluded from overconcentration provisions. (See Appendix C for relevant statutes.) Local government can request that an application for licensure be denied on the basis of overconcentration. Prior to approving a license, the licensing agency must notify them about the new facility's location to allow them the opportunity to object or dispute the overconcentration determination. (The Department of Social Services, for example, sends a form to the local government entity that states whether the proposed facility would result in overconcentration. If the local government entity does not object, the license is granted.) California Research Bureau, California State Library 17 X6 ) LICENSINGAGENCY RESPONSIBELnUS Approve /deny license applications Enforce licensing laws and regulations Maintain public files on licensed facilities Investigate complaints Revoke licenses and impose fines when necessary LICENSING AND OVERSIGHTI$ Residential care facilities are required by state law to have a valid license to operate. State licensing agencies are responsible for overseeing residential care facilities and ensuring that they are in compliance with health and safety laws and regulations. (Licensing does not regulate facilities' treatment programs.) In addition, the licensing agency provides public information about specific facilities, such as licensing status, complaints lodged against them, and pending investigations. (See Appendix B for relevant statutes and regulations.) The Licensing Process The licensing process is essentially the same among state licensing agencies. An orientation for potential applicants covers licensing requirements and the licensee's responsibilities. It includes issues such as determining a location, informing neighbors, and addressing neighborhood expectations and concerns. The formal approval process begins when the licensing agency receives a completed application and fee payment. (With some exceptions, there is a licensing fee for residential care facilities.) The licensing agency completes a background check on the applicant and a facility inspection. It determines the facility capacity based on space and any fire clearance conditions. When all requirements are met, the licensing agency issues a license valid for two years, unless it is extended. (Group homes are initially issued a provisional license; after 12 months they receive a permanent license if they have complied with licensing laws and regulations.) The licensing agency conducts a comprehensive evaluation to ensure that all residential facilities remain in compliance with laws and regulations. (The Department of Social Services conducts annual evaluation visits; the Department of Alcohol and Drug Programs visits at least once every two years.) Prior to the visit, the licensing entity reviews the facility file. It may contact local law enforcement and neighbors if there has been a complaint, or if the facility has a history of problems. In addition, the licensing agency follows up on neighborhood issues that have surfaced. The licensing agency inspects the physical plant; reviews administrative, personnel, and resident files; and interviews staff and residents. It also reviews the staffing ratios and staff qualifications, and how the facility addresses neighborhood complaints. When deficiencies are found, the licensing agency gives a written notice to the licensee and verifies in a follow up visit that the corrections were made. If the deficiencies are not corrected, the licensing agency issues civil penalties; it can ultimately revoke the facility's license if the licensee does not comply with requirements. 18 California Research Bureau, California State Library o 0� Staffing and Facility Maintenance Most complaints about residential facilities stem from lack of supervision. Inadequate staffing and supervision of facility residents can directly affect the safety of both the residents and the neighborhood. In addition, property maintenance issues create friction. A run -down facility in need of repair may create safety concerns. In addition, its .condition reflects not only on the facility but on the neighborhood's appearance. Licensing regulations require that at least one qualified staff person be with the residents and/or on the premises at all times. The minimum number of direct care staff required to be present is based on the number of residents. All staff must be at least 18 years of age, free of communicable disease, and have a medical clearance and first aid certification. In addition, staff must undergo a criminal record clearance (and a child abuse check to work in a small family home or group home). Staff must also receive appropriate training. In addition, licensing regulations require that residential care facilities be "clean, safe, sanitary and in good repair at all times for the safety and well -being of residents, employees, and visitors." For example, licensees must keep doorways, porches and walkways free of obstruction. Resident Information and Confidentiality Federal regulations and state laws require that facility licensee and staff respect and protect the residents' right to privacy and confidentiality. In addition, access to information about children in group homes is restricted to staff, the licensing agency, and the child's authorized representative unless a juvenile court judge issues a court order allowing access to other designated individuals. 19 The Complaint Process The state licensing agency is responsible for addressing the complaints and concerns of neighbors and other community members. The complainant's identity can be kept confidential. If requested, the licensing agency will notify the complainant of the outcome after investigating the complaint. Neighborhood Complaint Procedures "Group homes successfully serving children with the same needs often fare very differently in their relationships with neighbors and the community in general. Sometimes this is because of local circumstances beyond the control of the licensee. More often, however, this is because of differences in approach to local communication. Public relations are importantr, ' The Department of Social Services and the Department of Alcohol and Drug Programs have each published "good neighbor" guidelines for group homes and alcohol and drug treatment facilities. These resource guides address neighborhood concerns about safety, client and staff conduct, and poor maintenance. They include strategies for establishing and maintaining positive relationships with neighbors and the community. State law requires that group homes with six or fewer residents have written neighborhood complaint procedures that include a method of immediate response to complaints and incidents. The group home's licensee (or designated person) California Research Bureau, California State Library IS must investigate and respond to the person making the complaint or reporting the incident. In addition, the licensee must be available at a specific time each week to meet residents and learn of neighborhood problems. 21 20 California Research Bureau, California State Library M Local Requirements and Responsibilities POWERS AND LIMITATIONS The California Constitution gives local governments authority to enact and implement local planning and land use regulations to protect the public health, safety, and welfare. They have the right to adopt and enforce planning and land use requirements with one caveat: local ordinances do not conflict with federal and state laws. As a result, federal and state laws that prohibit discrimination related to housing (such as the FHA, ADA, and FEHA) impact the authority of local governments in this area ZONING AND OTHER RESTRICTIONS Each local government entity is required to adopt a general plan that includes a land use element. The primary means of implementing general plan goals is through zoning ordinances. Zoning is based on the concept of separating land uses according to their impact.22 Local ordinances identify use zones (such as residential and commercial), the land uses permitted on a given site, and the standards for each zone's permitted use. Local governments also issue conditional (special) use permits to allow facilities that are considered essential or desirable to locate in a zoning district restricted to different uses. Differences Between Small and Large Facilities As stated in the previous section, small facilities (those that house six or fewer residents) are considered to be a residential use of property. They must be treated the same as single - family residences. In contrast, residential care facilities with seven or more residents are not considered residential property. These large facilities are subject to local land use, zoning ordinances, and other restrictions such as special permit requirements (for example, having to obtain a local health department permit for central food service). Reasonable Accommodation Local government entities are required to make reasonable accommodations for programs serving individuals with disabilities. In some instances, accommodation may include exceptions to zoning or other ordinances for care facilities. For example, in some communities, alcohol and drug facilities located in residential neighborhoods have received approval from local government to increase the number of residents in existing facilities in order to reasonably accommodate the need to serve additional individuals. California Research Bureau, California State Library WHERE TO GO WITH COMPLAINTSICONCERNS Small Facilities (six or fewer) are treated by stale law as residential properties; they have the same restrictions as other single family residences. The stale licensing agency is responsible for addressing concerns and complaints about the facility, staff, and residents. Large Facilities (seven or more) are subject to local requirements and restrictions. These generally include advance notice and a public hearing process. The county or city is responsible for addressing concerns and complaints about local requirements and processes. The stale licensing agency is responsible for addressing concerns and complaints about the facility, staff, and residents. 21 a �� Public Notification and Hearings Like other individual residential properties, small facilities are not required to provide notice that they are moving into a neighborhood or community. In addition, their decision about where to locate the facility is not subject to a public hearing process. In contrast, local governments may impose notification and public hearing requirements on large facilities for seven or more residents. However, local governments may not establish requirements that apply exclusively to residential care facilities as this would be a violation of the FHA. 23 In addition, local governments must follow state- mandated procedural requirements such as holding hearings for zoning decisions. PUBLIC SAFETY Safe neighborhoods are a critical concern to local governments, neighbors and other community members. Facility licensees, stag and residents share this concern. Facility licensees, advocates, and service providers contend that the safety issue is often used as a smokescreen by neighbors and local governments for taking actions that are discriminatory and based on reasons other than safety. In their view, the common perception that care facility residents will cause problems is generally based on fear, not facts. However, some neighbors and local governments have experienced problems that impact neighborhood safety (such as assaults, threats, and other actions by facility residents as described in the League of California Cities survey). Federal and state laws do not pre-empt local authority or responsibility to deal with public safety issues when they occur. Local riles that are enacted and enforced to provide for the community's safety are not prohibited under federal or state law as long as they are applied to all community members and groups. In addition, persons with or without disabilities who present a direct threat to the persons or property of others are not protected under anti - discrimination laws. 24 22 California Research Bureau, California State Library ED Public Policy Issues STATE AND LOCAL RESPONSIBILITIES The overarching public policy issue continues to be that of balancing the rights of individuals with special needs to live and participate in the community with the rights of the individuals to protect the welfare of their families and their neighborhoods. This issue often plays out as a conflict between state (and federal) requirements to protect individuals from discrimination and local governments' right and responsibility to exercise control over its communities. At other times, the conflict remains largely at the local level. While ensuring that all citizens are protected from discrimination, local governments must be sensitive to the needs of their citizens who reside in care facilities and be responsive to the concerns of individuals who live in and wish to preserve the character of their neighborhoods and communities. Reconciling Residential Care Facilities and Community Concerns The National League of Cities and the Coalition to Preserve the Fair Housing Act (a coalition of numerous advocacy groups) have been working together on balancing rights and concerns. In 1999, they published a joint document that describes their differing positions and areas of consensus. They identify three issues that need to be addressed in reaching a consensus on siting residential facilities for individuals with disabilities and facilities for children. These issues also pertain to other community residential care facilities.zs Comprehensive Plan to Balance Needs The first issue is the need for a state or local comprehensive plan that is developed in consultation with community stakeholders and used as a tool for balancing needs and providing for the welfare of all citizens on a long -range basis. The plan will provide a guideline for establishing ordinances that take into account community needs while integrating residential care facilities into neighborhoods throughout the community. California Research Bureau, California State Library STATE OF CALIFORNIA POLICY ON RESIDENTIAL CARE FACILITIES "The Legislature hereby declares that it is the policy of this stale that each county and city shall permit and encourage the development of sufficient numbers and types of residential care facilities as are commensurate with local need." (Welfare and Institutions Code) Similar intent language exists for facilities serving persons with mental illness, persons addicted to alcohol or drugs, persons with life - threatening illness, persons with developmental disabilities and the elderly. LEAGUE OF CALIFORNIA CITIES POLICY ON RESIDENTIAL CARE FACtLrrIES " The League supports permitting cities to exercise review and land use regulation of group home facilities and residential care facilities in residential neighborhoods including the application of zoning, building and safely standards. Stale and county licensing agencies should be required to confer with the city's planning agency in determining whether to grant a license to a community care facility. The League recognizes that better review and regulation of residential care facilities will protect both the community surrounding a facility and the residents within a facility from a poorly managed facility or the absence of stale oversight." 23 Uniform Standards and Universal Licensing The second issue is the need for uniform standards and universal licensing of facilities for children and youth. State licensing agencies must provide adequate oversight to ensure that licensing requirements are strictly enforced to provide appropriate supervision and support of residents and protect the surrounding community. (Similarly, the need for mandated licensure for Sober Living Homes, or an alternative means of oversight, has been an issue for several years. The need for oversight is based on the same premise: consistent standards would protect and benefit both the residents and the community. Cities responding to the League of California Cities survey reported that Sober Living Homes were responsible for a large number of complaints. To date, however, legislative efforts to regulate them have failed.) Adequate and Affordable Housing The third issue is the need for adequate and affordable housing. Housing is necessary for children and adults with special needs to live in the community. The lack of adequate housing is a key problem facing individuals who need to live in residential care. Responsibility for addressing the housing problem cannot be limited to a specific community or jurisdiction. Instead, broad regional approaches— using collaborative planning processes that have adequate resources — must be implemented. Fair Share Among Neighborhoods A related policy issue is the equitable distribution of facilities among communities. In order for children and individuals with special needs to live as normal a life as possible, facilities should be located in a residential neighborhood. In addition, facility residents should be able to remain in their own communities, close to their families. To accomplish both goals, facilities should be scattered throughout residential districts rather than be concentrated in any single neighborhood or community. Neighborhood associations and many advocates for individuals with special needs agree that a neighborhood composed primarily of residential care facilities would adversely impact the neighborhood and all its residents, including facility residents. Facilities that are so densely clustered — overconcentrated — as to recreate an institutional environment defeat the purpose of community -based care. 26 Currently, residential care facilities are not evenly distributed among neighborhoods (or counties). Facilities are overwhelmingly located in moderate- and low- income neighborhoods. Many are concentrated in rural areas and counties. As a result, many of these communities feel they are being unfairly targeted. They charge that other neighborhoods and communities are successfully avoiding their "fair share" of residential care facilities and call for a more even distribution. Housing costs are generally identified as the major factor in location decisions. Facilities also cite accessibility to services for the target population as a reason for locating in 24 Califomia Research Bureau, California State Library a�� specific areas. However, because there is generally no documentation of need for residential care facilities in specific communities, it is not known whether clusters of facilities represent over - concentration or instead reflect an appropriate response to the needs within that community.27 CARE FACILITIES TASK FORCE In 1998, the SCR 27 Care Facilities Task Force — comprised of local government representatives, social service providers, and fair housing advocates — analyzed the issues relating to facility oversight and siting to recommend needed changes in state law. While members agreed on the need for reform, they disagreed on what direction such reform should take. Local officials supported legislative action that would allow grea ter local involvement (such as increasing the required distance between facilities, placing moratoriums on new facilities, and other measures that would limit facility expansions and prevent new facilities in communities that already had several facilities). In contrast, service providers who had experienced neighborhood resistance and proponents of fair housing opposed such action and stressed the importance of retaining existing state and federal fair housing protections and equal opportunities for facility residents. Fair housing advocates further maintained that existing laws allow persons with disabilities the right to choose where to five regardless of the number of persons with disabilities in a particular community, and that spacing and density restrictions violate these laws. The task force concluded that that there were no quick solutions to the complicated issues and concerns. Instead, they presented long -range recommendations that would promote quality residential care and a wider dispersal of residential care facilities. The task force recommended establishing pilot programs to try out new approaches, and implementing statewide mechanisms to enhance quality of services while preserving neighborhoods. It recognized that there would be costs associated with implementing these recommendations. Legislation to implement the Task Force recommendations was contained in several bills. Some were vetoed or died in committee; however, over half of the recommendations were implemented through legislation or were administratively addressed. For example, legislation created a pilot project to encourage group homes to work with neighborhood residents to resolve issues. The pilot sites experienced a significant reduction in complaints. This reduction was attributed to ongoing communication and coordination among the licensing agency, local law enforcement, and other local government entities. Based on this experience, in 1999 the Department of Social Services directed all licensing offices to establish local task forces if requested by the community. 29 A 1999 group home reform bill included a number of facility management and operations improvements for group homes. It required a neighbor complaint process to respond to neighbors' concerns, a provisional license process to more easily revoke the license if needed, financial audits, community advisory boards, staff training, and an expedited fingerprint process. In addition, "Good Neighbor" guidebooks were developed and California Research Bureau, California State Library 25 aIN distributed to group homes and alcohol and drug facilities. (See Appendix D for a description of bills related to facility siting.) PROPOSITION 36 — SUBSTANCE ABUSE AND CRIME PREVENTION ACT The Substance Abuse and Crime Prevention Act (SACPA) brought new attention to the siting issue. Effective January 2001, non - violent adult offenders charged with simple drug possession or drug use offenses complete treatment in the community instead of a jail or prison term.30 Prior to its passage, local governments expressed concern about the proliferation of new recovery or treatment facilities that would be established to meet the demand created by the new act. In addition, fears were heightened because the residents would be convicted drug offenders. The Department of Alcohol and Drug Abuse Prevention reports that the treatment capacity across the state has expanded significantly as a result of SACPA (including a 17% increase in licensed residential programs).31 Much of the increase in community treatment/recovery beds is from expanding facilities that are already established in neighborhoods, not from new facilities. And, the "new" drug offender population generally consists of the same persons who have previously been in established facilities — they are just entering treatment programs via a new mechanism. The Department reports that cooperation among state and local government entities in implementing SACPA has been positive. However, some communities are experiencing conflicts between neighbors and facilities. For example, some neighbors oppose expanding facilities, and advocates point to long waiting lists for treatment that result from this opposition. 32 COMPLICATED ISSUES, NO EASY RESOLUTIONS In conclusion, there are no easy resolutions to the complicated ongoing issues around siting residential care facilities in the community. Some goals conflict, like local control and federal/state protections. In addition some "quality" issues are hard to legislate. For example, what are the best strategies for making marginal licensed facilities (those that generate the greatest number of concerns and complaints) into quality facilities and good neighbors? A related issue concerns both quality and capacity. Should marginal facilities be tolerated in areas where there are not enough quality facilities to meet the demand? Resolutions that address and balance the needs of neighbors, the needs of residents needing services, and the needs of local government are difficult to identify and achieve. 26 California Research Bureau, California State Library low Appendix A — News Articles on Residential Care Facilities in Neighborhoods [See next page] California Research Bureau, California State Library 27 a 1 GROUP HOMES: BIG NEED, BIG FEARS By MAREVA BROWN, Bee Staff Writer Teen Sex offenders need help —where to house them can be toughest part. Inside a dark - brown, four - bedroom house in the Sacramento region live six young teenagers who are learning not to be the rapists and child molesters of tomorrow. The boys, most of them 13 and 14 years old and victims of molestation themselves, have been placed in this group home because, despite their sex offenses, probation officers believe they will benefit from intensive therapy and do not pose a significant threat to society. Staff members take precautions: Youths are bused to a private school so they won't mix with other children. They don't go outside without an adult escort, and they aren't allowed to play basketball in the street like the other neighborhood kids. But the appearance of this and five other similar group homes on quiet residential streets in a neighborhood near Sacramento over the past decade have been enough to prompt some neighbors to sell their homes. Last month, similar unrest broke out in Elk Grove, where a newly opened group home for youthful sex offenders is being opposed in a highly publicized battle. The city has sued the state, saying it wasn't notified about the home, and wants the state to remove it. However, behavioral experts say group homes are the best - and perhaps last - chance to stop young sexual offenders from developing into hard -core predators. "It's a horrible conflict," said Marti Fredericks, executive director of the agency that runs the Sacramento -area homes, but not the one in Elk Grove. She agreed to discuss her program on condition that its name and location not be revealed because she is prohibited by law from identifying them. "We want to feel safe in our neighborhoods. Nobody, including me, would want to have a group home next door," Fredericks said. "But we have to be in somebody's neighborhood. So you try to make the best choice you can, where you'll have the least amount of impact." By law, group homes are designed to provide youths with the most homelike setting possible with therapists and mentors to guide them to productive lives. For years, California law has been based on the philosophy that troubled children should receive help, not punishment, because children are more likely to be rehabilitated than adults. When group homes first became licensed about 20 years ago, they were modeled on that line of thought. "The notion is that these kids are not developmentally finished," said Carroll Schroeder, executive director of the California Alliance of Child and Family Services, a lobbying group for nonprofit agencies that aid troubled families. "They're still growing up. And adolescents are always trying on new ways of acting, new friends. So there really is a belief that these kids can change. Nothing has to be a lifelong pattern." Experts say that is especially true when dealing with young sex offenders. Most teens have not yet cemented their sexual habits, and at least one psychologist who treats these sex offenders said that allows a critical window of opportunity for therapy. "The earlier you get them, the more malleable the sexual behaviors are," said Baljit Atwal, who evaluates young offenders and makes recommendations for care to Sacramento County's juvenile court judges. "With an adult, their personality is developed, and it's very, very difficult to change them at that point. Especially their sexual attractions." [continued on next page] 28 California Research Bureau, California State Library ),IA Atwal said she looks at a variety of criteria when deciding whether to recommend that a child go to a group home, the California Youth Authority, or elsewhere. These include the level of force or aggression used to subdue the victim, the level of criminal sophistication, the offender's willingness to admit the crime and whether the offender was himself a victim of molestation. Typical group -home candidates are first -time offenders who have not been physically aggressive with their victims and have chosen members of their own family to victimize. In most cases, Atwal has found, young offenders are repeating abuses that happened to them. "Would we get someone (bound for a group home) who stalks their victims and whisks them away from their local park or school? Probably not," said Steve Clanton, who oversees the placement unit, which includes group homes, for Sacramento County's Probation Department. "Any type of real predatory, violent sexual act would get (a youth sent to) the California Youth Authority." Of the group -home youths she treats, Frederick said, boys often select victims who mirror the appearance and circumstances of their own molestation. "He's kind of gotten frozen at that age where he was molested," Fredericks said. "And so we are really talking through their own victim issues, so they can understand why they molest others." Across California, 11,500 children - nearly 12 percent of the state's foster care population - live in nearly 1,700 group homes. Sacramento County has 98 group homes dedicated to treating a variety of adolescent problems. Each is specially designed to teach children to variously manage their anger, stop drinking or doing drugs, or stop molesting young children. Although the Elk Grove home, and the homes that Fredericks runs, cater to juvenile delinquents, just 6,800 of the state's 97,000 foster children have faced criminal charges. The rest have been removed from their families to protect them after allegations that they were being abused or neglected. But many foster children also have been caught acting in sexually inappropriate ways, including many who hadn't initially disclosed that they were victims of molestation. That's why officials say there will continue to be more group homes dedicated to treating them. State officials don't categorize group homes by treatment type, so it is unclear how many of the state's group homes provide sex - offender therapy. In Sacramento County, however, probation officials estimate that 15 percent to 20 percent of the group homes do treat sex offenders. Nonetheless, the demand for care far outpaces the number of available beds. In Fredericks' program, for example, 20 youths were accepted last year into six group homes for a program that lasts about two years. An additional 48 youths were approved for admission and put on a waiting list but were never admitted. Sixty -three more were refused because their crimes were too violent or they had too many mental health problems to do well in such care. Schroeder, of the Alliance of Child and Family Services, said Californians can't afford not to treat them. "If we just lock them away, you might not have to worry about them for a year or two," he said. "But terrible things are going to happen to that kid when you lock him away. And then you've got a real problem - for a long time." The Sacramento Bee November 11, 2002 California Research Bureau, California State Library 29 x,15 PLANNED HOME FOR DISABLED DRAWS OPPOSITION By JENNIFER VIGIL, Staff Writer The families want a specially equipped home for their disabled loved ones. The residents of Fourth Street in National City want the building to fit into their neighborhood of small ranch homes. Both sides have clashed in recent weeks as the Cheneweth Foundation, owner of the site proposed for the group home, has wended its way through the city's application process. The city's Planning Commission, despite reservations, approved the project this week, a decision that is final unless opponents appeal the matter to the City Council. The council, however, will discuss on Tuesday whether a public hearing is warranted to review the decision. The foundation, which aims to help the disabled become better integrated into the community, hopes to build a 3,800- square -foot facility that will be home to six people, with a small staff to aid them. To achieve that goal, the foundation purchased two lots on Fourth, demolished the existing homes and prepared plans for one large structure equipped with hundreds of thousand of dollars worth of upgrades. Those are needed to allow disabled people to use the home. Alarmed residents, however, question why a large facility should be allowed to locate near single - family homes and say city zoning laws should preclude such an operation in a residential area. "We're never against anybody living in the neighborhood as long as they obey National City's laws," said Ronald Bib, who lives across the street from the proposed development. State law, however, allows for such facilities in areas zoned as residential, provided that six people or fewer live in them, and requires that cities and counties comply. Proponents argue that the home must be large, with outsized doorways and other amenities, so wheelchair users can get around with ease. "We don't want you to give these people special privileges," Pam Brunson, the foundations' program director, told planning commissioners. "We just want you to accommodate their needs." The residents and planning commissioners also have had to endure accusations of Intolerance, which they vigorously deny. "What I'm hearing is some people have the right to live as they want, but they don't seem to feel people with developmental disabilities have the same rights," said Elaine Barrack of La Mesa, who wants her daughter to move into the home. They are not biased against the disabled, residents and city officials insist, but are fearful that a large home resembling a medical facility will tower over the middle -class neighborhood and alter its character. The area, about a block from Paradise Valley Hospital and several medical -office buildings, is surrounded by single -story homes, some on raised foundations with manicured lawns, others on dirt lots.... "We did not deny this because they will be taking care of disabled people," said Frank Parra, the commission's chairman, in reference to the group's previous votes against the project. "It's strictly because of the fact that it looks like an institution." 30 California Research Bureau, California State Library 0 The planning commission's objections led the Cheneweth Foundation to slightly shrink its plans and turn the building around, to reduce the number of entrances facing Fourth. Planners also dropped the roof height to 17 feet, and commissioners asked them to look at moving more doors and installing more landscaping. Residents had asked that they build two new homes, rather than one large facility, a suggestion that the home's supporters say would be impractical and prohibitively expensive. Foundation officials say they cannot afford to stock two structures with the specialized equipment the home's residents would require and that they already spent $40,000 to redesign their plans to satisfy the commission. The equipment includes deep tubs for the bathrooms, computers and a ceiling -rail system that would allow those with some mobility to guide themselves from room to room without wheelchairs. The rails cost $10.000 a room, Brunson said.... The home will be built six months after city permits are issued, Brunson said. The foundation is planning three more homes but hasn't determined where they will be located. The San Diego Union- Tribune October 12, 2002 California Research Bureau, California State Library 31 all SUPES CONTINUE GROUP HOME PUBLIC HEARING By MARTI TAYLOR -DN Staff Writer Agencies will have to discuss concerns with residents. "I don't want it in my communityl" Those were the sentiments echoed at a public hearing held by the Tehama County Board of Supervisors by a handful of residents near what could become two new group homes in Red Bluff. North Valley Children Family Services has proposed to locate two group homes on Dawn Drive in Red Bluff which are less than 300 -feet apart. NVCFS has contracted with the Tehama County Department of Social Services to establish and operate a 24 -hour facility that will address the needs of two unserved categories of youth ages 12 to 17. The State of California Department of Social Services provides the board of supervisors the opportunity to protest the licensing of group homes if the homes are located within 300 -feet of each other. Several residents of the Dawn Drive and White Road community spoke during the public testimony section of the hearing asking the board to consider protesting the licensing and approval of one of the group homes. "It is tough enough to raise my four daughters without a criminal element being introduced into our neighborhood," said resident Kevin Cruz. Fellow resident Danielia Sartori called the introduction of the homes a, "prescription for disaster." Randi Gottlieb Robinson spoke on behalf of social services along with Rich North of NVCFS, to clarify misconceptions regarding the homes. Gottlieb Robinson told the audience the reason the location was identified was because of the ability to have homes close enough together to run one facility but to separate the genders. Gottlieb Robinson also dispelled rumors that the homes would be for delinquent or criminal youth. "This is not a population of children who have ever broken the law. It is a teenage crisis and runaway center. It will serve a pre - delinquent population," said Gottlieb Robinson. The program would service those who are not in foster care but are temporarily out of their homes and are at risk of entering the system and those who are entering the foster system and placed into emergency care by Child Protective Services. The program would serve youth for a period up to but not exceeding 30 days. The proposed homes will each have a six -bed capacity and be located across the street from one another. One home would service girls and the other would service boys. As well both homes would have around the clock "awake" supervision consisting of a minimum of two staff members for each house. The board voted unanimously to continue the matter 60 days in an effort to give NVCFS and social services adequate time to go out into the community and dispel rumors as well as inform the community of the accurate facts regarding the homes. The board will return to the matter at their meeting on Oct. S. Red Bluff Daily News August 21, 2002 32 California Research Bureau, California State Library alp Appendix B — State Laws and Regulations on Residential Facilities California Research Bureau, California State Library 33 0 y. Facility Type Licensing Statute Code of CA Entity Regulations Group Home DSS Health and Safety Title 22 (H &S) Code 84000 -84808 Section 1500 Adult Residential Facility DSS H &S Code Title 22 Section 1500 85000- 85091.4 Social Rehabilitation DSS H &S Code Title 22 Facility Section 1500 81000 -81088 Residential Care Facility/ DSS H &S Code Title 22 Elderly Section 1569 87100 - 87731.4 Residential Care Facility/ DSS H &S Code Title 22 Chronically 111 Section 1568.01 87800 -87924 Alcoholism & Drug Abuse DAPD H &S Code Title 9 Recovery/Treatment Section 11834.01 10500 -10631 Facility Congregate Care Facility DHS H &S Code Title 17 Section 1267.8 56100 -56610 Intermediate Care Facility/ DHS H &S Code Title 17 DD Section 1267.8 56100 -56610 Intermediate Care Facility/ DHS H &S Code Title 17 DD- Habilitative Section 1267.8 56100 -56610 Intermediate Care Facility/ DHS H &S Code Title 17 DD- Nursing Section 1267.8 56100 -56610 California Research Bureau, California State Library 33 0 34 California Research Bureau, California State Library 0 Appendix C — State Laws Related to %ti f Residential Care Facilities ng o Health and Safety (H &S) Code Zoning liealffi facilities Licensed residential health facilities with six or fewer Section 1267.8 persons and congregate care facilities are considered residential use of property; residents and operators are considered a family for zoning purposes. H &S Code Section 1267.9 Overconcentration — Health State policy to prevent overconcentration of health facilities facilities. New facilities must be 300 feet or more from existing residential health or community care facilities (except for Residential Care Facilities for the Elderly); congregate living facilities must be 1000 feet or more from other existing facilities. Local government must approve requests for distances. shorter H &S Code Section 1250.5 Overconcentration- Community Care Facilities State policy to prevent overconcentration of (Group Homes, Adult Residential residential care facilities. New facilities must be 300 feet or more from existing Facilities, Social Rehabilitation Facilities) community care facilities (except for Residential Care Facilities for the Elderly). Local government must approve requests for shorter distances. H &S Code Section 1566.3 Zoning— Communi Care �' Facilities (Group Homes, Licensed residential community care facilities with Adult Residential Facilities, six or fewer persons are considered residential use of Social Rehabilitation Facilities) property; residents and operators are considered a famil Y for zoning u g p rposes. H &S Code Section 1569.85 Zoning— Residential Care Facilities for the Elderl Y Licensed residential care facilities for the elderl y with six or fewer persons are considered residential use of property; residents and operators are considered a family for zoning H &S Code Legislative Intent purposes. Section 11834 Local Regulation/ Zoning — State policy that each courtly and city allow, and encourage enough recovery Alcoholism or Drug Abuse or treatment facilities to meet local needs. Licensed facilities that serve Recovery or Treatment six or fewer persons are not subject to any local taxes, Facilities permits or fees not applicable to single - family homes; facilities are considered residential use of property; residents and operators are considered a family for Zoning purposes. California Research Bureau, Calif0mia State Library 35 -'Nl Welfare and Legislative Intent State policy that persons with disabilities are entitled Institutions (W &1) Zoning — Persons with to live in normal residential surroundings. Care of six Code disabilities or fewer persons with disabilities is residential use of Section 5115 property mfor zonin g purposes. W &i Code Zoning — Facilities for Licensed family care or group home for six or fewer Section 5116 children children with disabilities or dependent and neglected children is considered residential use of property for zoning purposes. 36 California Research Bureau, California State Library M Appendix D — Recent Legislation Related to Siting of Residential Care Facilities (1997 -2002) California Research Bureau, California State Library, 37 aa3 AB 323 Created pilot in San Bernardino County to encourage (Baca) group homes to work with neighborhood residents to 71997Died resolve issues and reduce complaints. CDSS expanded pilot to Shasta County. (SCR 27 recommendation) AB 63l Required that person released on probation participate in a (Morrow) licensed facility if required to go through alcohol and drug abuse rehabilitation program. (SCR 27 recommendation) 1997 Died in AB 756 Extended the overconcentration requirement to 1000 feet. Committee (Kuykendall) 1997 Died in AB 1288 Required prior local government approval for group Committee (Wood) homes housing residents convicted of a serious or violent felony or a residential burglary. 1997 Died in SB 139 Extended the 300 -foot overconcentration requirement to Committee (Kopp) alcohol and drug facilities. 1997 Chapter 96 SCR 27 Established SCR 27 task force comprised of local (Kopp) government and social service representatives to address community concerns resulting from an increase of residential care and treatment facilities and make recommendations. 1998 Chapter 898 AB 1068 Required criminal background check for previously (Campbell) exempt social rehabilitation facilities; extended background check for intermediate care facilities /developmentally disabled to direct care staff and others. 1998 Chapter 311 SB 933 Provided a comprehensive series of group home reforms (Thompson, including several changes to improve management and GH Reform staff training, and accountability and oversight Bill) requirements. Examples: required that group homes first be issued a temporary provisional license that can be suspended if the facility is not in compliance; clarified that group home have specific community representatives (like neighbors) on existing boards of directors or advisory board; required a "Good Neighbor" handbook; and expedited the fingerprint process. (SCR 27 recommendations included) California Research Bureau, California State Library, 37 aa3 1998 Vetoed/ SB 1540 Required a plan for establishing and maintaining a Fiscal issues (Kamette) statewide computerized data base for all community care facilities and alcoholism and drug abuse treatment and recovery facilities; and a plan for identifying and regulating existing unlicensed residential programs. (SCR 27 recommendation) 1998 Died in SB 1971 Required that an assessment be developed of the committee (Watson) residential needs of persons who live in licensed residential facilities and persons who live in other living arrangements in which services are provided. Required that a statewide database be established and maintained. (SCR 27 recommendation) 1999 Gutted/ AB 373 [Previous language extended separation requirement from Converted (Pacheco) 300 to 1,000 feet.] 1999 Never heard AB 533 Clarified that facility operator cannot claim "six or fewer" in committee (Nakano) status if operating two or more facilities located within 1,000 feet of each other. 1999 Died in AB 997 Prohibited additional licenses to providers who have not Assembly (Campbell) operated their facilities well in existing communities; added language that strengthens role of group home community advisory body. 1999 Died in AB 1025 Added language that strengthens role of group home Assembly (Havice) community advisory body. (SCR 27 recommendation) 1999 Died in SB 268 Required that residential facilities for the elderly be committee (Rainey) counted for purposes of the 300 -foot separation requirement. 1999 Vetoed/ SB 887 Strengthened laws associated with group home operator Fiscal issues) (Ortiz) fraud. 1999 Vetoed/ SB 986 Required sober living facilities that offer services and Fiscal issues (Kamette) programs to be state licensed. (SCR 27 recommendation) 1999 Died in SB 987 Required the Department of Alcohol and Drug Programs committee (Kamette, to administer licensing and regulation of alcohol and drug Follow -up to facilities. [Previous amendments that required group SB 1540) home siting locations to be posted on DSS website, authorized local needs assessment and siting plans to be developed as part of general plan, and required "Good Neighbor" handbooks to be distributed to neighbors were deleted from the bill.] (SCR 27 recommendation) 38 California Research Bureau, California State Library a,14 2001 Chapter 188 Required that training and testing requirements apply to direct care staff persons employed in a licensed community care facility for persons with developmental disabilities that receives regional center funding. (SCR 27 recommendation) 2002 Vetoed/Fiscal HA Required Governor's Office of Planning and Research to & workload develop and adopt guidelines for addressing human issues services matters (including assessment of residents in care facilities) within the local government's general plan to improve quality of life for targeted members and community. (SCR 27 recommendation) (SCR 27 recommendation) = requirement consistent with SCR 27 Task Force recommendation 1—n�w nutcau, t,antorma State Library 39 �a5 40 California Research Bureau, California State Library a au Bibliography and Selected Resources American Planning Association. Policy Guide on Community Residences. American Planning Association Newsletter. [ 1997] http:/ Avl ,p!g�.org/policyauides/commres.htm Andre, Claire and Manual Velasquez. "(`lot in My Backyard." Issues in Ethics 2, no. I (Winter 1989). Blacksher, Susan. "Un Drug Abuse Treatment Centers: Listen to Neighbors, Not Naysayers." The San Diego Union - Tribune. May 29, 2002. Boddy, Chet. Zoning. 2000. (Mr. Boddy is a Real Estate Appraiser in Medocino, California-) httu:// www .chetboddy.com/articies/zoning htm Brown, Mareva. "Group Homes: Big Needs, Big Fears." The Sacramento Bee. November 11, 2002. Metro Section, B1. California Association of Health Facilities (CAHF). "Services Under the Lanterman Act" Sacramento: CAHF. httpJ Avww.cahf /public/dwAanterman.nhp California. Department of Alcohol and Drug Programs. Alcohol- and Drug -Free Housing (Sober Living). Licensing & Certification of Alcoholism or Drug Abuse Recovery or Treatment Programs and Licensing of Alcoholism or Drug Abuse Recovery or Treatment Facilities: The Most Frequently Asked Questions. Sacramento: the Department, April 2001. Fact Sheets. California. Department of Alcohol and Drug Programs. Good Neighbor Guidelines: Establishing and Maintaining Positive Relationships in the Community. Guidebook for Residential Alcohol and Drug Abuse Facilities. Sacramento: the Department, revised February 2000. California. Department of Alcohol and Drug Programs. Substance Abuse and Crime Prevention Act of 2000, First Annual Report to the Legislature. Sacramento: the Department, November 2002. California. Department of Developmental Services. Olmstead Planning in California. Sacramento: the Department. httpJ/ www. dds. miz ov/ltoc/nWn/oimsteadplannina.cfin California. Department of Social Services, Community Care Licensing Division. "Comprehensive Evaluation Tool for Group Home Evaluations." Evaluator Manual. Sacramento: the Department, January 2000. California. Department of Social Services. Community Care Licensing Division. Facts You Need to Know: Group Home Board of Directors. Sacramento: the Department, 1999. California, Department of Social Services. Community Care Licensing Division. Technical Support Program. Group Home Providers: Establishing and Maintaining Positive Relationships in the Community. Sacramento: the Department, December 2001. Self-Assessment Guide. California Research Bureau, California State Library 41 a ok,� California. Governor's Office of Planning and Research. Edited by Nancy Patton. 1997 Planning, Zoning, and Development Laws. Sacramento: the Office, June 1997. httD : / /ceres.ca.gov/planning/pzd/ 1997fi ntro. html. Califomia. Govemor's Office of Planning and Research. "Zoning of Homes or Facilities for Mentally Disordered, Handicapped Persons, or Dependent and Neglected Children (Excerpts from the Welfare and Institutions Code)." 2002 Planning, Zoning, and Development Laws. Sacramento: the Office, 2000. California. Serrate Health and Human Services Committee. Senate Concurrent Resolution 27: Residential Care and Treatment Facilities Report to the Legislature and the Governor. Prepared for the Care Facilities Task Force. Sacramento: Senate Publications, 1998. Foster, Lisa K. Foster Care Fundamentals: An Overview of California's Foster Care System. Sacramento: California Research Bureau, California State Library, December 2000. Ganthe, Ted H. Group Homes: Local Control and Regulation Versus Federal and State Fair Housing Laws. Prepared for the Washington State Bar Association Land Use Conference, May 1997). Washington: Municipal Research and Services Center, 1997. http : /hvww.mrsc.orPAegaUeantheAmn Institute for Public Strategies. Prop. 36: The Substance Abuse and Crime Prevention Act of 2000. National City: the Institute. May 2002. Fact Sheet Institute for Public Strategies. Treatment: Frequently Asked Questions. National City: the Institute. May 2002. Fact Sheet League of California Cities. Summary of Existing Policy and Guiding Principles. Sacramento: the League. March 2002. League of California Cities. "Results of League Survey of Cities on Group Home Issues." Letter from Dan Carrigg, Legislative Representative, to Members, Assembly Human Services Committee, Assembly Local Government Committee, Senate Health and Human Services Committee, Senate Local Government Committee, and Legislative Secretary, Governor's Office. February 8, 2000. Mecoy, Laura. "A Troubled Cure" A Sacramento Bee Special Report: Two -Part Series on Proposition 36. Sacramento Bee, Los Angeles Bureau. July 1- 2, 2001. Mina, Michael. Group Homes and Zoning Under the Fair Housing Act. Building Better Communities Network, April 1998. httoJ/ 216. 118. 74 .208/index.cfm?metharerouphomes. Rowe, Peter. "Treatment Centers are Great, But Put This One Elsewhere." San Diego Union - Tribune. April 25, 2002. Lifestyle Section, E-1. Taylor, Marti. "Super Continue Group Home Public Hearing." Red Bluff Daily News. August 21, 2002. 42 California Research Bureau, Califomia State Library U.S. Department of Health and Human Services. National Institute on Drug Abuse. How to Succeed in Siting a Drug Abuse Treatment Center. Washington D.C.: the Department, 1992. U.S. Department of Justice. Civil Rights Division. Housing and Civil Enforcement Section. The Fair Housing Act. Washington D.C.: the Department. httpJ/www.usdoi. goy /cit/housing/housingtcoverage htm U.S. Department of Justice. Civil Rights Division. U.S. Equal Employment Opportunity Commission. Americans with Disabilities Act Questions and Answers. Washington D.C.: the Department, August 1999. U.S. Department of Justice. Civil Rights Division. A Guide to Disability Rights Laws. Washington D.C.: the Department, August 1999. U.S. Department of Justice and U.S. Department of Housing and Urban Development. Group Homes, Local Land Use, and the Fair Housing Act. A Joint Statement. Washington D.C.: the Departments, August 2001. Vigil, Jennifer. "Planned Home for Disabled Draws Opposition; Size is Questioned in National City." The San Diego Union - Tribune. October 12, 2002. B4 and B6. Whitman, Cameron and Susan Parnas. Fair Housing: The Siting of Group Homes for the Disabled and Children. Local Officials Guide. Washington D.C.: The National League of Cities, 1999. USEFUL WEBSITES California Law: http J/www.leeinfo.ca.eov /calaw.html California Code of Regulations: bft://W-,N-vv.calregs.com/ California Department of Alcohol and Drug Programs, Licensing and Certification Branch: information about licensing Alcohol and Drug Treatment or Recovery Facilities, hupJ/ www. ady .eahwnet.aov/LCB/LCBhome.shtml California Department of Health Services, Licensing and Certification: information about licensing community health facilities, http:// www. dhs.cahwnet.aov/Inc/default.htm California Department of Social Services, Community Care Licensing Division: information about licensing community care Facilities, httpJAvww.ccld.c&gov /default.htm Drug Policy Alliance. Califomia Proposition 36 — The Substance Abuse and Crime Prevention Act of 2000: information about SACPA implementation activities, httpJ/www.yrop36.oW League of California Cities: information about local perspective and policies on residential care facilities, ht1n:// www .cacities.orWdoc.ast)?intParentlI) =1018 California Research Bureau, California State Library aa�` 44 California Research Bureau, California State Library a 3� Notes t California Senate Health and Human Services Committee, Senate Concurrent Resolution 27: Residential Care and Treatment Facilities Report to the Legislature and the Governor (Sacramento: Senate Publications, 1998); and Cameron Whitman and Susan Pamas, Fair Housing: The Siting of Group Homes for the Disabled and Children, Local Officials Guide (Washington D.C.: U.S. Department of Health and Human Services, 1999) i. 2 Peter Rowe, "Treatment Centers are Great, But Put This One Elsewhere," San Diego Union- Tribune, Lifestyle Section, &1, April 25, 2002. 3 California Senate Health and Human Services Committee, Senate Concurrent Resolution 27, p 4; and American Planning Association, Policy Guide on Community Residences, American Planning Association Newsletter [1997] 6, at htWAvl.i)lanning.grglpoficyguides/comm.tes.htm 4 League of California Cities. "Results of League Survey of Cities on Group Home Issues." Letter from Dan Carrigg, Legislative Representative, to Members, Assembly Human Services Committee, Assembly Local Goverment Committee, Senate Health and Human Services Committee, Senate Local Government Committee, and Legislative Secretary, Governor's Office. February 8, 2000. 5 The Lanterman Developmental Disabilities Services Act, Welfare and Institutions Code Division 4.5, starting with Section 4500. 6 California Senate Health and Human Services Committee, Senate Concurrent Resolution 27 Report (Sacramento: Senate Publications, 1998). 7 Lisa Foster, Foster Care Fundamentals: An Overview of California's Foster Care System, (Sacramento: California Research Bureau, California State Library, December 2000) 23 -24. Foster care is the 24 -hour out -of -home care provided to children in need of substitute patenting because their own families are unable or unwilling to care for them. This report describes the role of group homes for children. 8 California Department of Social Services website at http:/ Avww/ dsskkwnet.goy /r,dssweb/Residentia 180.htm 9 California Department of Alcohol and Drug Programs website at http:// www. adp .cahwnet.yov/LCB/L)CBhome.shtml 10 California Department of Developmental Services website at http:// www. dds. ca. gov .livingarran,/main/icf00I.cfin; and California Care Network website at http/Avww.calearenet.ca.gov /continuous med care facs.asp " Michael Mirra, Group Homes and Zoning Under the Fair Housing Act. Building Better Communities Network, April 1998, at http: //216.118. 74208 /index.cfin ?method= grouphomes California Research Bureau, California State Library 45 a31 12 U.S. Department of Justice and U.S. Department of Housing and Urban Development. Group Homes, Local Land Use, and the Fair Housing Act. A Joint Statement. (Washington D.C.: the Departments, August 2001). 13 42 U.S.D. 3504(0(3)(B); and Cameron Whitman and Susan Pamas, Fair Housing Local Officials Guide, 8 -9. 14 U.S. Department of Justice, A Guide to Disability Rights Laws (Washington D.C.: the Department, August 1999) 1 -3. 15 California Department of Developmental Services, Olmstead Planning in California (Sacramento: the Department). httn : //www.dds.ca.eovAtce/maWokn teadplanning.cftn 16 California Fair Employment and Housing Act (Government Code Sections 12900- 12996); Unruh Civil Rights Act (Civil Code Section 51); Lanterman Developmental Disabilities Services Act (Welfare and Institutions Code Sections 4500 - 4903); Lanterman - Petris -Short Act (Welfare and Institutions Code Sections 5000 - 5550); and Civil Code Section 54.1. 17 Welfare and Institutions Code Sections 5115-5116; Health and Safety Code starling with Section 1400. 18 California Department of Social Services, Community Care Licensing, Evaluator Manual, Comprehensive Evaluation Tool for Group Home Evaluations (California: the Department, January 2000) and Licensing Regulations, Title 22; California Department of Alcohol and Drug Programs Licensing Regulations, Title 9; and California Department of Health Services Licensing Regulations, Title 17. See page 36 for specific sections. 19 Code of Federal Regulations, Title 42, Chapter I Part 2 require confidentiality for residents of Alcohol and Drug Abuse Recovery and Treatment Facilities; Health and Safety Code Sections 1557.5 requires that Group Home, Adult Residential Care, and Social Rehabilitation Facilities `protect the privacy and confidentiality" of information about residents; Health and Safety Code Section 87870(c) provides confidentiality for residents of Residential Care Facilities for the Chronically 111; and Health and Safety Code Section 87570(c) provides confidentiality for residents of Residential Care Facilities for the Elderly. 20 California Department of Social Services, Group Home Providers: Establishing and Maintaining Positive Relationships in the Community, Self - Assessment Guide (Sacramento: the Department, December 2001) 6. 21 Health and Safety Code Section 1524.5. 22 Chet Boddy, Zoning, 2000 at http:// www. chetboddy .com/articles/zoninghtm Mr. Boddy is a Real Estate Appraiser in Mendocino, California. 23 Cameron Whitman and Susan Pamas, Fair Housing Local Officials Guide, 12. 24 Cameron Whitman and Susan Pamas, Fair Housing Local Officials Guide, 19 -20; and U.S. Department of Justice and U.S. Department of Housing and Urban Development, Group Homes, Local Land Use, and the Fair Housing Act. 46 California Research Bureau, California State Library 25 League of California Cities, Summary of Existing Policy and Guiding Principles, March 2002, at htta:// www. cacities .ore/doc.asp ?intParent1I=1019 26 American Planning Association, Policy Guide on Community Residences, American Planning Association Newsletter [ 1997] 6, at http:/Avl.planning.org/policyguides/comm.res.htm; and Cameron Whitman and Susan Pamas, Fair Housing Local Officials Guide, p 16. 27 California Senate Health and Human Services Committee, Senate Concurrent Resolution 27 Report, 4, 14. 26 California Senate Health and Human Services Committee, Senate Concurrent Resolution 27 Report. 29 California Department of Social Services, letter from Martha Lopez, Deputy Director, Community Care Division, to Regional Managers and Residential District Office Managers, on "Commitment to Work with Local Government on Group Home Issues," September 29, 1999. 30 Institute for Public Strategies Fact Sheet, Prop 36: The Substance Abuse and Crime Prevention Act of 2000 (National City, the Institute, March 2000). 31 California Department of Alcohol and Drug Programs, Substance Abuse and Crime Prevention Act of 2000 First Annual Report to the Legislature, November 2002, (Sacramento, the Department, November 2002), Executive Summary. Certified outpatient programs increased by 81 % in response to SACPA. 32 Conversation with Aly Zimmermann, Policy Analyst, League of California Cities, November 12, 2002; conversation with Eileen Sommers, Licensing Evaluator, California Department of Alcohol and Drug Abuse, Licensing and Certification Division, November 12, 2002; California Department of Alcohol and Drug Programs, SA CPA 2000 First Annual Report to the Legislature, Executive Summary; and Susan Blacksher, "On Drug Abuse Treatment Centers: Listen to Neighbors, not Naysayers." The San Diego Union - Tribune, May 29, 2002, Opinion Section, B-9; and Neighbors Unite, "Neighbors' Concerns Regarding the Increase of "Clients" in Residential Recovery Homes," at httvYAvww. neiehbormfflte.ore/nosition.htm (accessed August 1, 2002). California Research Bureau, California State Library 47 9 33 a3`k ATTACHMENT K a35 THIS PAGE INTENTIONALLY LEFT BLANK �3� 06/18/2007 11:51 9496736827 LIDO ISLE COMMUNITY PAGE 02/04 lido isle community association 701 vA U00 SOU. LIM OLE • NEWPORT SEACt{. CA 92563 June 18, 2007 City of Newport Beach Attn: Mayor Steve Rosansky 3300 Newport Boulevard Newport Beach, CA 42663 Re: Revisions to City Ordinances Concerning Group Homes" Dear Mayor Rosansky and Council Members: We are writing this letter to voice our opinion concerning the overconcentration of group homes in Newport Beach, specifically in the residential neighborhoods of Balboa peninsula, Lido Isle, West Newport, and Newport Heights. The citizens of this City, in particular those who reside in, work in, or have family activities in these districts, have been and are being adversely impacted by the overconcentration of this use in our stable, residential neighborhoods and the frequently visited mixed use area of Cannery Village. Concerns and complaints concerning impacts from group homes in our neighborhoods have been expressed to the City for a number of yam. The impacts have become more significant and pervasive in our neighborhoods due to the exponential increase in the number of group homes located here during 2004 -2007, subsequent to the 2004 municipal code changes made by the City concerning group homes, notably abandonment of conditional use designation and allowing facilities in R1.5 and R2 zoned areas which pervade our coastal neighborhoods. Adverse impacts include inmwoed density and related problems, imposition of nuisances and health and safety hazards on the residents, and increased transience and crime We now have over 100 known group homes in this dense, residential coastal neighborhood in a stretch of approximately 1,s miles. We. support the following position expressed by the Concerned Citizens of Newport Beach regarding municipal ordinances and cnforocment procedures concerning group homes, and request that the City consider adopting these measures: a nonprofit coeperaWe organization of an lido isle property owners �.3� 06/19/2007 11:51 9496736827 LIDO ISLE COMMJNITY PAGE 03/04 1. In order to assure that group home uses are properly operated and located in areas of compatible use, all group homes should be required to register with the City. Registration sbould include ownership; description of use; number of occupants including *euts/enstomets and staff; contact person; and exhibit of required operating license or certification. Only licensed and certified residential in and outpatient care and treatment group home facilities should be considered to locate in any neighborhood of the City. 2. To both mitigate for density - related impacts and avoid institutionalization of our neighborhoods, require dispersement of at least 1,000 feet between each licensed and unlicensed facility, place or building regardless of ownership or management. This is particularly important in the residential neighborhoods with dense, multizoned characteristics including Balboa Peninsula, Lido isle, West Newport, Newport Sleights and Corona del Mar. 3. No new group home facilities or places in already over concentrated noigbborhoods: Balboa Peninsula, West Newport, Lido Isle, and Newport Heights. 4. Integral facilities, defined as place, premises or buildings in residential and surrounding commercial area under common or affiliated ownership or management, providing supervision, treatment, counseling and education, meals, housing, transportation or other services, and located within residential or commercial districts, licensed and unlicensed, of hybrid or complete group home use, shall be considered as one for P%posas of use determination and review, regardless of size. 5. No group homes of any kind within 1,000 feet of any school, day care facility, public park or senior,citizens facility. 6. No probationer, parolee or other group homes housing two (2) or more probationer/parolees or ethers in alternative sentencing programs. 7. All group homes to be subject to Use Review and Permitting, including public review. The Use Renew Guidelines should be included in the ordinance and address: physical development; site and operating characteristics; their compatibility with existing neighborhood and the General Plan; and environmental, health and safety impacts. 8. Reasonable accommodation should be addressed as part of the Use Review process. Reasonable accommodation sboald not impose density or health and safety impacts adverse to the community or surrounding neighborhood Density should not exceed that of already established Use at such place or lot. 9. Notice should be provided by the City to all owncWOccupants within 306 feet of an existing or proposed new facility. 10. All group homes, including existing and newly proposed, should be required to undergo Use Review and Aezmitting. No automatic grandfathering. Upon passage of ordinance, group hone businesses should be required to file with the City within 60 days and undergo Use Review within 186 days from Ordinance passage. 11. Amortization should not exceed 180 days. 12. Strict enforcement: Noncompliance with required Use, building or other City codes by any facility should result in citation. Failure to comply with requirements after notice should result in fines and closure. 2 a38 06/18/2807- -11:51 9496736827 LIDO ISLE COR"ITY PAGE 04/04 13. Notice to all owners and occupants whin 300 feet of an existing or newly proposed facility. We appreciate the City's consideration of this urgem matter. Sincemiy, Neil M arlane, President Lido Isle Community Association 3 0 �i 07/24/2007 TUB 12,55 PAX 8187800501 VN- OFFICE -PAX P.O. BOX 826, BALBOA, CALIFORNIA 82661 Steven Rosansky 12 July 2007 Mayor City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Subject: Revised Ordinances to Regulate Group Home Uses Dear Mayor Rosansky: Balboa Peninsula Point Association (BPPA) strongly supports strengthening Code amendments addressing Group Home uses in Newport Beach. In the residential neighborhoods of West Newport, Balboa Peninsula, Lido Isle and Newport Heights, there is an over - concentration of Group Homes. out citizens have been adversely impacted by this over - concentration for several years . It is changing our residential neighborhoods and the frequently visited mixed use area of Cannery Village. The over - concentration has increased considerably since 2004, when the City, pursuant to advice from the City Attorney, terminated requirements for conditional use permits, and allowed these uses in R1.5 and R2 zones. We believe that there are now over 100 Group Homes in these residential neighborhoods in an area approximately 1.5 miles long. We support other Community Associations and resident groups in requesting that the following provisions be included in the City's new ordinances addressing licensed and unlicensed facilities of all sizes. I. REGISTRATION: City should require registration for all Group Homes. Allow licensed or certified facilities only 2. 1000 FEET SEPARATION: Require at least 1000 feet between each licensed and unlicensed facility, regardless of size or ownership 3. OVERCONCENTRATED AREAS: Allow no new Group Home facilities or expansions in already over - concentrated districts. Require Priority Use Review for facilities in these areas 4. INTEGRAL FACILITIES: Facilities with common or affiliated ownership or management should be considered as one for Use Review and permitting ®0021003 aq° 07/24/2007 TUE 12:55 PAX 0137000501 VN- OFFICE -FAR 1A003/0U3 5. SPECIAL PROTECTION: Permit no Group Homes within 1000 ft. of any school, day care center, public park or senior citizens facility 6. NO ALTERNATIVE SENTENCING FACILITIES: No probationer or parolee should be housed in alternative sentencing facilities CONDITIONAL USE PERMIT (CUP): All Group Homes should be subject to Conditional I Ise Redrew, Permitting and public review. Establish standards to assure compatibility of use, physical and health safety and to minimize negative impacts of congestion. Reasonable accommodation part of the CUP should not impose burdens on the community or impose density beyond that allowable for other uses. No Grandfathering. 8. NOTICE: Notice should be provided by the City to owners and occupants within 300 ft of existing or proposed new facilities. 9. AMORTIZATION: Existing facilities should be given 30 days to register with the City. Non - conforming Uses should be amortized over a period NTE 6 months. 10. HYBRID USES CONSIDERED GROUP HOMES: Other short -term lodging and Boarding houses to be treated as Group Homes for purposes of use designation 11. LIMIT SHORT TERM LODGING (STL) PERMITS: No more STL Permits should be issued in dense, stable residential areas: Central Peninsula, Lido Isle, Peninsula Point 12. RIGOROUS, CONSISTENT ENFORCEMENT: Noncompliance should result in citation and subsequent shutdown. We understand that other cities have been successful in regulating Group Homes for the benefit of their residents. We appreciate the City's immediate attention to this important issue to preserve the character and integrity of our neighborhoods and the quality of life of your constituents. Sincerely, Sam Aiell President Balboa Pe insula Point Association cc: via email to City Council Members and Planning Commissioners aat Page] of 3 Alford, Patrick From: robert rush [rrush @usrealtygroup.com] Sent: Thursday, August 16, 2007 7:33 PM To: eaton727 @earthlink.net; Alford, Patrick Cc: Lepo, David; Harp, Aaron; ' robert rush'; strataland @earthlink.net; scott.peotter @taxfighter.com; emcdaniel @fullertoncb.com; bhillgren @cox.net; rhawkins @earthlink.net; eaton727 @earthlink.net; jeff.cole @cushwake.com;'Donald L. Webb'; Selich, Edward; Curry, Keith; Daigle, Leslie; Rosansky, Steven; Henn, Michael; Gardner, Nancy Subject: RE: Residential Uses Code Amendment Attachments: 8- 23PCDraftStaffReportFINAL.pdf; AGrspOpinion07- 601adp.pdf Barry Good questions Barry ... however related to your Item # 8 below ...Why does the Draft contain a Kery sly_nuance of 1 house of a type per block" ( see above attachment "8-23 PCDrafStaffReportFINAL ", Page 11, Para 1 ).... This ordinance provision would result in sanctioning MORE group homes than Newport Beach already has.... Examine the issue just by using the Peninsula area between 10th & 60th streets.... roughly 50 streets and each having an average of 3 blocks — The Draft's 1 house of a type per block" would immediately result in 150 houses sanctioned into existence by the City ...so we'd have 150 Drug Rehabs occurring between 10th & 60th streets.... and for each new type of Group Home (ie; maybe an elderly care or eating disorder home, etc) there would be another 150 homes sanctioned between 10th & 60th streets..... Considering the 300 foot distancing of most other categories of Group Homes by the State this Draft's provision of 1 house of a type per block" could conceivably result in as many as 3 Group Homes per block ...possibly in the range of 400450 group homes in all ....fully sanctioned by the City's New Draft Ordinance. Ask yourself ... WHY ..... why would such a nuance be inserted to the Ordinance Dra ..? ....Surely with all the UNBIASED expertise that we've been paying for as a City ... THIS COULDN'T BE A BLATANT MISTAKE ....COULD IT .... OR IS IT INTENTIONAL.....? My conclusion is that in either case Intentional or Erroneous ...We have a BIG problem here that this could_get into the Draft at this stage of the writ[ng and it calls into question the competence of the author because this essentially moves us in the direction of worsening Overconcentration ....... Just as the 2004 -16 Ordinance Modification worsened the situation.. Very odd ...... and this same "1 house of a type per block" turned up in the AG Letter too .... hmmm. Bob Rush - - -- Original Message-- - From: Susan /Barry Eaton [mailto:eaton727_ @earthlink.net Sent: Wednesday, August 15, 2007 10:00 PM To: Alford, Patrick 08/17/2007 a �°� Paget of 3 Cc: Lepo, David; Harp, Aaron Subject: Residential Uses Code Amendment Patrick, I have now read this staff report, the attached amendment, and the other attachments forwarded to us thus far. It does appear to be significantly more substantial than the previous draft; and it appears that it will entail a great deal of effort on the part of both staff and the Commission, if adopted. Nonetheless, I do have some questions: 1) It appears that both existing and proposed small licensed facilities will be permitted to continue, and be newly established, by right, as dictated by State Law - unless they are deemed part of an Integral Facility. Does this mean that they will also not be utilized in the separation determinations as provided for in proposed Section 20.91A.030.A.2. of the proposed Amendments, if they are not part of an Integral Facility? If they are deemed part of an Integral Facility, will they then become part of the separation determinations? 2 Do the Occupancy restrictions of proposed Section 20.91A.030.B. conflict with the State Housing Code, and the Appellate Court decision rendered in the City of Santa Ana? 3) It appears that Vacation Rentals in the R -1 zone are non - conforming; and that they will, of necessity, become a part of the Abatement Procedures proposed in Section 20.62.090.B. of the proposed Amendments. What other possible or probable non conforming uses are out there in the residential zones, that would be subject to these provisions, and how many of them might there be? Were some of the churches in Residential zones developed prior to Use Permit requirements, for example? 4) In the proposed Section 20.62.030A. & B., the definition of nonconformity is being proposed to be amended to include only "lawfully established and maintained" uses. I would assume that there are many uses in the residential zones that were not ever lawfully established in accordance with the zoning regulations in effect at the time of their establishment, which could range all the way from individual bootleg units to the rather large Narconnan facility, which required a Use Permit at the time of its establishment, but apparently never applied for or received such a permit. If these uses are not nonconformities under the proposed regulations, how will they be dealt with under the proposed enforcement program? 5) Proposed Chapter 28 initiates a "Reasonable Accommodation" process, as had the previous draft, but the standards and findings (and perhaps the applicability) has changed. There are still 2 processes for Reasonable Accommodation - one for those applications that do not accompany another discretionary approval application, and another for those that do. What kind of use would the first category entail - licensed small facilities? Why would they need a Reasonable Accommodation, if they have a ADP license? And why would an applicant for another discretionary permit, such as a Use Permit for an unlicensed small facility, also desire a Reasonable Accommodation? 6) If unlicensed small facilities are directed to file an application for a Use Permit, could they just as easily apply for an ADP license, and thereby avoid any City requirements? Are there any City requirements for licensed small facilities, such as registration or emergency contacts, or are these provided for in the ADP licensing procedure, and made available to the City's emergency Departments? 7) The staff report notes (on page 8), that the larger Residential Care Facilities will be limited to the MFR zone (which is a good thing, in my opinion). That paragraph goes on to state that there are 188 acres in this zoning, plus an additional 828 acres designated Multiple Residential in the General Plan, but apparently not zoned MFR. Can you give any examples of what zones those General Plan designations do fall into, and where they are in the City? 8) Can you expand upon the thought process that led to the separation requirement of one per block, and none within 75 feet of each other? How were these criteria arrived at? Does the 75 feet relate to the development patterns in parts of the City? If not, why 75', rather than, say, 100 feet or 300 feet? There is already a code definition of a Block Face. Was this considered, as well? 9) The staff report (on page 13) notes that the 3 Specific Plan schedules are proposed to be "...revised to prohibit clubs and lodges, religious assembly, and medical office uses." Why were medical office uses included in this proposed prohibition? And, in the next paragraph, it is pointed out that RLUIPA protects religious uses; and that: "Therefore, no changes to the land use regulations for religious assembly are proposed." Is this not a direct conflict with the preceding paragraph? 10) Finally, one of the 3 things which I had requested that staff look at, at the end of our June 19th meeting, and 08/17/2007 a1�3 Page3 of 3 which was incorporated into the motion of continuance (see 2nd paragraph at the top of page 48 of the minutes of that meeting) was some summary of what other Cities have been successful in incorporating into their ordinances dealing with these issues. The staff report doesn't appear to address that at all; and the letter form Goldfarb and Lipman appears to relate a few examples from other Cities, but appears to go on to distinguish those as being different circumstances than Newport Beach. Was it not possible to find examples of successful strategies in other Cities that would be applicable to Newport Beach? Thank you very much for your consideration of these questions. I look forward to your response. Barry 08/17/2007 9,yq Message Alford, Patrick From: Sharon Boles [sharon.boles@roadrunner.mm) Sent: Thursday, August 16, 2007 10:35 PM To: 'robert rush'; eaton727 @earthlink.net; Alford, Patrick Pagel of Cc: Lepo, David; Harp, Aaron;'robert rush'; strataland@earthlink.net scotLpeotter&axnghter.com; emcdaniel@fullertoncb.com; bhillgren@cox.net rhawkins@earthlink.net; eaton727@earthlink.net; jeff.cole@cushwake.com;'Donald L. Webb'; Selich, Edward; Curry. Keith; Daigle, Leslie; Rosansky, Steven; Henn, Michael; Gardner, Nancy Subject: RE: Residential Uses Code Amendment Bob, Thank you for giving your time and talents to this vital issue. Our community owes you a great deal for your efforts!! Sharon - - -- Original Message--- - From: robert rush [mailto:rrush@usrealtygroup.com] Sent: Thursday, August 16, 2007 7:33 PM To: eaton7270earthlinknet; 'Alford, Patrick' Cc!'Lepo, David'; 'Harp, Aaron';'robert rush'; strafzland@earthlink.net; smtt,peotter@taxfighter.com; emcdaniel @fullertoncb.mm; bhillgren@mx.net; rhawkiris @earthlink. net; eaton727 @earthlink.net; jeff.mle @cushwake.com;'Donald L. Webb'; 'Edward D. Selich'; 'Keith D. Cum; 'Leslie J. Daigle'; 'Steven Jay Rosansky'; 'Michael F. Henri; 'Nancy Gardner' Subject: RE: Residential Uses Code Amendment Barry Good questions Barry...however related to your Item # 8 below ...Why does the Draft contain a very sly nuance of "1 house of a type per block' ( see above attachment "8 -23 PCDrafStaffReportFINAL ", Page 11, Para 1 ).... This ordinance provision would result in sanctioning MORE group homes than Newport Beach already has.... Examine the issue just by using the Peninsula area between 10th & 60th streets.... roughly 50 streets and each having an average of 3 blacks... The Draft's "1 house of a type per block" would immediately result in 150 houses sanctioned into existence by the City ...so we'd have 150 Drug Rehabs occurring between 10th & 60th streets.... and for each new type of Group Home (ie; maybe an elderly care or eating disorder home, etc) there would be another 150 homes sanctioned between 10th & 60th streets..... Considering the 300 foot distancing of most other categories of Group Homes by the State this Draft's provision of "I house of a type per black" could conceivably result in as many as 3 Group Homes per block ...possibly in the range of 400 -450 group homes in all ....fully sanctioned by the City's New Draft Ordinance. Ask yourself ... WHY ..... why would such.a nuance be inserted to the Ordinance Draft .? ....Surely with all the UNBIASED expertise that we've been paying for as a City ... THIS COULDN'T BE A BLATANT MISTAKE ....COULD IT .... OR IS IT INTENTIONAL....'? My conclusion is that in either case Intentional or Erroneous ...We have a BIG problem here ihaithis.could gat into the Draft.at this stage of the wr' in and it calls into question the competence of the author because this essentially moves us in the direction of worsening Overconcentration ....... Just as the 2004 -16 Ordinance Modification worsened the situation- Very odd...... and this same "1 house of a type per block" turned up in the AG Letter too .... hmmm. Bob Rush -- Original Message-- - From: Susan/Barry Eaton Imailto:eaton7270.earthlink nett Sent: Wednesday, August 15, 2007 10:00 PM To: Alford, Patrick Cc: Lepo, David; Harp, Aaron Subject: Residential Uses Code Amendment Patrick, I have now read this staff report, the attached amendment, and the other attachments forwarded to us thus far. It does appear to be significantly more substantial than the previous draft: and it appears that it will email a great deal of effort on the part of both staff and the Commission, R adopted. Nonetheless, I do have some questions: 1) It appears that both existing and proposed small licensed facilities will be permitted to continue, and be newly established, by right, as dictated by State Law -unless they are deemed part of an Integral Facility. Does this mean that they will also not be utilized in the separation determinations as provided for in proposed Section 20.91A.030.A.2. of the proposed Amendments, If they are not part of an Integral Facility? If they are deemed part of an Integral Facility, will they then become part of the separation determinations? 2 Do the Occupancy restrictions of proposed Section 20.91A030.B. conflict with the State Housing Code, and the Appellate Court decision rendered in the City of Santa Ana? 3) It appears that Vacation Rentals In tie R -1 zone are non - conforming; and that they will, of necessity, become a part of the Abatement Procedures proposed In Section 20.62.090.8. of the proposed Amendments. What other possible or probable non conforming uses are out there in the residential zones, that would be subject to these provisions, and how many of - f them might there be? Were some of the churches in Residential zones developed prior to Use Permlt requirements. for example? '1 4 A% Ill the nrnnn1 rl CPMinn 7n Ai nin0 R R the APfin[ Mn of ltltn,nf lY i1 ;C h.;nn !1((1nncpd tn hp 9TPIlAPA to innh,rlP hilly 'IPwf iev PNPNICM1M and oC Message Paget of 2 zoning regulations in effect at the time of their establishment, which could range all the way from individual bootleg units to the rather large Narconnan facility, which required a Use Permit at the time of its establishment, but apparently never applied for or received such a permit. If these uses are not nonconformities under the proposed regulations, how will they be dealt with under the proposed enforcement program? 5) Proposed Chapter 28 initiates a "Reasonable Accommodation" process, as had the previous draft, but the standards and findings (and perhaps the applicability) has changed. There are still 2 processes br Reasonable Accommodation - one for those applications that do not accompany another discretionary approval application, and another for those that do. What kind of use would the first category entail- licensed small facilities? Why would they need a Reasonable Accommodation, If they have a ADP license? And why would an applicant for another discretionary permit, such as a Use Permit for an unlicensed small facility, also desire a Reasonable Accommodation? 6) If unlicensed small facilities are directed to file an application for a Use Permit, could they just as easily apply for an ADP license, and thereby avoid any City requirements? Are there any City requirements for licensed small facilities, such as registration or emergency contacts, or are these provided for In the ADP licensing procedure, and made available to the City's emergency Departments? 7) The staff report notes (on page 8), that the larger Residential Care Facilities will be limited to the MFR zone (which Is a good thing, in my opinion). That paragraph goes on to slate that there are 188 acres in this zoning, plus an additional 828 acres designated Multiple Residential in the General Plan, but apparently not zoned MFR. Can you give any examples of what zones those General Plan designations do fail into, and where they are in the City? 8) Can you expand upon the thought process that led to the separation requirement of one per block, and none within 75 feet of each other? How were these criteria arrived at? Does the 75 feet relate to the development patterns in parts of the City? If not, why 76, rather than, say, 100 feet or 300 feel? There is already a code definition of a Block Face. Was this considered, as well? 9) The staff report (on page 13) notes that the 3 Specific Plan schedules are proposed to be "...revised to prohibit clubs and lodges, religious assembly, and medical office uses.' Why were medical office uses included in this proposed prohibition? And, in the next paragraph, it is panted out that RLUIPA protects religious uses; and that: 'Therefore, no changes to the land use regulations for religious assembly are proposed." Is this not a direct eon0ict with the preceding paragraph? 10) Finally, one of the 3 things which I had requested that staff look at, at the end of our June 19th meeting, and which was incorporated into the motion of continuance (see 2nd paragraph at the top of page 48 of the minutes of that meeting) was some summary of what other Cities have been successful in incorporating into their ordinances dealing with these issues. The staff report doesn't appear to address that at all; and the letter form Goldfarb and Lipman appears to relate a few examples from other Cities. but appears to go on to distinguish those as being different circumstances than Newport Beach. Was it not possible to find examples of successful strategies in other Cities that would be applicable to Newport Beach? Thank you very much for your consideration of these questions. I look forward to your response. Barry 08/17/2007 a Alford, Patrick From: Craig Batley [Craig @burrwhite.com] Sent: Friday, August 17, 2007 12:49 AM To: robert rush; eaton727 @earthlink.net; Alford, Patrick Cc: Lepo, David; Harp, Aaron; robert rush; strataland @earthlink.net; scott.peotter @taxfighter.com; emcdaniel @fullertoncb.com; bhillgren@cox.net; rhawkins @earthlink.net; eaton727 @earthlink.net jeff.cole @cushwake.com; Donald L. Webb; Selich, Edward; Curry, Keith; Daigle, Leslie; Rosansky, Steven; Henn, Michael; Gardner, Nancy Subject: RE: Residential Uses Code Amendment Hi All, As a member of IROC I have been a part of this very public outcry for city regulation of Group ReHab Homes. The first draft presented to the Planning Commission on June 19th resulted in a strong recommendation to staff to be more imaginative in managing the proliferation of Group ReHab Homes. Now some 2 months later we have a second proposed draft made public a few days ago. At this time maybe 2 dozen citizens have read this document. Maybe another 2 dozen will carefully read these proposed changes by the hearing date of August 23rd. This issue is too important to limit public debate to only two planning commission sessions. Quite frankly, my opinion is it will take a third draft to make the modifications to mollify all the stakeholders. For instance, Barry observes (item # 3 of 10) vacation rentals will ... "of necessity, become a part of the Abatement Procedures...." WHY? The stakeholders of the current 88 single family STL permits many of whom have been renting their homes as STL for decades will not appreciate being "treated as necessary causalities" in the legal non conforming zoning modification. Burr White Realty has 37 SFR homes in the R -1 zone. The staff numbers are miss leading and inaccurate. Of the 801 STL permits only 326 properties are currently permitted (duplexes included). The only reason STL is now non conforming is due to the passage of ordinance 2004 -6 3 years ago at 1:OOAM in a late night city council meeting, altering 100 years of public access to the beach on the peninsula. The ramifications of eliminating the historical coastal access of 15%-20% of STL TOT (tax) revenue demands closer scrutiny. Vacation Rentals in R -1 are typically luxury accommodations renting in excess of $10,000 per week. The R -1 premium houses have been unfairly included in this debate. Lodging and Alcohol -Drug Rehab businesses have nothing in common. I also would like to see a "summary of what other Cities have been successful in incorporating into their ordinances dealing with these issues..." Nevertheless, we need to focus on crafting a document that improves the ability of the city to monitor and control business activity incongruous to the neighborhood (vacation rentals and second homes have been part of the neighborhood for decades). The planning commission reluctantly approved the FEP ordinance (2004 -16) 3 years ago after only 2 hearings (read the minutes). What is the result? Three years later we have dozens more drug /alcohol rehab homes in our neighborhoods. Now after spending 100's of hours and 10OK's of $ lets not rush this process again without thorough public input on the proposed draft ordinance. As Bob Rush observes this draft document raises more questions than it answers. How many rehab facilities does this proposed ordinance POTENTIALLY allow? 150 -450? Why? Dave Kiff states only "If the Planning Commission is able to comfortably forward the ordinances to the City Council" should you vote in favor of this draft. Please send this draft back for a SECOND revision. The moratorium will have to be extended to get it right this time around. It is the right thing to do. Craig Batley Management One 2901 Newport B Newport Beach, (949) 675 -4630 (949) 675 -2127 Burr White Lvd. CA 92663 Phone Fax 1 a 4-) (800) 944 -0952 Toll -free www.burrwhite.com From: robert rush [ mailto:rrush @usrealtygroup.com] Sent: Thu 8/16/2007 7:33 PM To: eaton727 @earthlink.net; 'Alford, Patrick' Cc: 'Lepo, David'; 'Harp, Aaron'; 'robert rush'; strataland @earthlink.net; scott.peotter @taxfighter.com; emcdaniel @fullertoncb.com; bhillgren @cox.net; rhawkins @earthlink.net; eaton727 @earthlink.net; jeff.cole @cushwake.com; 'Donald L. Webb'; 'Edward D. Selich'; 'Keith D. Curry'; 'Leslie J. Daigle'; 'Steven Jay Rosansky'; 'Michael F. Henn'; 'Nancy Gardner' Subject: RE: Residential Uses Code Amendment Barry Good questions Barry... however related to your Item # 8 below ...Why does the Draft contain a very sly nuance of "l house of a type per block" ( see above attachment "8 -23 PCDrafStaffReportFINAL ", Page 11, Para 1 ) .... This ordinance provision would result in sanctioning MORE group homes than Newport Beach already has.... Examine the issue just by using the Peninsula area between 10th & 60th streets.... roughly 50 streets and each having an average of 3 blocks... The Draft's "l house of a type per block" would immediately result in 150 houses sanctioned into existence by the City ...so we'd have 150 Drug Rehabs occurring between 10th & 60th streets .... and for each new type of Group Home (ie; maybe an elderly care or eating disorder home, etc) there would be another 150 homes sanctioned between 10th & 60th streets..... Considering the 300 foot distancing of most other categories of Group Homes by the State this Draft's provision of "1 house of a type per block" could conceivably result in as many as 3 Group Homes per block ...possibly in the range of 400 -450 group homes in all ....fully sanctioned by the City's New Draft Ordinance. Ask yourself ... WHY ..... why would such a nuance be inserted to the Ordinance Draft ..? ....Surely with all the UNBIASED expertise that we've been paying for as a City... THIS COULDN'T BE A BLATANT MISTAKE ....COULD IT .... OR IS IT INTENTIONAL.....? My conclusion is that in either case Intentional or Erroneous ...We have a BIG problem here that this could get into the Draft at this stage of the writing and it calls into question the competence of the author because this essentially moves us in the direction of worsening Overconcentration ....... Just as the 2004 -16 Ordinance Modification worsened the situation.. Very odd ...... and this same "l house of a type per block" turned up in the AG Letter too .... hmmm. Bob Rush - - - -- Original Message---- - From: Susan /Barry Eaton [mailto:eaton727 @earthlink.net <mailto:eaton727 @earthlink.net> Sent: Wednesday, August 15, 2007 10:00 PM To: Alford, Patrick Cc: Lepo, David; Harp, Aaron Subject: Residential Uses Code Amendment Patrick, I have now read this staff report, the attached amendment, and the other attachments forwarded to us thus far. It does appear to be significantly more substantial than the previous draft; and it appears that it will entail a great deal of effort on the part of 2 P_ I1 { both staff and the Commission, if adopted. Nonetheless, I do have some questions: 1) It appears that both existing and proposed small licensed facilities will be permitted to continue, and be newly established, by right, as dictated by State Law - unless they are deemed part of an Integral Facility. Does this mean that they will also not be utilized in the separation determinations as provided for in proposed Section 20.91A.030.A.2. of the proposed Amendments, if they are not part of an Integral Facility? If they are deemed part of an Integral Facility, will they then become part of the separation determinations? 2 Do the Occupancy restrictions of proposed Section 20.91A.030.B. conflict with the State Housing Code, and the Appellate Court decision rendered in the City of Santa Ana? 3) It appears that Vacation Rentals in the R -1 zone are non - conforming; and that they will, of necessity, become a part of the Abatement Procedures proposed in Section 20.62.090.B. of the proposed Amendments. What other possible or probable non conforming uses are out there in the residential zones, that would be subject to these provisions, and how many of them might there be? Were some of the churches in Residential zones developed prior to Use Permit requirements, for example? 9) In the proposed Section 20.62.030A. & B., the definition of nonconformity is being proposed to be amended to include only "lawfully established and maintained" uses. I would assume that there are many uses in the residential zones that were not ever lawfully established in accordance with the zoning regulations in effect at the time of their establishment, which could range all the way from individual bootleg units to the rather large Narconnan facility, which required a Use Permit at the time of its establishment, but apparently never applied for or received such a permit. If these uses are not nonconformities under the proposed regulations, how will they be dealt with under the proposed enforcement program? 5) Proposed Chapter 28 initiates a "Reasonable Accommodation" process, as had the previous draft, but the standards and findings (and perhaps the applicability) has changed. There are still 2 processes for Reasonable Accommodation - one for those applications that do not accompany another discretionary approval application, and another for those that do. What kind of use would the first category entail - licensed small facilities? Why would they need a Reasonable Accommodation, if they have a ADP license? And why would an applicant for another discretionary permit, such as a Use Permit for an unlicensed small facility, also desire a Reasonable Accommodation? 6) If unlicensed small facilities are directed to file an application for a Use Permit, could they just as easily apply for an ADP license, and thereby avoid any City requirements? Are there any City requirements for licensed small facilities, such as registration or emergency contacts, or are these provided for in the ADP licensing procedure, and made available to the City's emergency Departments? 7) The staff report notes (on page 8), that the larger Residential Care Facilities will be limited to the MFR zone (which is a good thing, in my opinion). That paragraph goes on to state that there are 188 acres in this zoning, plus an additional 828 acres designated Multiple Residential in the General Plan, but apparently not zoned MFR. Can you give any examples of what zones those General Plan designations do fall into, and where they are in the City? 8) Can you expand upon the thought process that led to the separation requirement of one per block, and none within 75 feet of each other? How were these criteria arrived at? Does the 75 feet relate to the development patterns in parts of the City? If not, why 75', rather than, say, 100 feet or 300 feet? There is already a code definition of a Block Face. Was this considered, as well? 9) The staff report (on page 13) notes that the 3 Specific Plan schedules are proposed to be "...revised to prohibit clubs and lodges, religious assembly, and medical office uses." Why were medical office uses included in this proposed prohibition? And, in the next paragraph, it is pointed out that RLUIPA protects religious uses; and that: "Therefore, no changes to the land use regulations for religious assembly are proposed." Is this not a direct conflict with the preceding paragraph? 3 �� 10) Finally, one of the 3 things which I had requested that staff look at, at the end of our June 19th meeting, and which was incorporated into the motion of continuance (see 2nd paragraph at the top of page 48 of the minutes of that meeting) was some summary of what other Cities have been successful in incorporating into their ordinances dealing with these issues. The staff report doesn't appear to address that at all; and the letter form Goldfarb and Lipman appears to relate a few examples from other Cities, but appears to go on to distinguish those as being different circumstances than Newport Beach. Was it not possible to find examples of successful strategies in other Cities that would be applicable to Newport Beach? Thank you very much for your consideration of these questions. I look forward to your response. Barry asp August 23, 2007 Mr. Robert Hawkins Planning Commission, Chair City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Short Term Lodging In Rl Dear Mr. Hawkins, MOCEM BY PLANNING 6&WMENI ADS 22 2001 CIN OF NNW OCH I live at 126 East Oceanfront and greatly enjoy the beach life style. I pride myself in my frequent use of the ocean and boardwalk as an avid sports person and people watcher. I do not support short-term lodging in RI areas on the Balboa Peninsula for reasons set forth below. I also believe, however, that all addresses in Rl on the Balboa Peninsula should have the same rental privileges for both short and long -term lodging. I do not have a view concerning other Rl areas in Newport as I have only lived in Newport Beach at my current address. Although I owned my home when 5.95.020 was amended in June 2004, I was not aware of the need to secure a Short Term Lodging Permit or forever lose such right. Although Mr. Harp and Glen Everroad have been belpful and have assured me that residents were given proper notice, I believe that I should have received at least a post card about the amendment as is the practice with many other matters under consideration by the City of Newport that directly effect a property owner or resident. Moreover, staff members of the Revenue Department told me that certain real estate brokers were contacted directly by the Revenue Department about the proposed amendment. My lack of support for short term lodging in Rl is the result of my vastly different experiences with the homes that are immediately to the east and immediately to the west of my home. The home to east is rented on a year round basis to a large family. They are "good neighbors" in the truest sense of the term. The home to the west has a short term lodging permit that has been maintained by the "address" although the house was sold in April of 2006 and is once again on the market. Although the house is managed by Burr White Realty who I consider very professional, it is my first band experience that they cannot regulate the "day and night" atmosphere of partying that often characterize the short term lodgers to my west and at other addresses near by home. Although I enjoy the sound of a family having fun, as is the case with a minority of the short term lodgers, I am quite disturbed by anyone anywhere that is loud, smoking and generally oblivious because of the effects of alcohol. I disagree with the notion that number of DAC's issued by the police reflect the impact of Short Term Lodging on the Balboa Peninsula given the unwillingness of neighbors and myself to contact the police given our concern about "what happens after the police are gone ". There are legitimate reasons why year round residents on the Boardwalk breathe a sigh of relief after Labor Day. Unfortunately, weekend rentals during the non - summer months can be as disruptive as summer rentals. To summarize, from a lifestyle perspective, a full time resident is usually a much better neighbor than a short-term lodger. I am aware of the economic arguments set forth by certain homeowners and rental agents concerning short-term lodging. If a long time permit holder complains about "economic hardship," I would advise them to compare the market value of their property to its basis. In all likelihood they have already done very well on their residential property turned "investment" property. Tax laws would provide them with a favorable means of substituting their residential property for an investment property not in an R1 area. I am also quite sure that the rental agents understand that business environments sometimes change quickly as evidenced by the recent downturn in the national real estate market. A compromise between eliminating all R1 Short Term Lodging Permits on the Balboa Peninsula or maintaining the status quo, and also a solution that would return fairness to all R1 addresses, would be to allow the issuance of additional Short Term Lodging permits but change the year or number of annual days when they may be used. For example, perhaps odd numbered Short Term Lodging Permits would be valid in odd years and even numbered Short Term Lodging Permits would be valid in even years. Regulating such activities could be as simple as requiring rental properties to exhibit a notice detailing the dates of permissible rentals periods. In conclusion, I would like to reiterate that I do not support short-term lodging in RI areas on the Balboa Peninsula and believe R1 areas should be preserved for year round residents. I also believe, however, that all addresses in R1 on the Balboa Peninsula should have the same rental privileges for short-term lodging. Sincerely YourVkd � f Max Lis cc: Planning Commision and City Council 3 MRS. CAROL MARTIN 1824 West Ocean Front Newport Beach, California 92663 August 21, 2007 Planning Commission City of Newport Beach 3300 Newport Blvd. Newport Beach, Ca. Re: Residential Uses Code Amendment (PA 2007 -112) Gentlemen: PL4NNIN�G p p, ENT AUG 22 2007 CRY OF NEWPORT BEACH 6�� P � � This is to voice my opposition to the above referenced proposal. It represents poor planning. Nor is it in the spirit of our new General Plan that incorporated the vision of the people of Newport Beach who spent many hours in discussion of what our city should be. In that visioning process this was not the vision people sought. This proposed amendment is subject to a vast array of interpretations that can seriously impact property rights of innocent property owners. The titling of the measure is misleading in that it does not clearly alert the public to the massive abatement of property uses included. Many aspects of the proposed ordinance include changes which create potential problems for all residents of Newport Beach especially those that reside in less transient more stable areas. In the more transient areas the impact on properties cannot be predicted accurately since implementation will be subject to interpretation. I believe that this is a dangerous course to pursue and would predict that the cost of the expensive litigation which would be expected to follow will result in budgetary constraints that result in reduced services and fewer public facilities for the good of the community. Sincerely, Carol Martin Message Varin, Ginger Page 1 of 2 From: Robert C. Hawkins [rhawkins @earthlink.net] V Sent: Wednesday, August 22, 2007 10:52 AM To: Varin, Ginger; 'robert rush' Cc: mfhenn @verizon.net; 'Robert Hawkins'; 'Michael Lee Toerge'; 'Jeffrey Cole'; 'Scott Peotter'; 'Earl McDaniel'; 'Barry Eaton'; brhillgren @hotmail.com; Clauson, Robin; Harp, Aaron; Lepo, David; Selich, Edward; Gardner, Nancy; Curry, Keith; Rosansky, Steven; Daigle, Leslie; 'Don Webb, Mayor' Subject: FW: Proposed Ordinances Greetings, Thank you for your comments on this important project. By this email, I am requesting that the Planning Department include this comment in the administrative record on this Project. Thanks again. RCH Robert C. Hawkins, Esq. (SBN 144906) Law Offices of Robert C. Hawkins 110 Newport Center Dr., Ste. 200 Newport Beach, California 92660 ph: 949 650 5550 fax: 949 650 1181 mobile: 949 500 1232 e -mail: rhawkins@,,earthlink.net This e-mail message and any attachments are confidential and may be attomey- client privileged. If you are not the intended recipient, please notify the Law Offices of Robert C. Hawkins by telephone (949) 650 5550 or by e-mail at rhawkins@,,earthlink.net, and destroy the original and all copies and/or versions of this message and any attachments. - - - -- Original Message---- - From: robert rush [ mailto:rrush @usrealtygroup.com] Sent: Wednesday, August 22, 2007 9:50 AM To: 'robert rush' Cc: mfhenn @verizon.net; 'Robert Hawkins'; 'Michael Lee Toerge'; 'Jeffrey Cole'; 'Scott Peotter; 'Earl McDaniel'; 'Barry Eaton'; brhillgren @hotmail.com; ' Clauson, Robin'; 'Aaron C. Harp'; 'David Lepo'; 'Ed Selich'; 'Nancy Gardner'; 'Keith D. Curry'; ' Rosansky, Steven'; 'Leslie Daigle'; 'Don Webb, Mayor' Subject: RE: Proposed Ordinances Good Job and Kudos to Mike Henn for the Pasadena "500 ft Ordinance" find....!! With a crack team of "Consult ... errr, Advisors ", "Conference of Cities ", "League of Cities" and "City Attorney List Serve" and the cutting edge law firm of Goldfarb & Lipman at her disposal.... The question to be asked.. .....Why didn't Robin Clauson find &. disclose this pertinent Pasadena item (below)... ?? How many other pertinent items are going undisclosed.. 08/22/2007 'L l Message Page 2 of 2 And when will the City recognize that legal opinion of the Newport Beach City Attorney... ....should be critically questioned as to accuracy and whose agenda it's reaiiy serving....... Bob Rush From: Mike Henn [mailto:mfhenn @verizon.net] Sent: Tuesday, August 21, 2007 5:08 PM To: Robert Hawkins; Michael Lee Toerge; Jeffrey Cole; Scott Peotter; Earl McDaniel; Barry Eaton; brhillgren @hotmail.com Cc: Clauson, Robin; Aaron C. Harp; David Lepo; Ed Selich; Nancy Gardner; Keith D. Curry; Rosansky, Steven; Leslie Daigle; Don Webb, Mayor Subject: Proposed Ordinances To All: Please see the attached. I called the Pasadena City Attorney to discuss this. The City of Pasadena on August 13th passed to a second reading an ordinance prohibiting all unlicensed group home facilities (including drug and alcohol, except licensed 6 and under) in residential districts except if permitted through a reasonable accommodation process. One of the requirements of their proposed reasonable accommodation process is a separation requirement. Staff originally proposed a 300 foot separation distance consistent with other such requirements in State law; however, the Council amended the ordinance at the meeting to increase it to 500 feet. Council was apprised of the legal issues in a closed session memorandum prior to the vote. The City Attorney characterized the 8 member Council as relatively sophisticated and its make up includes three practicing lawyers, who 1 think voted for the ordinance. The ordinance does not require existing homes who receive the reasonable accommodation to amortize their use because they were inside the 500 foot limit. This decision was apparently influenced by the operator of an affordable housing group home that the City supports financially, that they didn't want to threaten. Otherwise, there was little opposition expressed from the drug and alcohol group home operator community. Mike http: / /www.cityofpasadena. net /councilageendas /2007 %20ag_endas /Auq 13 07 /9A2.pdf 5 08/22/2007 Alford From: Sent: To: Cc: Subject: Attachments: Craig Batley [Craig @burrwhite.com] Wednesday, August 22, 2007 5:44 AM Craig Batley; robert rush; eaton727 @earthlink.net; Alford, Patrick Lepo, David; Harp, Aaron; robert rush; strataland @earthlink.net; soott.peotter @taxfighter.com; emcdaniel @fullertoncb.com; bhillgren @oox.net rhawkins @earthlink.net eaton727 @earthlink.net; jeff.cole @cushwake.com; Donald L. Webb; Selich, Edward; Curry, Keith; Daigle, Leslie; Rosansky, Steven; Henn, Michael; Gardner, Nancy RE: Residential Uses Code Amendment Planning Commission Letter RE Group Home Ordinance.doc i�l Planning mmission Letter RE Please ignore previous email .... I made a revision in the word attached doc .... the above doc is the one ment to be read.... thank you Hi All, The issue of dealing with the Group Homes is too serious and the long term ramifications are potentially devistating to all concerned. Vacationers, homeowners, second home owners, investment property owners, businesses, city staff, and the public are stakeholders in effectively regulating "Group Homes" in Newport Beach, especially on the peninsula. Please send the 2nd draft ordinance back for revision by staff. In addition, it would be helpful to thoroughly investigate how other cities and states (Arizona state Health and Human Services Department requires ALL, including 6 and under Group Homes to be licensed and meet minimum standards) deal with this issue . Obviously, to get this ordinance right will take more time and require the moratorium be to extended. A few days to ferret out all the nuisances of this far reaching ordinance is impossible. Thank you for your consideration and feedback. I have attached a letter to the Planning Commission Craig Batley Management One Burr White 2901 Newport Blvd. Newport Beach, CA 92663 (949) 675 -4630 Phone (949) 675 -2127 Fax (800) 944 -0952 Toll -free www.burrwhite.com I am out of town for the week. From: Craig Batley Sent: Fri 8/17/2007 12:49 AM To: robert rush; eaton727 @earthlink.net; 'Alford, Patrick' Cc: 'Lego, David'; 'Harp, Aaron'; 'robert rush'; strataland @earthlink.net; scott.peotter @taxfighter.com; emcdaniel @fullertoncb.com; bhillgren @cox.net; rhawkins @earthlink.net; eaton727 @earthlink.net; jeff.cole @cushwake.com; 'Donald L. Webb'; 'Edward D. Selich'; 'Keith D. Curry'; 'Leslie J. Daigle'; 'Steven Jay Rosansky'; 'Michael F. Henn'; 'Nancy Gardner' Subject: RE: Residential Uses Code Amendment Hi All 11 BURR WHFTE REALTY VACATION RENTALS • SALES • PROPERTY MANAGEMENT August 21, 2007 Mr. Robert Hawkins Planning Commission, Chair City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Proposed "Group Occupancy' Ordinance Dear Mr. Hawkins, First of all the City Council allowed the June 8, 2007 moratorium on the issuance of new short-term lodging permits to expire. Why? Short term lodging is currently regulated by the city and is an integral part of historical use and beach access by families who vacation on the Peninsula and Balboa Island. I respectively, submit that the Planning Commission drop Short Term Lodging (STL) from the current Ordinance Proposal, and deal with Vacation Rentals when the city updates the regulations contained in Title 5 of the City's municipal code. The two issues need to be bifurcated as they are distinct and totally different uses that have their own idiosyncrasies. Family vacation guests are not in the same category as court ordered drug and alcohol wards of the court. Secondly, the city's attempt to categorize vacation guests, many of who lived and grew up in Newport Beach, 80% of whom visit the peninsula during the month's of July and August as somehow similar in behavior, demographics, or any category to Group Homes is at best unfair. Short Term Lodging provides vacation - guests a choice to lodge at the beach in residential accommodations comprised of second homes and investment property owned in many cases for more the 50 years. My comments in this letter refer specifically to the City's short sighted proposal to discontinue a 100 tradition of short -term lodging in R -1 zones. There is no statistical nor empirical data that justifies such a drastic action by the City. Furthermore, the much of the information provided in the proposed ordinance pertaining to Short Term Lodging is misleading, missing or untrue. How does STL differ from Group Homes? The City refers to Short Term Lodging as "families" staying in a rental as a single housekeeping unit during a specifically defined rental period of 30 days or less. Burr White Realty names the parties and limits occupancy in written agreement between the property owner and the guest, clearly defining terms of occupancy. Short Term Lodging is currently regulated and pays 10% of all TOT tax collected by the City. Time does not permit to delineate all the myriad differences. 2901 NEWPORT BLVD., NEWPORT BEACH, CA 92663 P949.675.4630 F949.675.2127 W W W. BURRWHTIE.COM I1 Page 12 .............. .....I ......... the following points are presented with the intention to differentiate STL from Group Homes and thus recommend a complete bifurcation of any STL code changes from the current proposed "Group Occupancy Ordinance ". Each point discusses why the current ordinance's proposed amortization and abatement of vacation homes in R -1 areas should be dealt with separately when the city updates the regulations contained in Title 5 of the City's municipal code. 1. Ordinance 2004 -6. The only reason that STL is included in the amortization web is due to ordinance 2004 -6, an ordinance that received no public scrutiny, no public hearing (placed on the agenda a few days before the city council meeting) or input from the business community. 2. Ordinance 2004 -16. Passing ordinance 2004 -6 was deemed "necessary" by the city attorney as a prelude to the planning commission reluctantly approving the FEP ordinance (2004 -16) three years ago after only 2 hearings (I have read the minutes). What is the result of the implementation of this ordinance? Three years later we now have dozens more drug/alcohol rehab homes in our neighborhoods. After spending countless hours and thousands of dollars in addressing this issue, let's not make the mistake again by rushing this public hearing process without thorough public input from all affected parties on the proposed draft ordinance. 3. Impact on Visitors and Public Beach Access. A family of 4 can save about $500 42,000 for a weekly stay in a vacation rental on the beach in place of staying in traditional hotel lodging. For visitors to the Balboa Peninsula who want to make their stay in Newport Beach revolve around the sand and surf, there are limited opportunities to have longer short -term stays. Couple this with limited parking and the gradual property type changes from duplex to SFR — public access to the beach is already limited. Banning R -1 short -term rentals has an adverse impact on the affordability for families wishing to access the public beach for an extended time in our City. Disallowing STL in R -1 for beach -going families may be viewed as discriminatory due to the restriction and limitation for the public to access the beaches. It is very likely this interferes with the public's constitutional right of access pursuant to Section 4 of Article X of the California Constitution. 4..Hotel Rooms. The total number of hotel rooms on the Balboa Peninsula is very limited (108). These include — Little in by the Bay (18), The Bay Shores Inn (25), The Balboa Inn (34), the Newport Beach Hotel (20) and the Doryman's Inn (11). Burr White Realty alone currently manages 37 (where did the city get the number 30 ?) active short -term rental properties in R -1 zones. With an average of each R -1 property equal to at least three hotel rooms, an R -1 ban would equate to closing all of the Balboa Peninsula Hotels. Banning STL eliminates 111 "hotel rooms" from the existing rental pool. When one counts the right of homeowners to offer the remaining 51 other currently PERMITED homes in R -1 to enter the active STL rental pool we are looking at denying public access to an additional 153 "hotel rooms." Furthermore, STL remove from the public historically unique lodging accommodations. This is not a proposal the California Coastal Commission would approve of as such an ordinance removes a significant amount of long standing public to access the beaches in Newport. ........... Page 1 3 If all R -1 STL homes are currently legal nonconforming properties then they should be classified differently under the City's residential zoning matrix with revised /regulated occupancy restrictions (i.e. by defining occupancy based on California law such as California's Health and Safety Code 17992(a)(1)(b) j and made to be legal conforming. Short Term Lodging (single family homes valued at $4M to $16M) is in no way equivalent to Group Home properties as defined by the City in this proposed ordinance. It is particularly interesting to note how the city skews the numbers regarding STL. Staff mentions there are 801 total existing STL permits in the city. What they fail to mention is there are only 498 individual units (including duplexes) active of which there are only 312 individually owned properties in the STL current rental pool. Why is this significant? Staff purposefully states there are only a total of 88 R -1 properties and only 30 are active giving the false impression the loss of those 30 is a little or no consequence. Not only is this misleading but as already explained the R -1 properties are the least impactful to the neighborhood but the most important STL offering in the rental pool. Thus it is more accurate to represent the R -1 properties as approximately 15 % -18% of the active units and 25% of total TOT revenue. 5. Limited # of DACs . Complaints from neighbors in R -1 districts in the past have been quite limited with less than 1% of all DACs being issued in R -1 districts to our 37 single family residences. Considering nearly 400 families occupy these properties during June, July & August that is remarkable. This information sharply contrasts with the city's statistically misleading survey. 6. Vacation Rental Season. The seasonal impact for all residential zones is only 10 -12 weeks, with the main June 15 — August summer season only 10 weeks long. Further, many home owners and their friends use their homes for several weeks during the summer. Many of these 37 homes remain vacant the majority of the off - season. The over all neighborhood impact in the R -1 area is "intense' for less than 3 months of the year. The guest profile is decidedly upper end demographically; guest is paying from $4,900 411,500 per week or $700 - $1,650 per day for one of these homes. 1 invite anyone on the Planning Commission to take a tour of these homes and decide for yourself if R -1 STL should be included in the Group Home ordinance. 7. Sales & TOT Tax Reduced in the Future. Eliminating short-term lodging in R -1 harms all Balboa Peninsula businesses. if weeklong vacationers are indiscriminately prevented from renting a multi- million dollar home in R- 1 areas which are especially concentrated in the 92661 zipcode, the Balboa Village becomes less viable for small business owners. The commercial areas of the peninsula are completely seasonal and with the average weekly vacationing family spending in excess of an additional $2,700 per week (city consultant) at local business, the loss revenue to both the Newport and Balboa merchant areas is significant. Millions of dollars will be lost by owners and merchants alike. As the City just spent in excess of 4 million dollars on a face lift for Balboa, it would seem illogical to make it harder for existing and new businesses to stay in Balboa by removing significant income from their seasonal revenues. 1 recommend that the City do a long -term financial impact of lost commercial revenue to local businesses (including local property owners) as well as the lost sales tax and TOT revenue to the City if short- term lodging were too eliminated from R -1 areas. Page 4 .... ................ .......................... . TOT taxes have increased significantly over the past 10 years thanks in part to companies like Burr White Realty who have brought an ever increasing number of high - paying families to the area's vacation homes. The mix of rentals in all residential zones has favored higher rental rates over time due to an increasing trend of single family residences (SFR) replacing duplexes. SFR's bring in higher rental rates (and thus higher TOT taxes to the City) and results in fewer overall vacationers due to lower occupancy limits of SFR's. However, the long -term trend indicates more and more single family homes will be built in place of higher - occupancy multi- family units and thus the TOT taxes to the City will only increase from these short -term rentals. Currently the City takes in excess of 1 million dollars in short -term rental TOT tax. Thus, the elimination of R -1 short -term lodging, where the majority of SFR's are located, will have a significant higher percentage negative impact to the City's TOT tax revenue over time. The Balboa BID Association will feel the impact as well. This purposed ordinance fails to acknowledge the character of the peninsula as a decidedly dense rental neighborhood. Well over 60% of the peninsula properties are rentals and second homes. The city has expended $100,000's, hired outside counsel, consultants and devoted 1000's of man hours analyzing the Drug Alcohol Group Home issue. In a few short days I cannot hope to fully analyze this complicated ordinance, its ramifications, inclusions, exceptions and endless potential impacts on businesses, homeowners, vacationers, and all those individuals that aren't even aware of this ordinance. Many citizens have offered cogent, thoughtful suggestions during this process, yet the city attorney continues to be guided by outside counsel often at the exclusion of its citizens (CCN) and their own counsel. Since, Short Term Lodging is currently regulated, on June 8, 2007 the City Council dropped Short Term Lodging from the moratorium. Likewise and for the reasons above I urge the Planning Commission the bifurcate Short Term Lodging once again from the "Group Home' ordinance. Lets not get side tracked by harming stakeholders who concur with residents desire to effectively regulate Group Homes. Thank you for your thoughtful consideration of this matter. If you have any questions or comments, please call me at 949/6754630 or email me at craig @burrwhite.com. Sincerely, Craig Batley Burr White Realty ko Pagel of 1 g•aa Alford, Patrick a From: robert rush [rrush @usrealtygroup.com] Sent: Monday, August 20, 2007 12:12 PM To: 'robert rush' Cc: Lepo, David; Harp, Aaron; strataland @earthlink.net; soott.peotter @taxfighter.com; emcdaniel @fullertoncb.com; bhillgren @oox.net; rhawkins @earthlink.net; eaton727@earthlink.net; jeff.cole@cushwake.com; 'Donald L. Webb'; Selich, Edward; Curry, Keith; Daigle, Leslie; Rosansky, Steven; Henn, Michael; Gardner, Nancy; Alford, Patrick Subject: Is History Repeating Itself...? Attachments: 1_NB - Plan Comm Mtg 6- 17 -04.pdf 'Those who cannot remember the past are condemned to repeat It George Sontarana. The We of Reason, Volume 1, 1905 Intelligent minds know that understanding the mistakes of the past will help prevent making the same mistake again.... but during my last year of investigating this rise of Group Homes in Newport Beach and the different characters and mistakes involved, many people responsible have said to the Community "..don't focus on the.past.,it's behind us.." Many of these people responsible have good reason to avoid looking at the mistake of the past...... Want to see one of the many past mistakes.... that led directly to Newport's current Overconcentration..? Here's Robin Clausen ramming through Planning Commission the 2004 -16 Ordinance Modification while stating "...fit) was the most legally defensible ordinance to suggest to the Planning Commission —Z Despite wide range protest from the Planning Commissioners, Clausen pushed the ordinance through. This Ordinance caused possibly..the worst Overconcentration of Group Homes jn the United States. See it for yourself ...in the highlighted Planning Commission minutes from June 2004 attached .... :0r i 1 ( Please pass this email on) 03/20/2007 Planning Commission Minutes 06/17(2004 CITY OF NEWPORT BEACH Planning Commission Minutes June 17, 2004 Regular Meeting - 6:30 p.m. �(-� �� [s•aa•oZ Page I of 29 FJ file:UH: \Plancwnm\2004\0617.hun 4'1117nnne Y INDEX ROLL CALL Commissioners Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker - Commissioners Kiser and Toerge are excused. STAFF PRESENT: Patricia L. Temple, Planning Director Robin Clauson, Assistant City Attorney Jeff Goldfarb, Consulting Attorney of Rutan and Tucker Rich Edmonston, Transportation and Development Services Manager Gregg Ramirez, Assistant Planner Ginger Varin, Planning Commission Executive Secretary PUBLIC COMMENTS: PUBLIC COMMENTS None POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on June 11, 2004. CONSENT CALENDAR SUBJECT: MINUTES of the adjourned and regular meeting of ITEM NO.1 June 3, 2004. Approved Approved as amended and ordered filed. Motion was made by Chairperson McDaniel to approve the minutes as amended. Ayes: Eaton, Cole, McDaniel, Selich and Tucker Noes: None file:UH: \Plancwnm\2004\0617.hun 4'1117nnne Y Planning Con-uuission Minutes 06/17 /2004 Page 2 of 29 Absent: Kiser, Toerge Abstain: None HEARING ITEMS SUBJECT: Group Homes in Residential Zones (PA2004- ITEM NO.2 t 02) PA2004 -102 The proposed amendment will establish new definitions applicable to group Recommended homes and amends where and how group homes may locate and operate for approval within residential zones. Attorney Goldfarb, special counsel, noted the following: • The attorneys met with Darren Cottriei of Pillsbury Winthrop, LLP attorneys for Linda Orozco and Denys Oberman- . A number of changes have been made resulting from the first Planning Commission public hearing and are contained in the staff report: 1) Definition of 'campus' - means three or more buildings being used together for a common purpose where one of the buildings provides a service for the users of all the buildings. 2) The Planning Commission is going to be the agency that is responsible for looking at what was previously called a reasonable accommodation and has now been changers to a 'Federal Exception Permit.' 3) The factors applicable to a 'reasonable accommodation' or a 'Federal Exception Permit' as it is now called, have been changed.. A number of criteria have been added. 4) We have clarified that the process €or a 'Federal Exception Pennir is a public hearing process with notice and hearing prior to a determination by the Planning Commission. At Commissioner inquiry, Mr. Goldfarb noted: • There are a number of findings that the Planning Commission must make in order to grant a Federal Exception Permit and are contained in C.3 in the draft ordinance. • The second finding relates to whether the applicant is operating as a single housekeeping unit. All residential uses in the City are required to operate as a single housekeeping unit. If the applicant is not operating as a single housekeeping unit and they have seven or more residents in the facility, then it would not quality for a Federal Exception Permit. Operating as a single housekeeping unit is that you don't have a high degree of file : /J11A)lancomm\2004W617.htm n7 /17 / ?nnd 2-1 3 Planning Commission Minutes 06/17/2004 Page 3 of 29 individual transition within the living group. Typically a family does not swap out its children on a regular basis. Living as a single housekeeping unit is a lack of transiency amongst the group itself. An example of unstable occupancy would be for instance, a group home of forty residents and the residents were constantly changing, so within the course of a year that group home had approximately 170 different residents. That was a high degree of transiency, and that high degree of transiency plus other factors, demonstrated that they were not living together as a single housekeeping unit. Commissioner Selich affirmed that this would refer to what the status of the property would be after the applicant has the permit for the group home. Continuing, Mr. Goldfarb added: item 3 states, to the extent authorized by law, considerations in terms of issuing whether, and to what extent, a Federal Exception Permit can be issued, include whether the granting of the Federal Exception Permit will substantially cause traffic in the area of the project to exceed the acceptable standards of significance; whether the granting of the Federal Exception Permit will operate in a manner substantially out of conformance with the manner in which the surrounding neighborhood operates; whether the granting of the Federal Exception Permit will generate substantial amounts of commercial traffic in the neighborhood; and whether it will result in a 'campus' in a residential zone. . All of these are designed to ensure that the standards that are applicable to the group home are the same standards that are applicable to other residential uses in the same zone. . If different standards are applied than the standards applicable to residential uses in that zone, then we violate the Federal Fair Housing Act (FHAA) because we are in essence, discriminating against that particular type of use. . The goal was to go through the City Code try to come up with the standards that would generally be applicable to residential uses and equally make sure that they were applied to the group homes. . At Commission inquiry, he noted that an example of traffic violation would be if @ was a significant traffic generator such that it violated the City's standards of signifiicance for whatever roadway people are using to get there. If it violated the Level of Service (LOS) standard that are applicable in the area, that file ://H�\Piancomm \2004\06i7.hun 07117/2004 3/ ,i Planning Commission Minutes 06/17/2404 Page 4 of 29 would be a grounds for not approving the Federal Exception Permit. The City would have the ability to perform a traffic study, and always has the ability to do its own investigation on an application. There could be a situation if it was a house that on a regular basis, or an institutional bases, drew a lot of users to that house for some particular purpose, say for a meeting. If the traffic generated when those meetings were occurring was in excess of what is permitted in the City Code, then that would be a problem. . If after the permit was issued, it was then shown to have those negative impacts, the Planning Commission would have the ability to call it back for review and would be a grounds to modify the permit to make sure the violation did not occur again, or revoking the permit. Commissioner Cole asked for explanation of the 'campus' definition. Is there a federal standard or legal issue related, and can we impose greater restrictions in the form of conditions of parking in the event of a'campus' environment? Mr. Goldfarb answered. Having a series of three, four or five homes and one of those homes serving as the dining room for all of them, in essence, what you have is an over - concentration of individuals coming to a single house for a particular service. It creates a situation as if that home had that number of people in it. It would be a much more intense use than otherwise would be the case based on the number of people that reside in that particular home. The idea was to try to address the situation where the occupancy spikes significantly because one of the buildings is functioning as a particular location for many different buildings. . There is no speck federal standard that applies to campus. There is not even a federal definition that applies to campus. Three seemed to be a reasonable number to suggest that you are creating a critical mass and that is what we were looking to do. . If it is a campus situation, then it is not permitted as a use so the issue of conditioning does not come up. Commissioner Tucker noted that following the rational of campus concept having one facility being utilized by two other buildings, why would it be different if those same people instead of residing in file: 1/H:Tlancomm\200410617.htm 07/17nnfm y Planning Commission Minutes 06/17/2004 Page 5 of 24 rdjoining buildings were brought in? You will still have the same over - 1se, is it somehow less offensive if they have come in via van, rather han live in buildings next door? Why is there a distinction? Or. Goldfarb answered that what they were trying to deal with is a situation where the campus is institutionalized. It may be in certain ;ircumstances that people are ferried one way or another into a )articular building. What we tried to do was distinguish it from Situations that apply to the standard residential use. Some individuals have parties at their houses perhaps more than the average individual, but people are allowed to do that. We were dealing with an institutional situation where when you have a particular building that is designated as being the dining hall for a number of other satellite buildings, that is substantially different from the individual who every Saturday night has a party. That was our best attempt to try to address the problem, but not do it in a way that is different than the way that we typically deal with the City's standard residential uses. Commissioner Tucker noted this is a commercial enterprise and the law requires us to not do anything about it as long as the Intensity of that use is effectively no different from what a single family use could or would be in the same zone. The reality is, the, intensity of the commercial use steps over the line. I am not sure that we have anybody that operates their own home the way that these rehab centers seem to operate their business. We are trying to say that somebody could operate their home in this type of fashion, but if we actually had people that did on a purely private basis, we would start looking at ordinances to say that is enough, you are stepping into a commercial mode. What would stop somebody from having parties in their houses and charging people? Mr. Goldfarb answered that the problem is that Federal law does not focus on the limitation in terms of the intensity of uses. The intensity of use may be higher than the intensity of virtually every other residential use in the community. Federal taw does not say you gets to regulate it based on intensity. What Federal law says is you are simply not allowed to create different regulations that apply to these uses in a way that wouldn't apply to a regular residential use. For instance, the City comes up with an ordinance that allowed residents to have only X number of people coming to their homes X number of times a week. If that applied to the average residential use, then that would equally apply to group homes. The analysis, in terms of what Federal law limits us in doing, is the regulation different than the regulation that applies to ordinary residential uses? What Federal law says is that the City must consider these things to be regular residential use. Commissioner Tucker asked what the consequences would be if we l were to pass and attempt to enforce a law that was found to be 5� file:lll l: \Plancomm \2004i0617.hun 09/1712004 Planning Commission Minutes 46/1712004 Page 6 of 29 nconsistent with Federal law? What happens to the City? Mr. Goldfarb explained that the lawsuit that would be brought would Dee one for violation of the Federal Fair Housing Act. Whether a civil rights action could be brought or not, depends on analysis of the case. He stated he was not sure of what the measure of damages would be for the City of Newport Beach. Commissioner Tucker rioted that it is hard to judge when someone is stretching the limits of a commercial operation. It seems that something could be passed citywide that would address a commercial operation in a residential zone. One of the things to consider if we come up with a law that tries to limits things that could happen in anybody's residence in that zone, what is the consequence if we were to lose that case. Mr. Goldfarb noted his concern is that he is not aware of a single case where the court has said to a City, yes you are right, that is a commercial use in a residential zone and therefore you are allowed to prohibit it or regulate it as a commercial use. Commissioner Tucker answered that by defining what is a residential use and having limits on it, you realty haven't called it a commercial use, you haven't needed to make that distinction. You just said, in terms of meetings and people in a given location, here is what the standards are. It would have the same result. Mr. Goldfarb noted that If the City had an ordinance that prohibited a certain number of people coming to your house over a certain period of time that was equally applied to all residential uses in the City, it would not be discriminatory. It would have to be something that applies equally. That is really the touchstone of the federal regulation. The FFHA is geared toward prohibiting discrimination. Federal law in all of the cases are very clear in the way that they say that the Federal Government has concluded that there is a significant public benefit that is achieved by having group homes in residential zones and integrates people in group homes into a residential community. That is the basic purpose of the law. Commissioner Tucker noted he agrees with that. However, at what point do you say that is not really trying to integrate people into an area in a group home context, that is just pure unbridled commercial enterprise in a residential neighborhood. Otherwise it is an impossible task for you to come up with and for us to decide on, we are not really getting to the issue which is how much is too much. Maybe we install a standard in a community that generally likes to let people do to their property what they see fit. Maybe theree comes a point where we put the same regulation on everybody in the City when we are realty concerned about a few abusers. Commissioner Eaton asked about the list of questions that he had sent to Mr. Burnham: to/ file:HIIAPlancomm1200410 6 1 7.him mn7nru4 1 Planning Commission Minutes 06 /17/2404 Mr. Goldfarb answered: : The standard health, safety and welfare detrimental to property or improvements in the vicinity has not been included as a finding as including this language would be too broad. The FHAA will not allow us to impose such broad standards as they are not equally applicable to residential uses in the residential zones. . The next question related to the criteria used for the f=ederal Exception Permit being applied only in violation of the Municipal Cate and the discretion of the Planning Commission. Ms Clauson explained that in the context of the Federal Exception Permit, the idea is that of a consideration. Would this use, as has been shown to occur, create problems that would violate the Municipal' Cade. It would be a basis for a finding of denial, even though it would apply anyway, it would be something to look at and say commercial traffic regulations that we might have, or truck sizes on certain residential streets, or to the extent that there might be any traffic impacts that are specifically outlined that they are the same regulations that we have for traffic and other types of uses in the City. Then those are the types of things that ii: would be applied to and looked at perspectively as opposed to yes of course it is enforceable anywhere in the City. Continuing, Mr. Goldfarb added: Part of the function of the Planning Commission in the process is to be a fact finding body. The reason for the hearing is for the Planning Commission to make the determination on whether the facts are present to either approve or deny the application. It may not be the kind of discretion that is typically applied in a conditional use permit (CUP) type context, but there is an important role for the Planning Commission to perform and that is to perform in a quasi adjudicatory capacity. The last question relates to why have we continued to suggest that the seven or more facilities can operate in the R1.5 and the R -2 zones. No new basis have been discovered for the rational, which is that the City's R -1.5 and R -2 zones have historically been created such that they are typically different than the R -1 zone. it becomes very difficult to go into court and say that these zones are so much like the R -1 zone that there is not the kind of turnover that the R -1 zone has such that it requires it be treated like an R -1 zone. The campus definition has been clamed. He then noted two correspondences from Mr. James C. Person and Mr. Daniel Carlton regarding this standard. The issue that made the standard ambiguous was it didn't describe where the buildings were located for the purpose of figuring out is it or is it not a campus? He then read the entire definition as revised: 'Campus means three or more buildings in a residential zone within a one Page 7 of 29 file: //H;1Plancomm5200410 6 1 7.htm n71170nn4 I/ V b f canning Commission Minutes 0 611 712 004 Page 9 of 29 block radius of each other being used for a common purpose where one of the buildings provide a service for the users of all of the buildings, such as when one of the buildings serves as a kitchen or food service area for the users of the several buildings.' We added that the buildings are in a residential zone. The reason this is important is because if all the residents of those buildings are taken someplace in an industrial or commercial zone, then it isn't an issue for the operation of the residential zone. We didn't think the campus issue played into that. • The other thing is that the buildings be located within a one block radius of each other. The attempt is to try and bring it within the confines of the one case where the court has upheld a campus regulation. Commissioner Eaton noted when there was a previous discussion with Commission Tucker that even if the residents were being shuttled in from a further distance that could create the intensity which could create the problems. Apparently now that would not be part of the campus definition. Mr. Goldfarb answered that was not included in the definition. That is not to say that you are not creating that kind of intensity when people are being bussed in. That was not something that i had considered when I drafted this definition. I have not seen a case where that issue has been addressed. There is one case that spoke to the issue of campus. The court addressed it in terms of 'ghettoization'. What the court said is if the purpose of having group homes in a residential zone is to integrate people into an ordinary residential community, then you are to some extent defeating that purpose if what you are doing is creating a campus internally focused that realty does not have an interaction with the community that is around it. The court suggested that at some point the facility operates in a way that it is so large that it is inward facing and provides all its own services, where there is not that kind of integration with the community, where in essence everybody s neighbor is, for purposes of the FHAA, handicapped, so there is no integration. The case was dealing with a physical campus, and that is why we drafted the language the way that we did. Chairperson McDaniel asked about the definition of a block. if one house is on the east end of the 100 block and the other house is on the west end of 200 block they are a block away, but they are essentially across the street from each other. Mr. Goldfarb answered that his thought with a one block radius is in essence, you take a block and then draw a block around it and bring that in. Commissioner Selich asked what the criteria was for not including the R -A and R -1 in the Federal Exception Permit? How did you draw the line between R -1 and R -1.5. file :!l11: \Plancomm\2004 \0617.htm 0711 V2W 9/ a Planning Commission Minutes 06/17/2004 Page 9 of 29 Or. Goldfarb noted that the criteria of uses with seven or more 7ersons is simply not .permitted in those zones. The R -1.5 zone )perates substantially differently than the R -1 does. Os. Ciauson added that historically the R -1 is more the single family 'esidence without the higher weekly rentals, for either summer/winter. commissioner Selich noted this is an occupancy standard. Are you saying that we have to do this because we have to integrate these lacdrties in the community and in the residential neighborhoods and Ne have to do it equally, but yet you are saying that in an R -1.5 they are permitted, but not permitted in the R -1. How are you meeting the -riteria of the Federal law if you are excluding them out of the R -1 zone and allowing them in the R -1.5. Mr. Goldfarb answered that the standard for people living in the R -1 zone is that individuals living there have to live as a single housekeeping unit. It was our estimation that was not occurring if we drafted it differently. Ms. Ciauson added that the R -1 zone is more of a single family household, less turnover, less transiency as far as not the individuals within the house operating as a single family unit, but the turnover in the rentals. You have a high turnover of people coming and going in the weekly rentals. The R -1 operates more as a single family, low turnover, owner occupied residential area as opposed to the ones that have the higher turnover as far as the family rentals with students. At Commission inquiry, Mr. Goldfarb added that we believe we are complying with the Federal law in those districts and not exempting ourselves by the way the ordinance is drafted. Commissioner Selich noted that this is still not right in the R -1.5 and R -2 districts because many of those districts operate substantially as single family esidential districts even though they are zoned R -2. Areas like Corona del Mar, where you have a lot of R -2 zoning but;i there are blocks where it is all single family homes. Or, if it Is not single family homes, it is duplexes that have been turned into condominiums and are effectively operating as single family units even though they are two units on a lot. They don't have turnover if they are ownedoccuppied condominium units. 'there are some areas in the City in the R-2 where you have higher density units, lice triplexes up to a sixplex. There are a lot of areas that are operating essentially as a single family. By making the definition of where they are permitted or not permitted just based purely on the zoning and not looking at geographic areas seems like we are taking some areas in the City that are essentially single family in character and allowing these uses to go in. If they were zoned R -1, we wouldn't do that. Mr. Goldfarb answered that may be. it may well be that we are struggling with the fact that there are some R -2 areas that operate more akin to an R -1 area. But to the extent that they remain R -2 areas, we have to deal with those R -2 areas as the other R -2 areas operate. Perhaps the answer to that problem is to rezone those areas J 7rnnna file : /1t3: \Plancomrn12 0 0 4106 1 7.htm n7n t j) Planning; Commission Minutes 06/11/2004 Page 10 of 29 to something other than R -2. Commissioner Sel'rch asked what the consequence would be of drawing the line rather between the R -1 and R -1.5, drawing it between the R -2 and the MFR. What would be the consequences or problems fi we take the R -1.5 and the R -2 areas and analyze them and came up with areas that were primarily single family in nature and applied this in some type of overlay format that would apply one standard to rental areas and one standard to single family areas. Mr. Goldfarb answered that we would have a difficult time establishing the factual basis in a challenge to prevail. That may be a valuable exercise, and we could distinguish then between zones and provide different zoning designations through an overlay. In effect that would isolate zones that are to essence R -1 zones and they could be treated accordingly. Commissioner Cole affirmed that the draft ordinance defines campus as it would apply when it is necessary to grant or deny Federal Exception Permit. If a residential care limited for those homes that are six or under are permitted in all zones therefore the campus definition would not apply in those cases. If there were three or more houses together in those situations then it would apply. Public comment was opened. John Stearman, Narcanon of Southern California, referencing the letter from their attorney, noted they support the ordinance as long as it was compliant with Federal and State laws and regulations. Continuing, he noted: • Concerned with the Federal Exception Permit definition. • He asked how the transiency issue is not applied to all the rentals in the City as well. • The permit requires findings for traffic. The proposed hotel for the peninsula, traffic and congestion there could be more than one home could create. • The definition of campus should be addressed. • There are residential areas with churches and American Legion Hall, etc. where they have a lot of transients on a regular basis. • He asked that whatever is applied to his facility, should be applied citywide. Commissioner Tucker asked that the use intensity that Narcanon ie putting the properties to, is that something that you have given any consideration to reducing? What has brought the issue to the forefront is that Narcanon has taken the use that is a granted use anc keeps pushing the intensity. You have people who have bought in the toy file: / 111: \Plancomm \20(911)617.htm 07117/2M14 1 Planning Commission Minutes 06/17/2004 Page I I of 29 residential neighborhood and now they have this new neighbor that is :rucking in more new neighbors. It gets to the point that you look at it and say this can't be what the law meant, and if it did mean that then naybe we need to change our local ordinances as our attorneys advise. Mr. Stearman answered that they cooperate with the neighbors. Sometime ago they used to have events related to Narcanon and because of neighbors concerns in the residential area, those were eliminated. Jerry Marshall, 1810 West. Oceanfront, with Narcanon, noted that recovery is needed and changes people for the better. He noted that this item was originally brought up by people who discriminate people who are in recovery. Discrimination is an issue that needs to be brought up and discussed. The issues of campus and lack of transiency of people in group homes goes against providing reasonable accommodations. This ordinance must be made less restrictive in order to comply with the FHAA. Mr. Goldfarb noted: . Transiency standards can be imposed in the same zones where houses are on a short term rental because the transiency focuses on the individuals within the living group changing. That is different than the duration of a rental period for the unit itself. Commissioner Tucker told the audience not to speak on the need of these services, the Commission understands that. This item has to deal with the intensity of the services and regulation of that intensity to the extent that the Commission can. If you have personal experiences, that's great. However, that is not the issue tonight. Please limit comments to zoning issues only. Dave Silva, Director of Community Relations of Warner Springs, related a story on the community involvement of Narcanon. He asked for the Commission support. Commissioner McDaniel stated that the Commission understands the work of rehab facilities. The Commission can only control zoning issues. He asked that members of the audience should relate zoning issues only. Sally Knara, founder and director of Parent Help USA, and Mothers Against Child Abuse. She noted that she has been in the City with several shelters. She noted that there is discretion in every law and that up to 85% child abuse occurs under the influence of alcohol and drugs. She asked that the Commission support Narcanon. Rich Reuben, attorney with Pillsbury Winthrop noted: Campus issue - the number of three buildings does not make any sense. A definition of three buildings means a large ll � file: //H:kPlancortun\2004N0617.htm 07/17/2004 V11 Planning COMlission Minutes 06 /17/2004 Page 12 of 29 apartment complex with all those speck impacts • One block radius - given the distances on the peninsula, he suggested that yardage be used to make more sense. • Other local cities have adopted stricter ordinances. For example, Irvine requires CUP's for over 7 occupants recovery facilities; Costa Mesa requires CUP's and reasonable accommodation approval processes. Why does Newport Beach have a less restrictive ordinance? . At the May 20th meeting, an audit was requested to determine' the size, location, character, and type requirements of existing facilities, Before you approve an ordinance, you ought to know what is out there. Without all the facts, you can not make a'. good decision. Commissioner Cole asked if the requirements for the CUP's for seven or more recovery homes is for all zoning designations or certain zones? Mr. Goldfarb answered that the City of Irvine has two different regulations applicable to facilities that could be considered to house handicap Persons under the FHAA. The City provides that any sober living environment regardless of the number of persons it serves is permitted without any permits in any residential zone within the City. it is not correct that a CUP is required. Andra Clark noted if this is a zoning issue being discussed, then if you are going to discuss how many people can come in and out of a residential area, then you have to start looking at the beach rentals, condos and summer vacations. Those places are only allowed for a certain amount of time and there are no rules or regulations how many people can occupy a space like that. it would bring about the same amount of transients in a row of summer beach rentals as you are talking about tonight for group homes. People will be coming in from areas outside the City and not know the rules and regulations. it seems to me it should fall under the same rules. Carol Martin, resident of 1800 block of West Oceanfront, presented materials and noted the following: . Pictures showing the nature of mufti - family zoning in Newport Beach. . She had surveyed her block and noted that there 14 lots with an average ownership of 30.5 years with the median length of ownership of 22 years. Only three properties are not owner occupied and with the exception of one problematic property, more than 50% of the residents are over 50 years old. file : /lf1: \Plancomm12004 \0617.htm 07117/2004 13 Planning Commission Minutes 06/17/2004 • She noted her agreement with the proposals allowing group living facilities as proposed. • She supports the Planning Commission will be the entity to grant or not grant the Federal Exception Permits. • The weakest factor in this proposal is enforcement. She asked that this area be further addressed. • The criteria should be strengthened. • Section 10CN and iii refer to vehicular traffic increasing to an extent that they would violate any provision of the Municipal Code and asked for a clarification that those issues are dealt with in the Municipal Code or the General Plan? Ms. Temple answered that those standards are both in the General Plan and the Municipal Code. Dave Johnson, property owner of 1811 West Balboa Blvd. noted the following: • He rented the back unit to Narcanon and then retired to Lake Ellsinore and is now back. • He is disturbed by all the uproar that is going on and does not like to see this. • He had lived in the main unit with Narcanon in the smaller one for two years and there was no problem during that time. • The time that Narcanon had been there and had there been any problem with his other rentals, he would have addressed those problems right away. • As he is now back living here to take care of his rentals, he will be the first one to call if there are any problems. • He requested that a fair compromise should be reached, one that should equitable for everyone. Steve Marquisi, asked if this ordinance would affect property owners Who rent. Ms. Clauson answered the City regulations that currently address rental units is the Short Term Lodging Ordinance and then with regards to parties, we actually have a Large Gathering or Party Ordinance that deal with nuisances caused by over loud or over large parties. Mr. Richard Perlin, 1216 W. Balboa, Executive Director of Newport Coast Recovery noted that his group tries to be a good neighbor and file: //N: \Plancomm \2004 \0617.htm Page 13 of 29 131 07/17/2004 4 Planning C'onunission Minutes 06/17/2004 Page 14 of 29 are responsive to any concerns that the City or neighbors may have. Ne take all input very seriously. If there is a forum that could be 9eveloped where we can address any concerns that arise, we would )e happy to participate. commissioner Eaton asked how marry clients and apartments were in its facility. Mr. Perlin answered that they have 6 apartments and are State licensed for 27 people and average 20 people. Mike Newman, partner in Newport Coast Recovery added that their clients are not allowed to have vehicles. There is no traffic impact as Far as parking or driving. We have no traffic impact in our neighborhood. Donna Cambo, 1812 West Balboa Blvd., asked if the amount of people could be kept to 20. She noted the stress of living next door to Narcanon. Her home is 3 feet from this building and the smoke and cigarette butts in her yard are very troublesome. There are many people that come to Narcanon dairy. There is a lot of bad language. She asked that the Planning Commission make them accountable. At Commission inquiry, she noted that people are bused in a van and the vans are parked on the sides. They also come in on bicycles that are left everywhere. Public comment was closed. Commissioner Eaton noted that the Costa Mesa ordinance includes a reasonable accommodation shall be considered in conjunction with the conditional use permit. How does that process work? Mr. Goldfarb answered he did not draft the Costa Mesa ordinance. However, when applying the standards for purposes of a reasonable accommodation they are aware of the limitations that the FHAA has and apply basically standards that are similar to what are being suggested here. Chairman McDaniel asked about the radius of a block and the use distance. Mr. Goldfarb noted that a distance could be considered. The term of a City block is 1,000 feet. Using a measured distance could be done. Commissioner Selich noted he does not like it and trying to do overlays as suggested during the evening might cause more problems than what we are dealing with here. Commissioner Tucker asked if it would be worth white defining campus to mean how it has been defined by Mr. Goldfarb, or incorporating the concept where regardless of where people live, campus means where you have a building that is taking and doing specialized functions such as food or meeting areas where people � of file: / 1H: \Flaneomml2 0 0410 6 1 7.htm 07/17/7.004 15 Planning Commission Minutes 0611712004 Page 15 of 29 acme in from some other buildings either nearby or several buildings 'urther away for given activities. At some point, maybe campus could )e more broadly defined In our ordinance than what case law has said >o far. Case law may not have addressed a definition of bringing )eople in by van. The campus issue may have addressed just the acts that were before the court at that time. I would like to see if we mn incorporate that concept having to treat all housing units in the R- 1.5 and R -2 zones the same, we may need to deal with it so that averyone is covered. That is a policy decision that the Council will lave to took at. Trying to do it the way we are trying to is not going to )e as comprehensive a way as coming in and dealing with the issues an all structures in the R -1.5 and R -2 zones so that everybody is .reated the same. The Council will have to make a policy decision as .o whether addressing the issue in that type of fashion is more painful han just leaving thinggs the way they are. The only way to get to the Bottom of the issue, 'rf the neighbors and Narcanons of the world can not figure it out between themselves, the problems will have to be addressed on a more overall basis. Chairperson McDaniel noted his concern of campus and distances as well. 300 yards or 1.000 feet as opposed to a block would give it some universality throughout the City. The campus, why does it need to be three buildings; as was said it's the function at one as opposed to being how many units there are participating. What about the busing issue? If one place is functioning as a mess hall and people come in from who knows where to eat, that makes it a campus. Mr. Goldfarb answered that he is more comfortable with three than with two. The City is restricted by existing law and existing precedent He will look at the busing issue between now and the time this item goes to City Council and was unable to render a legal opinion on the defensibility as he needs research. He noted he understands the rational of a commuter campus and a live in campus. The Commission can exercise its discretion to forward this item to the City Council and in the interim we can look at it to give our best legal analysis. Ms. Clauson noted that what was worked on by special counsel and the City Attorney's office and presented tonight is what we thought with the analysis that was done was the most legally defensible ordinance to suggest to the Planning Commission. If the Planning Commission wants to make some recommended changes, then we would have to analyze that in the meanwhile and let the City Council decide whether it would be defensible or not. Chairperson McDaniel noted that he would like to recommend the yardage distance and the campus issue. Motion was made by Commissioner Tucker that we approve, and file a report with the City Council of our findings and recommendations that are set forth in the staff report and the proposed amendment to the Zoning Code that ensures preservation of the unique character of our residential neighborhoods to the maximum extent permitted by State and Federal statutory and decisional law. He would like to '6l file: //H: \Plancomm \2004 \0617.htm nwn 7nnn4 lU Planning Commission Minutes 06/17/2004 :hange the definition of campus to be two or more buildings in a 'esidential zone within a 300 yard radius of each other. He would like ask the City Attorney to consider expanding the term campus to nclude the concept of a commuter campus where there are specialized uses in one building and people are brought in whether from an adjoining building or far away places for those uses. He also suggests to the City Council that the Council consider adopting group gathering standards for all structures in the R -1.5 and R -2 zones to better address the issues. Ms. Clauson noted that the opinion is not going to change regarding the legal defensibility on campus being less than three. The on y case that talks about a campus situation had many more than three. They wanted to try to add three. There is also the added restrictions of distancing requirements. If the focus is more on the campus and the use of the facility rather than the numbers. If you want to recommend two, we will advise Council at that time. Commissioner Tucker noted he is not sure about the defensibility. He acquiesced to the attorneys' judgment and will change the number from two to three buildings. Commissioner Eaton noted he was unable to support the motion. He' cited a personal experience relating to his now - deceased daughter, that has convinced him of the enormous value of these facilities; but noted that as a planner he could not support a process that appears to be designed to have virtually no discretion. It appears that the only way the Planning Commission would have discretion to deny a Federal Exception Permit would be if the Commission found it did not comply with the Code. He doesn't think that allows any discretion. He can not support allowing the larger homes of seven or more in the R- 1.5 or R -2. He has no problem with the smaller facilities, but when you can not exercise discretion on the larger homes, and you can't exercise any discretion on how large those larger homes can be then the City has given up all our possible control even if that would be the safest and most secure to go in terms of the Federal Housing Act. Commissioner Tucker noted that the last part of his motion was al. recommendation that the Council consider adopting group gathering standards for all structures in the R -1.5 and the R -2 zones. I think that drives to the issue, it is not up to us to ignore what the legal counsel has suggested even though I do not agree with t. It is hard to envision that when these laws were passed, that what has happened was an intended consequence. By hearing what special counsel said the legislative bodies didn't look at k that way, instead they just looked at adopting standards that were the same as the standards in the zone and as long as you don't counter those standards, it's okay to have these group home uses. To really address it is to look at the standards for all those zones and I don't know if Council wants to do that. I think we have raised a lot of questions and I think this needs to go back to the Council to deal with. Ayes: Cole, McDaniel, Selich and Tucker Noes: I Eaton file:1/H:1Plancomm12004i0617.htm Page 16 of 29 1ta J 07/1 712004 0 Alford, Patrick From: Michael Afti [MAlti @jdtplaw.com] Sent: Friday, August 17, 2007 g:52 PM To: Alford, Patrick Cc: Alene Taber; Michael Tidus; d .oberman @obermanassociates.com; rrush @usrealtygroup.com; sharon.boles @roadrunner.com; Craig@burrwhite.com Subject: Re: Residential uses code amendment PDF files Dear Mr. Alford, Thank you for your response. That clears it up. Best regards, Michael - - - -- Original Message---- - From: Alford, Patrick <PAlford @city.newport - beach.ca.us> To: Michael Alti CC: Alene Taber; Michael Tidus; d.oberman @obermanassociates.com <d. oberman @obermanassociates.com>; rrush @usrealtygroup.com <rrush @usrealtygroup.com >; sharon.boles @roadrunner.com <sharon.boles @roadrunner.com >; Craig @burrwhite.com <Craig @burrwhite.com> Sent: Fri Aug 17 19:34:46 2007 Subject: RE: Residential uses code amendment PDF files Dear Mr. Alti, Your understanding is not correct. The ordinance (i.e., Resolution Exhibits A -E) that went out to the Planning Commission today and the PDFs I sent you are the same as those that were released on August 13, 2007. Today's Planning Commission packet only added the draft resolution, several additional information attachments, and correspondence that the Planning Department has received since August 13. All of these were sent to you. Of course, I cannot say that this will be the final version considered by the Planning Commission as changes may be proposed in response to the comments that we may receive from the Planning Commission and the public. Patrick J. Alford Senior Planner City of Newport Beach Planning Department 3300 Newport Blvd. Newport Beach, CA 92663 (949) 644 -3235 (Voice) (949) 644 -3229 (Fax) From: Michael Alti [mailto:MAlti @jdtplaw.com] Sent: Fri 8/17/2007 6:00 PM To: Alford, Patrick Cc: Alene Taber; Michael Tidus; d .oberman @obermanassociates.com; rrush @usrealtygroup.com; sharon.boles @roadrunner.com; Craig @burrwhite.com Subject: Re: Residential uses code amendment PDF files Mr. Alford, IV Thank you for your response. I understand the proposed ordinance received additional modifications today. please verify that the version you just emailed me is the final version of the ordinance that the planning commission will consider on August 23, 2007. Thank you. - - - -- Original Message---- - From: Alford, Patrick <PAlford @city.newport - beach.ca.us> To: Michael Alti CC: Alene Taber; Michael Tidus; d.oberman @obermanassociates.com <d.oberman @obermanassociates.com >; rrush @usrealtygroup.com <rrush @usrealtygroup.com >; sharon.boles @roadrunner.com <sharon.boles @roadrunner.com >; Craig @burrwhite.com < Craig @burrwhite.com> Sent: Fri Aug 17 17:49:19 2007 Subject: Residential uses code amendment PDF files Dear Mr. Alti, As we discussed this morning, the City can only distribute electronic copies of documents in PDF format. Attach please find the entire Planning Commission staff report, including exhibits and attachments. I apologize for sending them to you this late in the day. However, the Planning Department only received your request this morning and the staff report packet was still being prepared as of 2:45 pm this afternoon. Patrick S. Alford Senior Planner City of Newport Beach Planning Department 3300 Newport Blvd. Newport Beach, CA 92663 (949) 644 -3235 (Voice) (949) 644 -3229 (Fax) This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney - client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e -mail and delete this message. U.S. Treasury Circular 230 Notice Any U.S. federal tax advice included in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding U.S. federal tax - related penalties or (ii) promoting, marketing, or recommending to another party any tax related matter addressed herein. A Pagel of 1 Alford, Patrick .�o,.yxd�16 f � rr aa•o"1 1 From: robert rush [rrush @usrealtygroup.coml Sent: Friday, August 17, 2007 6:02 PM To: Alford, Patrick; malti @jdtplaw.com Cc: ATaber @jdtplaw.com; MTidus @jdtplaw.com; d.oberman @obermanassociates.com; sharon.boles @roadrunner.com; Craig @burrwhite.com Subject: RE: Residential uses code amendment PDF files Why can the City ONLY provide PDF ..... is there a LAW that states such To create a PDF ... one must start with WORD files ... they can be sent Bob Rush From: Alford, Patrick [ mailto: PAlford @city.newport- beach.ca.us] Sent: Friday, August 17, 2007 5:49 PM To: malti @jdtplaw.com Cc: ATaber@jdtplaw.com; MTidus @jdtplaw.com; d .oberman @obermanassociates.com; rrush @usrealtygroup.com; sharon.boles @roadrunner.com; Craig @burrwhite.corn Subject: Residential uses code amendment PDF files Dear Mr. Alti, As we discussed this morning, the City can only distribute electronic copies of documents in PDF format. Attach please find the entire Planning Commission staff report, including exhibits and attachments. I apologize for sending them to you this late in the day. However, the Planning Department only received your request this morning and the staff report packet was still being prepared as of 2:45 pm this afternoon. Patrick J. Alford Senior Planner City of Newport Beach Planning Department 3300 Newport Blvd. Newport Beach, CA 92663 (949) 644 -3235 (Voice) (949) 644 -3229 (Fax) 08/20/2007 P Page 1 of 2 From: Denys Oberman [ d .oberman @obermanassociates.com] Sent: Friday, August 17, 2007 3:40 PM To: robert rush; eaton727 @earthlink.net; Alford, Patrick Cc: Lepo, David; Harp, Aaron; robert rush; strataland @earthlink.net; scott.peotter @tor fighter.com; emcdaniel @fullertoncb.com; bhillgren @cox.net; rhawkins @earthlink.net; eaton727 @earthlink.net; jeff.cole @cushwake.com; Donald L. Webb; Selich, Edward; Curry, Keith; Daigle, Leslie; Rosansky, Steven; Henn, Michael; Gardner, Nancy Subject: RE: Residential Uses Code Amendment Importance: High Bob - There are a number of troublesome statements in the revised draft, this being one of the most disconcerting. Citizens proposal has NEVER been to eliminate all "Group Homes" N Newport;OR, to do so with a blanket distancing proposal. Proposals as relate to dispersion that have been presented by citizens have related specifcallyto the use characteristics of the Impacted Areas: AND, relative to schools,public parks and bars. The City Atty continues to misguide City Council and other staff by taking cases that are NOT focused on a narrowly - tailored solution,whieh are Inapplicable to Newport situation. Specific information and guidance will be provided shortly. FYI. Alone Taber has been attempting for two days to get drafts in Word so she can work on recommended revisions(as citizens authodzed$30k of their own money to do this). The Planning Dept. (PA) refused to give to them, and the City Airy office did not return calls. Fortunately, I was able to reach Dave Kiff an how ago, and he will take care of it So, citizens eominue to spend bme.effort and Money, and receive stonewalling . Regards. Denys H. Oberman, CEO Z OBERMAN Strategy and Financial Advisors 2600 Michelson Drive, Suite 1700 Irvine, CA 92612 Tel(949)476 -0790 Cell (949) 230.5868 Fax (949) 7528935 Email: d obernamirmobermsnassociates cam CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which Is legally privileged. The information is intended any for the use of the Individual or entity named above. If you are not the intended redpient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of tits telecepied information is strictly prohibited. If you have received this transmission in error, please notify us immediately at 9491476-0790 or the elechonic address above, to arrange for the return of the documeM(s) to us. From: robert rush [mailto:rrush @usrealtygroup.com] Sent: Thursday, August 16, 2007 7:33 PM To: eaton727 @earthlink.net'Alford, Patrick' Cc:'Lepo, David'; 'Harp, Aaron'; 'robert rush'; strataland @earthlink.net; scott.peotter@taxfighter,com; emcdanlel@fullertoncb.com; bhillgren @cou.net; rhawkins @earthlink.net; eaton727 @earthlink.net; jeff.cole @cushwake.com;'Donald L. Webb'; 'Edward D. Selich';'Keith D. Curry'; 'Leslie 1. Dalgle'; 'Steven Jay Rosansky'; 'Michael F. Henn'; 'Nancy Gardner Subject: RE: Residentlal Uses Code Amendment Barn Good questions Barry ... however related to your Item # 8 below ...Why does the Draft contain a very sly nuance of "1 house of a type per block" ( see above attachment "8 -23 PCDrafStaffReportFINAL ", Page 11, Para 1 ).... This ordinance provision would result in sanctioning MORE group homes than Newport Beach already has.... Examine the issue just by using the Peninsula area between 10th & 60th streets.... roughly 50 streets and each having an average of 3 blocks... The Draft's "1 house of a type per block" would immediately result in 150 houses sanctioned into existence by the City ...so we'd have 150 Drug Rehabs occurring between 10th & 60th streets .... and for each new type of Group Home (ie; maybe an elderly care or eating disorder home, etc) there would be another 150 homes sanctioned between 10th & 60th streets..... Considering the 300 foot distancing of most other categories of Group Homes by the State this Draft's provision of "l house of a type per block" could conceivably result in as many as 3 Group Homes per block ...possibly in the range of 400 450 group homes in all ....fully sanctioned by the City's New Draft Ordinance. Ask yourself ... WHY .....why. wouldsuch.a nua0ce..be.insefted.t0. tltl?..Ordinance Draft .'? ....Surely with all the UNBIASED expertise that we've been paying for as a City ... THIS COULDN'T BE A BLATANT MISTAKE ....COULD IT .... OR IS IT INTENTIONAL....:? My conclusion is that in either case Intentional or Erroneous ...We have a BIG problem here that this could get into.the. Draft at this stage of the md to and it calls into question the competence of the author because this essentially moves us in the direction of worsening Overconcentration ....... Just as the 2004 -16 Ordinance Modification worsened the situation.. Very odd...... and this same "l house of a type per block' turned up in the AG Letter I= ... hmmm. Bob Rush XRIIRXRR1Rt YRRMRRRRItt YRRn1fIRRYl1R YR11Yt1MtM ftY "M1MfYt ttlRlttRMtM M:tftYfttRM RRRRR9RRiM1 MR1iftYRtRR YRR11tMtMt YRRkR #'AR #'ARR RRMNRRfRM f14fMRRiYR a� ffl e : //F:1Users\PLN\Shared\PA's1PAs - 20071PA2007- 112\2007 -08 -23 POCoorespondenc... 08/20/2007 Paget of 2 - -- Original Message- - From: SusarYBarry Eaton tmaiIto:eaton727 (QearthImk netj Sent: Wednesday, August 15, 2007 10:00 PM To Alford, Patrick Cc: Lepo, David; Harp. Aaron Subject: Residential Uses Code Amendment Patrick. I have now read this staff report, the attached amendment, and the other attachments forwarded to us thus far. It does appear to be significantly more substantial than the previous draft; and it appears that it will entail a great deal of effort on the part of both staff and the Commission, lfadopted. Nonetheless, l do have some questions: 1) It appears that both existing and proposed small licensed facilities will be permitted b continue, and be newly established, by right, as dictated by State Law - unless they are deemed part of an Integral Facility. Does this mean that they will also not be utilized in the separation deternlnafions as provided for in proposed Section 20.91A.030.A.2. of the proposed Amendments, if they are not part of an Integral Facility? If they are deemed part of an Integral Facility, will they than become part of the separation determinations? 2 Do the Occupancy restrictions of proposed Section 20.91A 030.8. conflict with the State Housing Code, and the Appellate Court decision rendered in the City of Santa Ana? 3) It appears that Vacation Rentals in he R -1 zone are non- conforming; and that they will, of necessity, become a part of the Abatement Procedures proposed in Section 20.62.090.8. of the proposed Amendments. What other possible or probable non conforming uses are out there in the residential zones, that would be subject to these provisions, and how many of them might there be? Were some of the churches in Residential zones developed prior to Use Permit requirements, for example? 4) In the proposed Section 20.62.030A. & B., the definition of nonconformity is being proposed to be amended to include only "lawfully established and maintained" uses. I would assume that there are many uses in the residential zones that were not ever lawfully established in accordance with the zoning regulations in effect at the time of their establishment, which could range all the way from individual bootleg units to the rather large Narconnan facility, which required a Use Permit at the time of its establishment, but apparently never applied for or received such a permit. If these uses are not nonconformities under the proposed regulations, how will they be dealt with under the proposed enforcement program? 5) Proposed Chapter 28 initiates a "Reasonable Accommodation" process, as had the previous draft, but the standards and findings (and perhaps the applicability) has changed. There are still 2 processes for Reasonable Accommodation - one for those applications that do not accompany another discretionary approval application, and another for those that do. What land of use would the first category entail- licensed small facilities? Why would they need a Reasonable Accommodation, if they have a ADP license? And why would an applicant for another discretionary permit. such as a Use Permit for an unlicensed small facility, also desire a Reasonable Accommodation? 6) If unlicensed small facilities are directed to file an application for a Use Permit, could they just as easily apply for an ADP license. and therety avoid any City requirements? Are there any City requirements for licensed small facilities, such as registration or emergency contacts. or are these provided for in the ADP licensing procedure. and made available to the City's emergency Departments? 7) The staff report notes (on page 8), that the larger Residential Care Facilities will be limited to the MFR zone (which is a good thing, in my opinion). That paragraph goes on to state that there are 188 acres in this zoning, plus an additional 828 acres designated Multiple Residential in the General Plan, but apparently not zoned MFR. Can you give any examples of what zones those General Plan designations do fall into, and where they are in the City? 8) Can you expand upon the thought process that led to the separation requirement of one per block, and none within 75 feet of each other? How were these mileria arrived at? Does the 75 feet relate to the development patterns in parts of the City? If not, why 75', rather than, say, 100 feet or 300 feet? There is already a code definition of a Block Face. Was this considered, as well? 9) The staff report (on page 13) notes that the 3 Specific Plan schedules are proposed to be "...revised to prohibit clubs and lodges, religious assembly, and medical office uses." Why were medical office uses included In this proposed prohibition? And, in the next paragraph, It is pointed out that RLUIPA protects religious uses; and that: "Therefore, no changes to the land use regulations for religious assembly are proposed." Is this not a direct conflict with the preceding paragraph? 10) Finally, one of the 3 things which I had requested that staff look at. at the end of our June 19th meeting, and which was incorporated Into the motion of continuance (see 2nd paragraph at the top of page 48 of the minutes of that meeting) was some summary of what other Cities have been successful in incorporating into their ordinances dealing with these issues. The staff report doesn't appear to address that at all; and the letter form Goldfarb and Lipman appears to relate a few examples from other Cities, but appears to go on to distinguish those as being different circumstances than Newport Beach. Was it not possible to find examples of successful strategies in other Cities that would be applicable to Newport Beach? Thank you very much for your consideration of these questions. I look forward to your response. Barry M file : //F:\Users\PLN\Shared\PA's\PAs - 2007\PA2007- 112\2007 -08 -23 POCoorespondenc... 08/20/2007 PLANNING DEPARTMENT CITY HALL 3300 NEWPORT BOULEVARD P. O. BOX 1768 NEWPORT BEACH, CALIFORNIA 92658 -8915 Memorandum To: Planning Commission From: Patrick J. Alford, Senior Planner (949) 644 -3235 pa Ifo rd (&city. n ewport- beach. ca. u s Date: August 22, 2007 Re: Supplemental information for Residential Uses Code Amendment The Planning Department has received several of questions and comments since the staff report for Code Amendment No. 2007 -005 was distributed on August 13, 2007. In response, the following supplemental information is provided: 2. August 21, 2007 memorandum from Goldfarb- Lipman responding to questions regarding the proposed code amendment. August 21, 2007 memorandum from Goldfarb- Lipman providing a review of ordinances memorandum from Riverside from other communities that address similar issues. The includes a chart with a detailed review of zoning regulations , Murrieta. and Irvine. 3. August 21, 2007 memorandum from Goldfarb- Lipman proposed changes to the code amendment relating to definitions, nonconforming structures and uses, and reasonable accommodation. 4. The correct copy of Exhibit B of the draft resolution. The copy distributed with the staff report did not provide redline /strikeout edits. goldfarb 1300 Cloy Street, Ninth Floor i pma n Oakland, California 94612 attorneys 510836 -6336 M Dodd Kroot August 21, 2007 Lee C. Rosenthal memorandum John T. Nagle Polly V. Marshall Lynn Hutchins To Koren M. Tiedemonn Newport Beach Planning Commission Thomas H. Webber John T. Haygood From Dionne Jackson McLean Polly V. Marshall Michelle D. Brewer Barbara E. Kautz Jennifer K. Bell RE Robert C. Mills Isabel L. Brown Responses to Questions Raised Regarding Draft Ordinance James T. Diamond, Jr. William F. DiComillo Several questions have been raised since the staff report and draft zoning ordinance Margaret F. Jung revisions were released by the City on August 13. As requested by the City, below are Heather J. Gould our responses to some of the questions raised. Juliet E. Cox The City's Planning staff has also responded to several other issues raised. Their Erico Kyle Williams responses are attached. Amy DeVaudreuil Barbara E. Kautz A. SEPARATION REQUIREMENTS FOR CONDITIONAL USES IN Luis A. Rodriguez RESIDENTIAL DISTRICTS Because there seems to be some confusion about the standards for approving new conditional uses, this memo first describes the requirements included in the draft ordinance. Draft Ordinance Provisions. The proposed zoning ordinance would include a new Facsimile Chapter 20.91A that would establish additional requirements for all conditional uses in 510 836 -1035 residential zoning districts. These conditional uses include government offices, Son Francisco churches, schools, major utilities, parks, residential care facilities (except small licensed 415 788.6336 facilities), and bed and breakfast inns. All of these uses must meet certain specific standards (proposed Section 20.91 A.030). In particular, if the City contains enough Los Angeles facilities of a certain type to serve the needs of Newport Beach residents, then no uses 213 627 -6336 of the same type may be located on the same block, or within 75 feet of the use Son Diego (proposed Section 20.91 A.030.A). 619 239 -6336 Goldfarb & Lipman LLP However, even if a use meets all of the standards in proposed Section 20.9IA.030 including the separation standard, the City is not required to approve the use. Use permits are discretionary, meaning that the City may exercise its judgment in 1526 \02\474129.3 3 Planning Commission August 21, 2007 Page 2 determining whether to approve a use. The proposed ordinance contains findings that must be made to approve conditional uses in residential zones (proposed Section 20.91A.040 and existing Section 20.91.035.A). In particular, for any new conditional use, these findings require that the use be compatible with the character of the surrounding neighborhood, and that the addition of the use not change the residential character of the neighborhood, such as by creating an overconcentration of non- residential uses in the vicinity of the proposed use (proposed Section 20.91 A.040.C). Therefore, even if a use meets the separation requirements, the City may still deny the use permit if there is an overconcentration of other non - residential uses in the vicinity of the proposed use, and the use will change the residential character of the neighborhood. The City may deny a use permit even if there are not enough uses of that type to serve the needs of Newport Beach's residents, if there is an overconcentration of other non - residential uses in the vicinity of the proposed use, and the use will change the residential character of the neighborhood. The City must make these findings if supported by substantial evidence and in a non - arbitrary, non - discriminatory fashion and, in particular, cannot discriminate against housing for the disabled. Courts will not require facilities to apply for a conditional use permit if the application is "manifestly futile" based on a history of denials of similar facilities.1 The City may also deny any use permit in a residential zoning district if there is insufficient on -site parking, if traffic impacts are not reduced to a level of insignificance (proposed Section 20.91A.0403), or, more generally, if the use permit will be detrimental to the public health, safety, or welfare or detrimental to properties in the vicinity (existing Section 20.91.035.A.2). Other findings that must be made are included in proposed Sections 20.91A.040 and existing Section 20.91.035. The proposed ordinance also reduces the number of non - residential uses allowed in residential districts. Hospitals, convalescent facilities, and SRO residential hotels will no longer be permitted, even with a use permit, in any residential district. Residential care facilities, general (serving seven or more persons), are limited to MFR zones and similar zones in the PC and SP districts and require a use permit. Small unlicensed residential care facilities are limited to R -1.5, R -2, and MFR zones and similar zones in PC and SP districts and require a use permit. The following questions have been asked. Do the Reauirements for Seaaration from a Use of the Same Tyue Mean that the Citv Must Approve Three Tvnes of Residential Care Facilities on Each Block? The separation requirements are minimum standards that must be met in cases where if the City contains enough facilities of a certain type to serve the needs of Newport Beach See, e.g., United States v. Village of Palatine, 37 F.3d 1230, 1234 (7'" Cir. 1994) (finding that an application for a use permit would not be "manifestly futile" because the Village had "'made numerous zoning changes in the face of community opposition' in order to accommodate the handicapped. ") 2 1526 \02 \474129.3 A Planning Commission August 21, 2007 Page 3 residents for that type of facility. A use of the same "type" means a use that serves the same need in the community. However, even if a new use meets the separation requirements, the City must make all of the findings required by proposed Section 20.91A.040 and existing Section 20.91.035.A in order to approve the use. As discussed in detail earlier, if the City cannot make all of those findings — for instance, if there is substantial evidence that the the project does not have enough parking or the use will change the residential character of the neighborhood — it must deny the application. In addition, no new hospitals, convalescent homes, and SRO residences can be approved in any residential district; no new residential care facilities, general, can be approved in R -1, R -1.5 and R -2 zones; and no small unlicensed residential facilities can be approved in R -1 zones. Scenarios predicting that hundreds of new conditional uses will be approved in residential districts assume that: 1) operators of hundreds of small unlicensed facilities serving six or fewer people will apply for use permits; and 2) the City will approve every application for a conditional use, even if all of the required findings cannot be made and even if the character of residential neighborhoods will be changed. Both of these assumptions appear very unlikely, and the second scenario is not permitted by the ordinance. How Were the Proposed Separation Requirements Developed? The separation requirements are applicable to all conditional uses in residential districts where the City has adequate uses of that type to serve the needs of Newport Beach's residents. We are not aware of separation requirements that are generally applicable to all conditional uses in a residential district. In relation to residential care facilities (one type of conditional use), the APA Guide on Community Residences (adopted by the American Planning Association on September 22, 1997), states that: Community residences should be scattered throughout residential districts rather than concentrated in any single neighborhood or on a single block. For a group home to enable its residents to achieve normalization and integration into the community, it should be located in a normal residential neighborhood. If several group homes were to locate next to one another, or be placed on the same block, the ability of the group homes to advance their residents' normalization would be compromised. Such clustering would create a de facto social service district in which many facets of an institutional atmosphere would be recreated and would change the character of the neighborhood. 1526 \02 \474129.3 5 Planning Commission August 21, 2007 Page 4 Normalization and community integration require that persons with'disabilities be absorbed into the neighborhood's social structure. The existing social structure of a neighborhood can accommodate no more than one or two group homes on a single block... While the research on the impact of group homes makes it abundantly clear that group homes a block or more apart produce no negative impacts, there is concern that group homes located more closely together can generate adverse impacts on both the surrounding neighborhood and on the ability of the group homes to facilitate the normalization of their residents, which is, after all, their raison d'etre. While the APA's standard of one use block to achieve social integration and reduce impacts on neighborhoods applies only to group homes, it appears to be a reasonable standard for all conditional uses in residential zones, not just residential care facilities. It also would be of benefit to residents of residential care facilities, in that it would facilitate the normalization of group home residents. The 75 -foot standard was based on existing lot widths and narrow alleys and was intended to avoid having group homes in the most intensely developed parts of the City placed next to each other or directly across an alley. Why Was a Block Used Instead of a Block Face? A restriction on one conditional use block face would allow approximately the same number of conditional uses as one conditional useiblock and could be adopted by the Planning Commission if it prefers. Are the Separation Requirements Applicable to Small Licensed Facilities? Small licensed facilities cannot be subject to any separation requirements other than those imposed by State law. Most small licensed community care facilities must be separated by 300 feet from another community care facility. However, there are no separation requirements for small licensed residential care facilities for the elderly nor for small licensed drug and alcohol rehabilitation facilities, and the City cannot impose these separation requirements. Small licensed facilities are also not included in the separation requirements in the proposed ordinance. Small licensed facilities must be considered a family for all local zoning purposes and so cannot be viewed as a use of the same "type" as one that needs a use permit. However, if small licensed facilities are part of an integral facility that serves more than six persons, they will be considered a part of a general residential care facility. The owner will then be required either to: apply for a use permit for the integral facility; amortize the integral facility if no use permit is granted or if the property is not located 4 1526 \02W74129.3 W Planning Commission August 21, 2007 Page 5 in the MFR zone; or change the operation of the home so that it is not operated as an integral facility. Besse There Are Enoueh Licensed Drue and Alcohol Treatment Facilities to Serve the Needs of Newport Beach Residents. Mav the City Prohibit Additional Drug and Alcohol Treatment Facilities? Licensed drug and alcohol treatment facilities serving six or fewer persons must be considered a residential use of property, and the residents and operators must be considered as a "family.i2 The only restrictions that the City may apply to these small licensed facilities would be those applicable to single- family dwellings. A blanket ban on other residential care facilities providing drug and alcohol treatment or otherwise providing housing to recovering drug and alcohol users would be considered to be facially discriminatory under the Fair Housing Act because it would apply only to facilities providing housing for persons with disabilities. Facially discriminatory requirements can only be justified if the requirements benefit persons with disabilities or respond to legitimate safety concerns, rather than being based on stereotypes. As discussed in detail in our August 13 memo, substantial evidence has not been submitted into the record showing legitimate safety concerns associated with drug and alcohol treatment facilities. While there is evidence that persons with disabilities may benefit if there is no more than one facility per block, substantial evidence has not been submitted into the record indicating a benefit to the disabled from the avoidance of overconcentration on a citywide basis, especially when there are many parts of Newport Beach that contain very few licensed facilities of any type. Adoption of a citywide prohibition on additional drug and alcohol treatment facilities would consequently violate State law, for a ban on small licensed facilities, and would not be consistent with the Fair Housing Act. B. OCCUPANCY RESTRICTIONS Draft Ordinance Provisions. The proposed ordinance provides that, for uses requiring conditional use permits in residential districts, there may be no more than two residents per bedroom, plus one person (proposed Section 20.91A.030.B).These occupancy limits are viewed as a "safe harbor" (not violative of the Fair Housing Act) by the Department of Housing and Urban Development for landlords who wish to establish occupancy limits for their rented units. z See Health & Safety Code Section 11834.23. 'See Community House v. City of Boise, 468 F.3d 1118, 1125 (9th Cv. 2006; amended June 2007). 1526 %02W74129.3 E Planning Commission August 21, 2007 Page 6 The California Housing Code establishes occupancy limits based on square footage a In most cases these limits would be much higher than two persons/bedroom. For instance, in a one - bedroom apartment consisting of a 120 sq. ft. bedroom and 400 sq. ft. living area, 3 people could sleep in the bedroom, and 7 could sleep in the larger living area. Do the Occuyancv Restrictions of Prouosed Section 20.91A.030.B Conflict with the State Housing Code, and the Briseno v. City of Santa Ana Decision? The Briseno decisions involved an effort by the City of Santa Ana to modify the Housing Code's occupancy standards to reduce perceived overcrowding in residential neighborhoods. The Court of Appeals held that the State's Housing Code standards preempt local ordinances, unless a City can make a finding that "local climatic, geological, or topographical conditions" require a change in the Housing Code. Santa Ana had made no findings related to these conditions. The Court was also concerned that enforcement of the City's occupancy limits would result in massive evictions. Unlike the ordinance adopted by the City of Santa Ana, the proposed zoning ordinance amendments do not amend the Housing Code. The proposed ordinance affects only conditional uses in residential zones and establishes a standard of two persons per bedroom plus one person. The City intends to apply the same standard to short -term lodging permits when it amends the permitting sections of the Municipal Code. In reviewing applications for conditional use permits, cities have broad discretion to establish conditions to ensure that the required findings can be made. They are permitted to determine the appropriate extent of the use and typically determine occupancy when reviewing applications for residential care facilities, churches, schools, and other conditional uses. Rather than setting an occupancy standard in the zoning ordinance, the City could review each application for a use permit on a case -by -case basis and determine the appropriate size of the facility based on traffic, parking, and other traditional criteria reviewed in the use permit process. However, the City believed it would be better to have a consistent standard that would be applied uniformly. The City may still reduce the occupancy if, for instance, there are not enough parking spaces for the use. C. REASONABLE ACCOMMODATION Draft Ordinance Provisions. The proposed zoning amendments include a new "reasonable accommodation" chapter (proposed Chapter 20.98). This implements 4 Under the Uniform Housing Code, every dwelling unit is required to have at least 1 room with a minimum of 120 square feet of floor area; other habitable rooms are required to have an area of at least 70 square feet; and in any room used for sleeping purposes, "the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two." (Uniform Housing Code, § 503, subd. (b)) Four people may then occupy a room of 190 sq. ft. (about the size of a one -car garage), two in the larger room and two in the smaller room. s 6 Cal. App. 4" 1378 (1992). 1526 %02W74129.3 in Planning Commission August 21, 2007 Page 7 provisions of the fair housing laws that require the City to grant a reasonable modification of its zoning and other building laws when necessary to allow disabled persons an equal opportunity to reside in Newport Beach. The City is not required to grant accommodations that would create an undue financial or administrative burden or that would require a fundamental alteration in the City's zoning ordinance. Proposed Chapter 20.98 sets out two alternative procedures, depending on the nature of the request for a reasonable accommodation. An applicant may request a reasonable accommodation as part of an application for another discretionary permit, such as a use permit, a variance, or site plan review. In that case, the request for a reasonable accommodation would be heard at the same time, by the same decision - makers, as the discretionary permit and would be noticed in the same way. An applicant may also request a reasonable accommodation as part of an application for a non - discretionary, or ministerial permit, such as a building permit or encroachment permit. In that case, the Zoning Administrator would make the decision, and only abutting property owners, the Planning Commission, and the City Council would be notified. The following questions have been asked regarding proposed Chapter 20.98. Under What Kind of Situation Would an Applicant Renuest a Reasonable Accommodation and Not Also Be Applying for a Discretionary Permit? A non - discretionary permit (or ministerial permit) is one that is issued based on fixed standards, with the City's discretion limited to the application of fixed standards. Typical non - discretionary permits are building permits and encroachment permits. A disabled person would request a reasonable accommodation that did not require a discretionary permit if the only approval that would otherwise be required would be a ministerial permit. For instance, a person might request a change in the City's standards for driveway curb cuts to accommodate a van with a lift for a wheelchair. Why Would an Applicant for Another Discretionary Permit Also Desire a Reasonable Accommodation? An applicant for a discretionary permit would most commonly apply for a reasonable accommodation under one of two circumstances. First, an applicant may apply for a reasonable accommodation because the City may be able to make the findings to grant the reasonable accommodation but not the findings to grant the discretionary permit. The findings for a reasonable accommodation are based on the disabled status of the applicant or clients and the person's or clients' need for the accommodation to have equal access to housing and other services. A reasonable accommodation remains in effect only as long as a disabled person resides in, or uses, the property. By contrast, the findings for a discretionary zoning permit are based on the physical characteristics of the property and the physical characteristics of the 7 1 526\02\474129.3 ■I Planning Commission August 21, 2007 Page 8 application. Most discretionary permits run with the land: the permit remains in effect even if the ownership or occupant of the property changes. A typical situation might be one where a disabled person needs a wheelchair ramp that extends into the front yard setback. Newport Beach's requirements for a variance include a fording that the variance is required because of special circumstances applicable to the property, such as its size, shape, topography, or surroundings (Section 20.91.035.B.1). But this is not the case here; the variance is needed because the resident is disabled, not because there is something unusual about the property. In this situation, the City might choose to grant the reasonable accommodation so that a variance is not required. An applicant may also apply for a reasonable accommodation with a discretionary permit if the person desires a modification to the standards usually required for granting the discretionary permit. For instance, the use permit standards being considered include an occupancy standard of two persons per bedroom plus one. A residential care facility might request an increase in these limits as a reasonable accommodation because the facility has large bedrooms where three people can reside and has a therapeutic reason for desiring such large rooms. If the original occupants of the property vacate it, the reasonable accommodation may be continued only if the Zoning Administrator determines that either the accommodation will continue to be used by a person with a disability; or, the modification is physically integrated into the structure and cannot be easily removed (proposed Section 20.98.035.D). D. SMALL RESIDENTIAL CARE FACILITIES Could Small Unlicensed Facilities Choose to Become Licensed and Avoid the Need for a Citv Use Permit? Small unlicensed facilities could choose to become licensed and avoid the need for a use permit if they are providing services that require a license from the State of California. For instance, licenses are available for any facility providing treatment services to people recovering from drug and alcohol abuse. However, no license is available for a facility that provides no services requiring a license. However, even if these facilities obtained a license, they would not be considered as small licensed facilities by the City if they were operating as integral facilities with other residential care facilities and serving a total of more than six persons. The City would consider these facilities to be residential care facilities, general, and require that they either obtain a conditional use permit (if located in the MFR zone) or amortize (if located in another residential zoning district). 8 1526%02A74129.3 16 Planning Commission August 21, 2007 Page 9 Are There Anv Requirements for Licensed Facilities to Provide the Name of an Emereency Contact to the City's Public Safety Deoartments? Licensed residential care facilities are listed on the web sites of the Department of Alcohol and Drug Programs and the Community Care Licensing Division with contact information provided. The Community Care Licensing web sites include a phone number and contact for each facility, as well as the phone number of the County licensing agency. The listing on the ADP web site provides a phone number but no contact name or number of the County licensing agency. These facilities are also required to obtain a fire inspection prior to obtaining a license. Since the State requires that small licensed facilities be considered a family, unless the City requires all families to provide an emergency contact to the City's public safety departments, it cannot require this of small licensed facilities. E. ILLEGAL USES How Will the Citv Deal With Nonconformins Uses That Were Not Lawfully Established in Accordance With the Laws And Ordinances That Were in Effect at the Time the Use Was Established? As with all illegal uses in the City, uses not lawfully established in accordance with the laws and ordinances that were in effect at the time the use was established will be cited and corrected or abated when they are identified. Proposed Section 20.62.030 addresses under what circumstances a use is designated as legal nonconforming, and what consequences result when it is discovered that a use was not lawfully established in accordance with the laws and ordinances that were in effect at the time the use was established. Specifically, proposed Section 20.62.030.E provides that "[a] use or structure that was not lawfully established, maintained, or erected is contrary to the provisions of this code, and the City may commence an action or proceedings for the abatement and removal of the use or structure pursuant to the provisions of Chapter 20.96." Section 20.62.030.E is consistent with the City's current and past Code Enforcement policy and practices. The City's Code Enforcement Department is currently investigating complaints of illegal dwelling units within the City. When the existence of an illegally established or constructed dwelling unit is confirmed, Code Enforcement gives the property owner a Notice of Violation (NOV) and an opportunity to correct the violation(s) within a specified period of time. If the corrections are not made within that period, the City proceeds to present either a series of increasing daily administrative citations or a misdemeanor charge against the property owner. If the citations prove ineffective, the matter is referred to the City Attorney's Office and may be referred for criminal prosecution. The City Attorney's Office is currently prosecuting the owner of 9 1526 \02\474129.3 Planning Commission August 21, 2007 Page 10 several illegal dwelling units in Santa Ana Heights and intends to increase the use of this remedy as necessary. With regards to the Narconon facility, the City has stated in the past that this use was established in conformance with the law in effect at the time it was established. The City is currently undertaking an expanded review of all applicable laws and regulations in effect at the time the Narconon facility and possibly other large facilities were established. • If Narconon, or other uses in residential zones, are discovered not to have been legally established in accordance with the laws and regulations in effect at the time of establishment, they will not be considered a legal nonconforming use and will be subject to existing laws until such time as those laws are amended. • ] f Narconon was legally established in accordance with the laws and regulations in effect at the time it was established, under the proposed ordinance changes in Section 20.62.030.13, Narconon (which is a licensed facility serving seven or more residents located in an MFR zone) would need to apply for and receive a use permit or be subject to amortization. When enforcing the provisions of the Municipal Code against noncompliant residential recovery facility operators, the City's Code Enforcement efforts have been complicated by the actions of some facility operators. The City has provided the following examples: • Facilities which advertise themselves as weekly sober boarding houses on websites such as Craig's List, but switch their description of their operations to "sober living facilities" when they are required by the City to either obtain and comply with the terms of Short Term Occupancy Permits, or cease operation as illegal boarding houses. A recovery facility for adolescents which first described its residential facility as a dormitory for its private school, then abruptly changed its characterization of its operation to two "Residential Care, Limited" facilities when its operator discovered boarding houses and dormitories are not permitted in any residential zone of the City. The operator went on to recruit and accept residential clients without fast acquiring proper licensing from any state agency, but was temporarily stopped when the City reported this to the relevant state licensing agencies. The facility now operates as an adult sober living facility. • A sober living home which moved beds in excess of six out of the unit in advance of an announced ADP licensing inspection. (This violation was able to be identified only because it was reported to the City by a facility resident.) 10 1526 \02 \474129.3 JA Planning Commission August 21, 2007 Page 11 A sober living facility whose operator denied that the dwellings were being used as a sober living facility, characterizing the operation instead as a property management company that chooses to rent only to persons not using alcohol or drugs. This operator refused to allow ADP inspection when the City requested such inspection, and continues to the subject of ongoing investigation and code enforcement activity. • A new facility operator appears to be applying for an ADP license rather than a more applicable and restrictive California Department of Health license. The City is currently working with two state agencies on this matter. Residents of a home located across the street from a large licensed and certified treatment facility receive treatment services from the licensed facility. After the City requested an ADP investigation of what it believed to be an unlicensed expansion of this facility's operations, ADP determined that the home was operating as a sober living home, since no treatment is occurring onsite and the facility across the street is certified to provide outpatient treatment. Outpatient treatment in a residential zone is prohibited in the proposed ordinance changes. • Attempting to bring a property into compliance with Building Code restrictions on the type and location of construction necessary for an alcohol and recovery and treatment facility, a facility operator undertakes unpermitted work over the weekend when no City building inspectors can be reached. Stop work orders are issued the following Monday when the City becomes aware of the activity. Newport Beach Municipal Code Section 20.96.021 (Penalty for Violations) states that "[a]ny person, firm or corporation ... violating ... any of the provisions of this code, shall be guilty of a misdemeanor ... " Although the City has historically been reluctant to impose criminal penalties for zoning code violations in all but the most egregious cases, the City Attorney's office has indicated that the pattern of willfully deceitful behavior by some facility operators makes increased use of criminal penalties likely. 1526 \02k174129.3 13 Planning Commission August 21, 2007 Page 12 RESPONSES FROM PLANNING TO ADDITIONAL ISSUES RAISED A. EXISTING NONCONFORMING USES IN RESIDENTIAL DISTRICTS If the Citv Abates All Nonconforming Uses in Residential Zones, What Are the Nonconforming Uses That Would Need to be Abated? Vacation rentals in R -1 Districts, and their equivalents in Specific Plan Districts, will become legal nonconforming uses and will be subject to the abatement process in proposed Chapter 20.62. There are currently 118 valid short-term lodging permits in areas designated for single- family residential development that will be required to be abated. As stated in the staff report, the major types of nonconformities that will be created are: 1) commercial operations located in residential districts; 2) vacation home rentals in single - family residential districts; and 3) group residential uses. The number of nonconformities created by the code amendment cannot be determined at this time. This will require an extensive review of City records and field investigations. Most religious assembly uses are located in institutional districts. There is at least one, the Corona del Mar Community Church, that is in a R -I District. However, this and other institutional uses were designated Public Facilities or Private Institutional by the 2006 General Plan and will be placed in corresponding zoning districts when the Zoning Code is updated early next year. Hence, they should not need to be abated. B. RESIDENTIAL CARE FACILITIES, GENERAL Larger Residential Care Facilities Will Be Limited to the MFR Zone (188 Acres) Plus Areas Designated Multiple Residential in the General Plan (828 Acres). What Zones Do Those General Plan Designations Fall into, and Where Are Thev Located? Most of the 828 acres are located in PC Districts in areas such Newport Coast, Newport Ridge, Harbor View Hills, Bonita Canyon, North Ford, Park Newport, and Newport Crest. There are also a few RM designated areas in Newport Shores, Cannery Village/McFadden, and Balboa Village Specific Plan Districts. A number of properties in the West Newport Mesa area are designated RM, but are currently in non - residential zoning districts. C. USES IN COMMERCIAL DISTRICTS The staff report (on page 13) notes that the three Specific Plan schedules are proposed to be "...revised to prohibit clubs and lodges, religious assembly, and medical office uses." Whv were medical office uses included in this proposed 12 1526102\174129.3 1 `{ Planning Commission August 21, 2007 Page 13 Prohibition? And. in the next paragraph, it is pointed out that RLUIPA protects religious uses; and that: "Therefore, no changes to the land use regulations for religious assembly are proposed." Is this not a direct conflict with the preceding paragraph? It is not proposed that all business and professional offices be prohibited. However, it is proposed to prohibit those offices that provide services involving the assembly or meetings of 7 or more persons. This land use regulation is considered necessary to prohibit group assembly uses from operating in retail storefronts because such uses are considered incompatible with the West Newport and Balboa Peninsula's commercial areas, which are intended to serve as pedestrian- oriented villages with a mixture of retail, visitor - serving, and marine- oriented commercial uses. The conflict was unintentional. An earlier draft of the report indicated that all public assembly uses would have to be prohibited in the subject commercial districts. After further discussion among staff, it was determined that RLUI PA would require that religious assembly uses would have to be allowed in the affected commercial districts. The exhibits and the RLUIPA paragraph were changed, but not the preceding paragraph. Staff apologizes for the oversight. 13 1526 \02\1741293 15 gold farb 1300 Clay Street, Ninth Floor i pma n Oakland, California 94612 attorneys 510 836 -6336 M David Kroot August 21, 2007 Lee C. Rosenthal memorandum John T. Nagle Polly V. Marshall Lynn Hutchins Karen M. Tiedemann To Thomas H. Webber Newport Beach Planning Commission John T. Hoygood From Dianne Jackson McLean Michelle D. Brewer Polly V. Marshall Jennifer K. Bell Barbara E. Kautz Robert C. Mills RE Isabel L. Brown James T. Diamond, Jr. Review of Other Zoning Ordinances William F. DiCamillo Margaret F. Jung The Planning Commission asked that we review the ordinances of other cities to Heather 1. Gould determine how they are handling issues similar to those being considered by Newport Juliet E. Cox Beach. We reviewed the ordinances listed by the Concerned Citizens of Newport Beach (CCNB) and others that had been recommended to us. A chart is attached that includes Erica Kyle Williams a detailed review of zoning provisions in Riverside, Murrieta, and Irvine. Amy DeVaudreuil Barbara E. Koutz In addition, we did the following research regarding other cities' zoning ordinances. Luis A. Rodriguez (Please note that we relied on the on -line version of the various ordinances, so that it is possible that changes have been made that are not reflected below.) Use Requirements Orange Countv. The County distinguishes between community care facilities, which are licensed or unlicensed facilities providing nonmedical residential care or day care for Facsimile children or adults, including disabled persons; and congregate care facilities, which 510 836 1035 provide care on a monthly basis or longer and are the primary residence of the people San Francisco they serve. Any commercial services offered on -site must be for the exclusive use of the 415 788 6336 occupants. A facility may be located in more than one building and on contiguous Los Angeles parcels within a building. 213 62 7- 6336 Both licensed and unlicensed community care and congregate care facilities serving six San Diego or fewer persons are permitted uses in all residential districts. Community care and 619 239 -6336 congregate care facilities serving 7 to 12 persons are permitted in residential zones with Goldfarb & Lipman LLP a use permit. Congregate care facilities serving more than 12 persons are permitted in areas zoned for multifamily residences and hotels with a use permit. 1526 \02 \474471.1 )I August 21, 2007 Page 2 We could not find any separation requirements Citv of Costa Mesa. Costa Mesa's ordinance is similar to the County's. It distinguishes between licensed residential care facilities and unlicensed residential service facilities. Residential care facilities and residential service facilities serving six or fewer persons are permitted in residential districts. Facilities serving seven or more persons are allowed with a use permit in most residential districts (excluding R -1 districts). The City also allows small boarding houses serving up to three people in all residential districts, and allows boarding houses serving four persons or more with a use permit in most residential districts (excluding R -1). We could not find any separation requirements. City of Orange. The City of Orange permits homes for the elderly and disabled serving six or fewer persons, licensed or unlicensed, in all residential zones. Facilities serving seven or more persons, as well as fraternities, sororities, boarding houses, and rest homes are allowed with a use permit in multifamily districts. We could not find any separation requirements. City of Fontana. Licensed group homes serving 7 or more persons are allowed with a use permit in all residential zones. Unlicensed group homes are considered to be boarding houses. Boarding homes with less than three rooms are permitted in all residential zones; boarding homes with three or more rooms are allowed with a use permit in R -2 and multifamily districts. We could not find any separation requirements City of Dana Point. Dana Point has adopted a wide variety of definitions of various facilities, some of which overlap. A community care facility is a licensed or unlicensed facility that provides nonmedical care to the disabled and children. It is allowed with a use permit in any residential zone. (Small licensed residential care facilities are defined as group homes or small family homes and are permitted in any zone.) Agroup dwelling for 6 or more persons, such as a boarding house or retirement home, is also allowed with a use permit in any residential zone. However, communal housing (which seems similar to a group dwelling) is only allowed in an institutional zone with a use permit, and drug and alcohol treatment centers may be approved only in certain commercial zones with a use permit. We could not find any separation requirements. Citv of Riverside. Provisions adopted by the City of Riverside are shown on the attached chart. As can be seen, they are complex. The City Attorney's office indicated 1526 \02 \474471.1 IV August 21, 2007 Page 3 that the City is amending the group home provisions in the code to clarify the provisions. City of Pasadena. Licensed group homes serving 7 or more persons are allowed with a use permit only in multifamily zoning districts. Unlicensed group homes with three rooms or more are considered to be boarding houses. Boarding homes are permitted only in the highest density multifamily districts. On August 13, 2007 the City Council introduced an ordinance amendment regarding unlicensed group homes serving 6 or fewer disabled persons. The revisions allow these homes to obtain a reasonable accommodation to be located in any residential zoning district (including single - family districts). The reasonable accommodation would be granted by the City staff following a review of the operator for felony convictions and a fire and building review of the premises. Standards for granting the permit include the absence of various nuisance activities and separation from other unlicensed and licensed facilities by 500 feet (contrary to the advice of the City Attorney, who recommended a 300 -foot separation). However, the separation requirement would not apply to separation from licensed drug and alcohol treatment facilities or licensed residential care homes for the elderly, which do not have State separation requirements. While the ordinance does not have any provision for notice, the staff report states that the City will provide notice to surrounding neighbors. Existing unlicensed group homes serving the disabled in single - family areas would be required to apply for a reasonable accommodation, but would not be required to comply with the separation requirements. With the exception of the 500 -foot separation requirement, this ordinance is similar to the approach presented to the City in June, which would have allowed small unlicensed facilities to be approved pursuant to an administrative reasonable accommodation requirement. The City rejected this approach because of the lack of public hearings and notice to neighbors. The ordinance now before the City is more restrictive than the proposed Pasadena ordinance. It requires use permits for new small unlicensed facilities and does not permit them at all in R -I zones. Any existing small unlicensed facilities in R -1 zones will be required to be abated. The use permit process requires more notice and a public hearing and allows a broader range of issues to be reviewed than does the Pasadena ordinance. However, an administrative reasonable accommodation requirement as originally proposed is certainly an acceptable option. In relation to the separation requirements, we discussed our legal concerns in detail in our August 13, 2007 memo. We would also reiterate the following (included in our memo responding to questions raised by the public): 15261021474471.1 19 August 21, 2007 Page 4 Even if a use meets all of the standards in proposed Section 20.91 ,4.030 including the [75 foot] separation standard, the City is not required to approve the use. Use permits are discretionary, meaning that the City may exercise its judgment in determining whether to approve a use. The proposed ordinance contains findings that must be made to approve conditional uses in residential zones (proposed Section 20.91A.040 and existing Section 20.91.035.A). In particular, for any new conditional use, these findings require that the use be compatible with the character of the surrounding neighborhood, and that the addition of the use not change the residential character of the neighborhood, such as by creating an overconcentration of non - residential uses in the vicinity of the proposed use (proposed Section 20.91A.040.C). Therefore, even if a use meets the [75 -foot] separation requirements, the City may still deny the use permit if there is an overconcentration of other non - residential uses in the vicinity of the proposed use, and the use will change the residential character of the neighborhood. The City may deny a use permit even if there are not enough uses of that type to serve the needs of Newport Beach's residents, if there is an overconcentration of other non - residential uses in the vicinity of the proposed use, and the use will change the residential character of the neighborhood. Separation Reuuirements City of Murrieta. We talked with the former City Attorney of Murrieta, who was the city attorney at the time the City adopted its ordinance to determine what evidence the City had had of legitimate safety concerns or benefits to the disabled that would justify its 1,000 -foot separation requirement. The City adopted its ordinance after one sober living facility was proposed. The former City Attorney was not aware of any other unlicensed drug or alcohol treatment facility located in Murrieta. Following adoption of the City's ordinance, the proponents chose not to pursue any further action. The City based its ordinance on the theory that sober living facilities might have adverse impacts similar to those of liquor stores and created traffic and safety concerns. The City did not have any police reports to demonstrating safety concerns. Reasonable Accommodation Citv of Los Anl;eles. We talked with a fair housing attorney who consulted with the City on the adoption of its reasonable accommodation ordinance, specifically regarding the noticing provisions. Los Angeles notices only adjacent properties, even when another discretionary permit is being requested. We also used the City's ordinance as a model for certain ordinance provisions. 1526 \02 \474471.1 M, August 21, 2007 Page 5 Cities of San Jose and Santa Rosa. Both of these ordinances hear requests for reasonable accommodation along with any discretionary permit being requested. This is the approach used in the Newport Beach ordinance. Amortization Provisions Citv of San Diego. Attorneys representing CCNB suggested that the City of San Diego has an active amortization program for nonconforming uses, and we contacted the San Diego City Attorney's office. The City indicated that San Diego has very lenient amortization provisions, which were substantially loosened in 2000 (Sections 127.0101 through 127.0109 of the San Diego Municipal Code). The ordinance permits expansion and enlargement of nonconforming uses, so long as the expansion conforms to all current development regulations; allows nonconforming uses to be reestablished with a use permit even after being abandoned; and permits nonconforming uses to be changed to another use "within the same use category." The example given was that the City allowed an adult peepshow to replace an adult bookstore. The only required amortization provisions involve signs in a few zoning districts, with 7 and 15 -year amortization periods. There is no active San Diego amortization program for existing nonconforming uses. Citv of Whittier. This ordinance was recommended as a relatively new ordinance dealing with nonconforming uses. We used some of the procedures in the ordinance as a model. The ordinance establishes a 20 -year abatement period for nonconforming uses. City of Salinas. The City recently updated its entire zoning ordinance, including provisions regarding nonconforming uses. The ordinance establishes a 3 -year abatement period for nonconforming uses in certain residential zones, and a 10 -year abatement period in other zones. However, the Planning Commission may allow the use to remain if it finds that the use is compatible with and not detrimental to the land uses designated in the general plan for the surrounding properties. Other. Cities that we are familiar with have not undertaken an active program to amortize existing legal nonconforming uses (as opposed to removing illegal uses). As cities have become more accepting of mixed uses, many cities have chosen to reduce limitations on existing nonconforming uses. 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OR y C 9 � s;ao or�K v a msW iii � °� r > o °mc'U ��EmYf�`',°°_U � °c °ate .E: 46 «vsiOY,o o'u ."o vy vS°�,o��e� = mo�co'.yr o'y� °w��V.e .s D y s'o O�VVds N•V «° C.VO .GK EOO VAC V��U� w�g°a'WV �E'" ov�s`r o Cw W�+ ea,y AaC E.Epu a o�U o�v�o °y G °— Sd w . T3 EEFsS r 00 i yN P P N s 6 N 35 T ' �O. O O 9 O P V OD O C �C yN O b O q E eG5 NC' �C y O W >� y � O °e E 8 N N' P O 6 N a� goldfarb 1300 Clay Street, Ninth Floor i pma n Oakland, California 94612 attorneys 510836 -6336 M David Kroot August 21, 2007 Lee C. Rosenthal John T. Nagle Polly V. Marshall Lynn Hutchins Karen M. Tiedemann To Thomas H. Webber Newport Beach Planning Commission John T. Haygood From Dianne Jackson McLean Michelle D. Brewer Polly V. Marshall Jennifer K. Bell Barbara E. Kautz Robert C. Mills RE Isobel L. Brown Clarifying Changes in Proposed Zoning Ordinance Amendments James T. Diamond, Jr. William F. DiCamillo memorandum Margaret F. Jung In response to several comments that we have received about the proposed zoning Heather J. Gould ordinance amendments, the following amendments to the ordinance have been Los Angeles suggested. These amendments are proposed to clarify the intent of the proposed Juliet E. Cox amendments, rather than to make substantive changes. Erica Kyle Williams does not conform to a zoning ordinance was lawfully established under a previous Amy DeVoudreuil Proposed Chance to Chanter 20.03.030 (Definitions) Barbara E. Kautz Luis A. Rodriguez Definition of Bedroom. Proposed new Section 20.91A.030.B sets a maximum occupancy of no more than two persons per bedroom, plus one, in conditional uses. The zoning ordinance currently does not define a "bedroom." The following definition should be added: Bedroom. An enclosed space in a structure that is designed such that it could be used for sleeping purooses and meets the room dimension requirements of the most recent Facsimile dition of the Uniform Building Code, is not accessed directly from the Garage. and has 510 836- 1035 one or more windows. San Francisco 1526 \02\175149.2 21 Proposed Changes to Chapter 20.62 (Nonconforming Structures and Uses) 415 788 -6336 Los Angeles Burden of Proof Regarding Determination of Nonconformitv. Case law makes it clear 213 627 -6336 that the person who owns property has the burden of proving that a use that currently San Diego does not conform to a zoning ordinance was lawfully established under a previous 619 239 -6336 zoning ordinance. To clarify this, we wish to add some clarifying language to Section Goldfarb & Lipman LLP 20.62.030.D, as follows: 1526 \02\175149.2 21 August 21, 2007 Page 2 D. When a use or structure does not conform with the use regulations or required conditions for the district in which it is located, it-shall be ibo the property owner or person asserting that it is a nonconforming use or a nonconforming structure has the burden to provide sufficient documentation to the Planning Director that the use or structure was lawfully established, maintained, and erected and is nonconforming by reason of adoption or amendment of this code or by reason of annexation of territory to the City. Exerriution from Amortization for Residential Uses Not Conforming to Densitv Requirements. The City's current amortization provisions, and the proposed ordinance, exempt from amortization uses which are "nonconforming only in terms of their density" (proposed section 20.62.090.A.2.a). This section was intended to exempt, for instance, duplexes in single - family zones, or triplexes in two - family zones. However, the City's Planning staff has indicated that a duplex is considered a different use than a single - family home, and a multi - family residential structure is considered a different use than a duplex. To implement the City's original intent in adopting this provision, it should read as follows: 2. Nonconforming Use of Land Involving a Structure. a. In Residential Districts (Chapter 20.10) or in an area where residential uses are provided for in Planned Community Districts or Specific Plan Districts, a nonconforming use of land involving a structure shall be discontinued within two years following approval of an inventory containing the use pursuant to Section 20.62.090.B. Exception: Multi-Family Residential uses and Two Family Residential uses located in Residential Districts (Chapter 20.10), and in areas where residential uses are provided for in Planned Community Districts or Specific Plan Districts, which are nonconforming only in terms of their density or parking or their use as Multi - Family Residential or Two - Family Residential shall not be subject to abatement. Proposed Change to Chauter 20.98 (Reasonable Accommodation) Discontinuance of Accommodation If Disabled Person Vacates Property. A reasonable accommodation is granted based, in part, on the disability of the person occupying or using the property. As drafted, proposed Section 20.98.035.D requires that the accommodation be discontinued if the "persons initially occupying a residence" vacate, unless the Zoning Administrator makes certain findings. To clarify that the accommodation is provided for disabled persons, we would suggest the following clarifying language: 1526 \02\1751491 N! August 21, 2007 Page 3 D. Discontinuance. A reasonable accommodation shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. If the i abled persons initially ^ :np a - sidenee v ^for whom the accommodation was granted vacate the building or site, the reasonable accommodation shall remain in effect only if the Zoning Administrator determines that (1) the modification is physically integrated into the residential structure and cannot easily be removed or altered to comply with the Code or (2) the accommodation is to be used by another individual with a disability. The Zoning Administrator may request the applicant or his/her successor in interest to the property to provide documentation that subsequent occupants are persons with disabilities. Failure to provide such documentation within ten (10) days of the date of a request by the City shall constitute grounds for discontinuance by the City of a previously approved reasonable accommodation. 1526 \02 \475149.2 d� CHAPTER 20.91 USE PERMITS AND VARIANCES Sections: Page 20.91 -1 Use Permits and Variances 20.91.010 Purpose 20.91.015 Use Permit or Variance Requisite to Other Permits 20.91.020 Application for Use Permit. 41LVariance: -iK-4l e&,rg -F xec- tiex- Permit 20.91.025 Duties of the Planning Director and the Planning Commission 20.91.030 Notice and Public Hearing 20.91.035 Required Findings 20.91.040 Conditions of Approval 20.91.045 Effective Date 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation 20.91.055 Amendments and New Applications 20.91.060 Rights of Appeal 20.91.010 Purpose This article provides the flexibility in application of land use and development regulations necessary to achieve the purposes of this code by establishing procedures for approval, conditional approval, or disapproval of use permit and variance applications. Use permits are required for use classifications typically having unusual site development features or operating characteristics requiring special consideration so that they may be designed, located, and operated compatibly with uses on adjoining properties and in the surrounding area. Variances are intended to resolve practical difficulties or unnecessary physical hardships that may result from the size, shape, or dimensions of a site or the location of existing structures thereon; from geographic, topographic, or other physical conditions on the site or in the immediate vicinity; or from street locations or traffic conditions in the immediate vicinity of the site. Variances may be granted with respect to property development regulations and performance standards, but do not extend to land use regulations. 20.91.015 Use Permit or Variance Requisite to Other Permits No building permit or certificate of occupancy shall be issued in any case where a use permit, a variance,, ei lledeFal G, ".epti n lle ii is required by the terms of this code unless and until such use permit-, nLvarianceT„�Gde. A F:X:: � Pe has been anted b the Planning Director or the P �,...,,. SI Y g Planning Commission or by the affirmative vote of the City Council on appeal or review and then only EXHIBIT E 1526\02\469855.28.8.2007 31 Page 20.91 -2 Use Pennits and Variances in accordance with the terms and conditions of the use permit; or variance &F+ed i Exception Fermat granted. 20.91.020 Application for Use Permit; sx.Variance; -oF- An application for a use permit; cpr variance; air Federal Fx6epHan Pe... shall be filed in a mariner consistent with the requirements contained in Chapter 20.90, Application Filing and Fees. If the application is for a use permit in a Residential District (Chanter 20.10) or in an area where residential uses are provided for in Planned Community Districts or $pecifif, Plan Districts, the apnlica ion shat be accompanied by the additional information specified in Chanter 20.91 20.91.025 Duties of the Planning Director and the Planning Commission A. Authority. The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits; or variances and Federal r,,,. epti,.., Perin;., unless the authority for an administrative decision on a use permit is specifically assigned to the Planning Director in the individual chapters of this code:` Exception. The City Council shall have final decision - making authority on the applications for use permits; and variances . filed concurrently with amendments to the general plan, zoning code, or a planned community development plan or with a development agreement. B. Renderina of Decision. After the conclusion of the hearing on any application for a use permit; or variance- er- Feder61- E*eeptieti -Perii94, the Planning Commission shall render a decision within thirty -five (35) days. Where the authority for an administrative decision on a use permit is assigned to the Planning Director, the Planning Director shall render a decision within fourteen (14) days of the acceptance of completed application. C. Report to the Planning Commission and City Council. The Planning Director shall report the discussion of the Planning Commission on a use permit or variance to the City Council at the next regular meeting or within 5 days of the decision, whichever occurs first. Upon rendering a decision on a use permit, the Planning Director shall report to the Planning Commission and the City Council at the next regular meeting or within 5 days of the decision, whichever occurs first. 1 0It{fillRt3ig F µiia+et4x tKheyily{<m initially ia; ate+ a -mid Rgprtweee ByeH -atlxi aetl Ann a F -El eiel l.N a€ - -f#ris ue Eler fcrr, ', deFal BiXecy�tH>n- laeernt EXHIBIT B 1526%02A69855.28.8.2007 3a Page 20.91 -3 Use Permits and Variances D. Notice of Decision. Upon the rendering of a decision on a use permit by the Planning Director, a notice of the decision shall be mailed to the applicant and all owners of property within 300 feet of the boundaries of the site. EXHIBIT B 1526\02A69855.28.8.2007 M Page 20.91 -4 Use Permits and Variances 20.91.030 Notice and Public Hearing A. Public Hearings. The Planning Commission shall hold a public hearing on an application for a use permit; gy variances ke &F4- 4x�e}sEicat+ Retst Public hearings are not required for applications where the authority for an administrative decision on a use permit is assigned to the Planning Director. B. Timing of Hearings. A public hearing shall be held on all use permit variance; and. Federal r.,, ep":en P>Rnit applications, except as otherwise provided in this chapter, within sixty (60) days after the acceptance of a completed application. C. Required Notice. Notice of a public hearing or an administrative decision shall be given as follows: Mailed or Delivered Notice. a. Residential Districts. At least 10 days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within 300 feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least 10 days prior to the hearing or an administrative decision, notice shall be mailed to the applicant and all owners of property within 300 feet, excluding intervening rights -of- way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. 2. Posted Notice. Notice shall be posted in not less than 2 conspicuous places on or close to the property at least 10 days prior to the hearing or the administrative decision. Published Notice. Notice shall be published in at least one newspaper of general circulation within the City, at least 10 days prior to the hearing. D. Contents of Notice. The notice of public hearing or of the decision of the Planning Director shall contain: EXHIBIT B 1526021469855.2_8.81007 31 Page 20.91 -5 Use Permits and Variances 1. A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing or of the purpose of the administrative decision; 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard at the public hearing or their rights of appeal in case of administrative decisions. E. Continuance. Upon the date set for a public hearing before the Planning Commission, the Planning Commission may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. 20.91.035 Required Findings The Planning Conunission or the Planning Director, as the case may be, shall approve or conditionally approve an application for a use permit or variance if, on the basis of the application, plans, materials, and testimony submitted, the Planning Commission or the Planning Director finds: A. For Use Permits. That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located. That the proposed location of the use permit and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city. 3. That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. 4. If the use is proposed within a Residential District (Chanter 20.10) or in an area whey residential uses are provided for in Planned Community Districts EXHIBIT B 1526%02\169855.2_8.8.2007 35 Page 20.91 -6 Use Permits and Variances or Specific Plan Districts, the use is consistent with the purposes specified in Chanter 20.91A and conforms to all reouirements of that Chapter. B. For Variances. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application ofthis code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. 2. That the granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant. That the granting of the application is consistent with the purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. 4. That the granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. E - -} ��ai�rr Prriis' 1. The Fedem' Exeeption °at -mit -. Eight is, ,.,.,iea _ d .,,l.Iled 2. '1- kte- #trvwtt�+ �!recryt- ic..f :e{...tesitiittr �rrrtlj�- F }welltrtg_.pr -r,.. ,I»,�;;;,�:- oz_a- �utgle # kx�ekeepulc-l! nI{-' .3 The Federal Exception ller... ;r ,pfe _d A,ould no. . ,,. ire 3 ia+tdutnettH+i a#teratiota- irxtfle -u rtu }ef >f +txtuttaeif� tl{trogratt� rx�r ta�puseeB B }jdue-i+rkauwm4 trr ec3txittisirttti� ~;:- bctrfle.*It c- u +- ibe- Ci�ti- -=tt -r ihc- �tt�rt t- BUikitritt?d- #ty�- #aw;� +kte ta..top; the ...... .... ie GFIy Coun it „ , kvview el, a.,, eal ,..,,, 'h@; . ,,.., C•ed,. ,.I kieepiion ue a , ,.L.d ®, but to i are - 4x44- uHe�asatv#v kifr�iit## -i, r re t: � R ee ittraa #atict t' - =[ts t# ak trrtN -i4+t ed rr -## e keetezaN =nor l Ionstng t :AtrteBdltaeuES(4-HAA ) d the ('01"', t., h� Federal n..,. ...r.,., Ren*14 ..i,..0 b- 6 smbsiafiiial eyid,nee in di vc= r�eeircithatesl t+s#�esttteEaBtr�r .,f the findi..g.. C.,. H.,R.0Vf1# ..,.,.,t be made, AFe suit eet to EXHIBIT B 1520D2\469855.28.8.2007 3(P Page 20.91 -7 Use Permits and Variances d+tratien a- �rr�- Ri9- ext ®i }t That itivcxttd�i ctietf= try -tci -er vialaFe. ar+y rti vant FON i ion of the N.,,., AM4 BeaE1?-IVIEEHietpa4-Ode if !he Federal r`,Eeep � !'i4—whe`.- .7,., .,7„ „« ,F,., TAT„ ,..t Re hi�•• Inxri :�t�ic'fliiE{-- {h,R{-- si�z"r�Fp, ixE4;,, +,. „«rozv-vm�c/.,," "�'�..+:.mmi-- nue-q -iH --tile ftetghb9i' , �itll „•he ller , campliq ...1A ' .:donl:.,I 'f the Ueda.., ' E`ti'6eptkE }}T-t� @Tfitki- �1=8ifr �riif ?i£ad; 20.91.040 Conditions of Approval The Planning Commission or the Planning Director, as the case may be, may impose such conditions in connection with the granting of a use permit.. or variance, or Federal F.K ,ptinn Permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. including but not limited to management and operations mans. Such conditions may include but are not limited to, requirements for off - street parking facilities and prohibitions against assembly uses as determined in each case. T4e- ti }1lewing- Londi6Ems shalt- be4wl*4sod- tfpwt +he assE anet t34 atw f Eterz xint3pticR Pefmiy A. 'fife peffflitteesh ,:, :1 . � , ., r +r n.. u:s� t3nii s) tune- te�lr�t}iarr�heawn313t*r <tf� c� ettt?Ani s- perFrtitted- tx=+I�e- p,•rt;;��s of Title -14-of Aat aw't r +lea la- At+Enieipxal -CtAe, N. The f3ellli e2 bhiilt l: Y.,.1.. Ofk'Fl }�8't}tZ dA IIAt- <iii?i'e tHEtv;n;aen <'e Heise Eir- d +stur {t+ zee+;. g. t.. itt .ty..ct3tiEtEast;- <tt:..aiaiate prfi�iviertrwi= t {iirL�Eitte t•'r arry..{< E'+ �- gier- tiei} �iaag�te�rx- �is� .�ctisEa+fie}Fut��rtdxx�: -tl3e Q The pefH14t8c guest!; have efflfliiiitted eYi. �1tL+(- i�tiftr' eeitit3iiiiti?@-- HE3F!: t:- El i�{ }t':taFt3ii-nEt?;- �n�f'd °ii} ci }5E?t'Elt4lj'- tdlit�HE:i-(iP ,+'ale i t ar the seofitiegal 1..,.. ..,.. .� b�,.,.,�"„a=ts•1ct- peezvertt --^ .c', .1. .a,,,.f v. T i}e }sLnttae 'n ise he. t efti3r+;�Er all Ehapfavisions. . __..___�'{ 1 { {- pfY3ti Ei7-F}•f%E)R:: Tt6Eifikl4- �',Ta�e'wittlri the d el"ji.. ,.:, .. EXHIBIT B 1526 \02\469855.2_8.8.2007 31 Page 20.91 -8 Use Permits and Variances TJGliTl'tl' ,.i' • •�a. F. �� .��+.a� k�.� C.��4�.�v. 20.91.045 Effective Date Use permits,- and variances; -and Federal Exeeption Penn'•° shall not become effective for fourteen (14) days after being granted, and in the event an appeal is filed or if the Planning Commission or the City Council shall exercise its right to review any such decision under the provisions of Chapter 20.95, the permit shall not become effective unless and until a decision granting the use permit, 2r variance- e- I^edefal r°^� is made by the Planning Commission or the City Council. 20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation A. Expiration. Any use permit; or variance, or I'e eral howeption PsFm:F granted in accordance with the terms of this code shall expire within twenty -four (24) months from the effective date of approval or at an alterative time specified as a condition of approval unless: 1. A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4: The use is established; or 5. A time extension has been granted. In cases where a coastal pemit is required, the time period shall not begin until the effective date of approval of the coastal permit. B. Time Extension. The Planning Director may grant a time extension for a use permit; or variance- 6M- Meraf -1 aecOrti F it for a period or periods not to exceed three years. An application for a time extension shall be made in writing to the Planning Director no less than thirty (30) days or more than ninety (90) days prior to the expiration date. C. Violation of Terms. Any use pemTit; or variant granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such use permit, are violated, or if any law or ordinance is violated in connection therewith. EXHIBIT B 1526 \02k469855.2 8.8.2007 J" Page 20.91 -9 Use Permits and Variances D. Discontinuance. A use permit; or variancextytiEyr.1?�yrn }t shall lapse if the exercise of rights granted by it is discontinued for one hundred eighty (180) consecutive days. E. Revocation, Procedures for revocation shall be as prescribed by Chapter 20.96: Enforcement. 15261021469855.2 8.8?007 EXHIBIT B Page 20.91 -10 Use Permits and Variances 20.91.055 Amendments and New Applications A. Amendments. A request for changes in conditions of approval of a use permit; or variance—.+)F4'edeFa1 Pkoeptien - Psmiit or a change to plans that would affect a condition of approval shall be treated as a new application. The Planning Director may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or additions to the plan or the conditions of approval, and are consistent with the intent of the original approval. B. New Applications. if an application for a use permit: or variance, or Federal J;*eeptien ei =;;i is disapproved, no new application for the same, or substantially the same, use permit; or variance Ren*4 -shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. 20.91.060 Rights of Appeal A. Appeals Decisions of the Planning Director may be appealed to the Planning Commission and decisions of the Planning Commission may be appealed to the City Council. B. Procedures. Procedures for appeals shall be as prescribed by Chapter 20.95: Appeals. EXHIBIT B 1526\02\469855.28.8.2007 E