HomeMy WebLinkAbout2007-16 - Making Findings and Extending a Temporary Moratorium on the Establishment and Operation of New Residential Uses That are Transitory in Nature Such as Parolee-Probationer Homes, Safe Houses, Unlicensed Residential Care Facilities and ResidentialORDINANCE NO. 2007 -16
AN INTERIM URGENCY ORDINANCE OF THE CITY OF NEWPORT
BEACH, CALIFORNIA, MAKING FINDINGS AND EXTENDING A
TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND
OPERATION OF NEW RESIDENTIAL USES THAT ARE TRANSITORY
IN NATURE SUCH AS. PAROLEE - PROBATIONER HOMES, SAFE
HOUSES, UNLICENSED RESIDENTIAL CARE FACILITIES AND
RESIDENTIAL CARE FACILITIES, GENERAL, IN ALL RESIDENTIAL
ZONING DISTRICTS OF THE CITY
WHEREAS, on April 24, 2007 at a regular meeting of the City Council, the City Council
adopted Ordinance No. 2007 -8 an interim urgency ordinance adopting a temporary
forty -five (45) day moratorium on the establishment and operation of new group
residential uses that are transitory in nature such as parolee- probationer homes, safe
houses, unlicensed residential care facilities and residential care facilities, general, in all
residential zoning districts of the City; and
WHEREAS, on May 30, 2007, at a regular meeting of the City Council, the City Council
adopted Ordinance No. 2007 -10, an interim urgency ordinance extending the
moratorium established by Ordinance No. 2007 -8 for a five (5) month period, except as
to the application of the moratorium to short -term lodging uses; and
WHEREAS, on June 21, July 19, August 23, and September 20, 2007, the Newport
Beach Planning Commission held noticed public hearings on draft ordinances relating to
amendments to the Zoning Code, Title 20 of the Municipal Code concerning permitted
uses in residential districts including group residential uses. The Planning Commission
heard public testimony and reviewed documents submitted from members of the public
and their legal representatives. At the conclusion of the hearing on September 20;
2007, the Planning Commission recommended approval of an ordinance amendments
to the City Council for its review and approval; and
WHEREAS, Section 200 of the City Charter vests the City Council with the authority to
make and enforce all laws, rules and regulations with respect to municipal affairs
subject only to the restrictions and limitations contained in the Charter and the
Constitution, and the power to exercise, or act pursuant to any and all rights, powers,
and privileges, or procedures granted or prescribed by any law of the State of California;
and
WHEREAS, Government Code §65858 provides that after notice pursuant to
Government Code §65090 and public hearing, the City Council may extend an interim
ordinance adopted pursuant to Government Code §65858 for an initial extension by up
to 10 months and 15 days; then for a second extension by up to twelve (12) months;
each by a vote of four -fifths (4 /5) majority of the members of the City Council; and
WHEREAS, Section 412 of the City Charter provides for the adoption as an emergency
measure an interim ordinance to preserve the public peace, health or safety by a vote of
at least five (5) City Council members; and
WHEREAS, 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;" and
WHEREAS, the City has received evidence of increasing numbers of group homes that
are transient in nature and operate more like institutional and boarding housing uses
than as a Single Housekeeping Unit. These uses are concentrated in residential zoning
districts R1.5, R -2, and MFR. Uses such as homes for parolees and probationers, group
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 Citys Land Use Element
(Policies LU 1.1, LU 5.1.1, LU 6.2.6 and LU 6.2.7); and
WHEREAS, citizens of the City have expressed significant concerns regarding the
impacts that a proliferation of parolee/probationer, transient, group, non - residential, and
commercial uses has on the community, including, but not limited to, impacts on traffic
and parking, excessive delivery times and durations, the commercial use of public
property, commercial and /or institutional services offered in private residences, more
frequent trash collection, daily arrival of staff who live off -site, loss of affordable rental
housing, violations of boardinghouse and illegal dwelling unit regulations of the
Municipal Code, obvious business operations in residences, secondhand smoke, use of
illegal drugs, and nuisance behaviors such as excessive noise, litter, loud offensive
language, and public drunkenness; and
WHEREAS, in response to questionnaires distributed by Staff to residents residing in
the 1100 and 1200 blocks of West Balboa and West Bay Avenue, the 1100 block of
West Ocean Front, the central portions of the 1800 block of West Ocean Front and
West Balboa Blvd, and the 100 blocks of 38th and one side of 39th Street, residents
identified the following impacts: (1) daily traffic and parking impacts caused by cars and
vans illegally parking in the alleys behind the homes, from vans and other vehicles
stopping in a traffic lanes in the street to pick up persons residing in group residential
homes, and the use of garage spaces for uses other than parking; (2) above average
garbage generation: and collection services caused by the density of the population
living at group residential facilities; (3) second -hand smoke and litter impacts caused by
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residents of the group residential facilities smoking outdoors; and (4) frequent noise
impacts caused by exposure to loud arguments and verbal exchanges (between
residents, and between residents and supervising staff), foul language, and physical
altercations between facility residents. 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; and
WHEREAS, the City has received evidence that residential care facilities licensed to
serve six or fewer persons maybe operating in duplexes and apartments as a campus
or as an integral facility serving seven or more persons without required governmental
approvals; and
WHEREAS, 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; and
WHEREAS, based on the impacts associated with group residential uses, the likelihood
that new group residential uses will seek to be established in the City prior to the
adoption of new regulations, and the need for public hearings before the Planning
Commission and City Council to review the proposed ordinance modifying the
regulation of group residential uses, the City . Attorney has recommended the
moratorium on the establishment and operation of new group residential uses should be
extended for twelve (12) months to accommodate the extended process for zoning code
amendments; and
WHEREAS, the City requires additional time to adopt an ordinance modifying the
regulation of group residential use to reduce impacts on residentially zoned areas while
complying with federal and state laws protecting the disabled, and to specify
appropriate,, permitting licensing or registration procedures and desired levels of
discretionary review; and
WHEREAS, the City Council also needs additional time to receive public comment prior
to enacting any permanent regulatory ordinance; and
WHEREAS, the City Council finds that owners or operators of paroleelprobationer,
transient, group, non - residential, and commercial uses are likely to submit applications
for such uses and /or commence operations of such uses before appropriate regulations
and safeguards are in place thereby impacting the peace, health, safety and welfare of
the community; and
WHEREAS, these uses and facilities may be established in areas that would be
inconsistent with surrounding uses or with the character of a residential neighborhood or
would be immediately detrimental to the public peace, health, safety, and welfare; and
WHEREAS, if those uses are allowed to proceed, such uses could conflict with, and
defeat the purpose of, the proposal to adopt new regulations regarding these uses; and
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WHEREAS, the extension of the moratorium on group residential uses will not
adversely impact the ability of the disabled to find housing in the City of Newport Beach
because the City has a disproportionately high number of licensed and unlicensed
residential group uses serving the disabled.
NOW, THEREFORE, the Newport Beach City Council does hereby ordain as follows:
SECTION 1: Findings.
The City Council finds as follows:
A. The above recitals are true and correct and incorporated herein by this
reference.
B. Based on the recitals above, incorporated into these findings, the City
Council hereby finds and determines that there is a current and immediate threat to the
public peace, health, safety, and welfare, and that the establishment, commencement of
operations, and /or the issuance of use permits, variances, other permits, business
licenses, federal exception permits, or other applicable entitlements providing for the
establishment or operation of transient uses such as parolee- probationer homes, safe
houses, unlicensed residential care facilities, and residential care facilities, general,
prior to the City adopting an ordinance modifying the regulation of group residential use
to reduce impacts on residentially zoned areas, would pose a current and immediate
threat to the public peace, health, safety, and welfare, and that a temporary moratorium
on the establishment of these uses and the issuance of such permits, licenses, and
entitlements is thus necessary.
C. Based on the recitals above, incorporated into these findings, this
ordinance is necessary as an emergency measure to preserve the public peace,
welfare, health and safety.
SECTION 2: Imposition of Moratorium.
In accordance with the authority granted the City of Newport Beach by the City Charter
and Government Code §65858, for a period of twelve (12) months from October 30,
2007, the following provisions are applicable to all residential districts of the City:.
A. No new transitory use (including, but not limited to Residential Care
Facilities, General, and unlicensed residential care facilities) shall be established or
operated, and no use permits, variances, other permits, business licenses, federal
exception permits, or other applicable entitlements for the establishment or operation of
any new transitory use shall be approved or issued, unless otherwise expressly
provided for herein. Licensed residential care
Unders "), small and large family child care homes,
exempt from the provisions of this ordinance.
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facilities (so- called "Licensed 6 and
and short -term lodging uses shall be
B. For purposes of this ordinance the following terms shall have the following
meanings:
1. "Large family child care homes" shall have the same meaning as
the term is defined in Municipal Code §20.05.030(A)(1).
2. "Licensed residential care facilities" are State licensed facilities that
are maintained and operated to provide nonmedical residential care, day treatment, or
foster agency services for six or fewer adults (also known as "Licensed 6 and Unders "),
children, or adults and children and which are required by State law to be treated as a
single housekeeping unit for zoning purposes, but not including State licensed facilities
that are operated as integral facilities and together serve seven or more adults, children,
or adults and children. Licensed residential care facilities shall be subject to all land use
and property development regulations applicable to single housekeeping units.
3. 'Integral facilities" are two or more licensed residential care
facilities that are under the control and management of the same licensee and are
integral components of the same facility, such as by providing housing in one facility
and recovery, treatment, or other services in another facility, or by designating one
facility to provide recovery, treatment, or other services for several residences. Licensed
residential care facilities that constitute a campus, as the term is defined in Municipal
Code §20.03.030, are integral facilities.
4. 'Parolee- probationer homes" shall mean any residential structure or
unit, whether owned and /or operated by an individual or a for -profit or nonprofit entity,
that houses two or more parolees - probationers in exchange for monetary or non -
monetary consideration given and /or paid by the parolee.- 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 supervision of a federal parole officer; B) any individual who
has served a term of imprisonment in a State 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; and C) an adult or juvenile sentenced to a term in the California
Youth Authority and who has received conditional and revocable release in the
community under the supervision of a Youth Authority Parole Officer.
5. `Residential care facilities, general," shall have the same meaning
as the term is defined in Municipal Code §20.05.030(D).
6. "Residential district" shall mean all areas where the use is
designated as a residential use including all residential zoning districts, and residential
uses provided for in Planned Community Texts and Special Plan Areas of the City.:
7. "Safe houses" shall mean any residential structure or unit; whether
owned and /or operated by an individual or a for- profit or nonprofit entity, that houses
two or more persons who are not living together as a single family housekeeping unit
including, but not limited to, residences providing services to current or former gang
members, in exchange for monetary or non - monetary consideration given and /or paid
by the current or former gang members and /or any public or private entity or person on
behalf of the current or former gang members.
8. "Single housekeeping unit" shall have the same meaning as the
term is defined in Municipal Code §20.03.030.
9. "Small family child care homes" shall have the same meaning as
the term is defined in Municipal Code §20.05.030(A)(2).
10. "Transitory uses" shall include new residential uses where the
average tenancy is usually less than ninety (90) days, including but not limited to new
parolee - probationer homes, safe house, unlicensed residential care facilities, residential
care facilities, and other similar residential uses that are transitory in nature.
11. "Unlicensed residential care facilities" shall mean any residential
care facility, limited, as the term is defined in Municipal Code §20.05.030(E) that is not
licensed by the State.
C. As required by State law, the City may continue to accept and process
applications for uses prohibited by this moratorium. Any application shall be processed
at the applicant's sole cost with the understanding that no use permits, variances, other
permits, business licenses, federal exception permits, or other applicable entitlement for
a transitory use may be issued until this moratorium is removed.
SECTION 3: Planning Study.
The Planning Department with the assistance of the City Manager's Office and Special
Counsel is directed to prepare an ordinance modifying the regulation of group
residential uses for consideration by the City Council as soon as possible, but not later
than the first quarter of 2008.
SECTION 4: Reasonable Accommodation.
In compliance with Fair Housing Laws (42 USC §3600 et seq. and Government Code
§12900 et seq.), it is the City's policy to provide reasonable accommodation in the
application of this interim urgency ordinance to any person with a disability who seeks
fair access to housing. "Disability". shall have the same meaning as the terms "disability"
and "handicapped" in the Fair Housing Laws.
A. An application for reasonable accommodation in the application of this
interim urgency ordinance shall be made to the Planning Director and shall include:
requested;
The provision of this ordinance from which accommodation is being
C
2. The basis for the claim that the individuals affected are considered
disabled under the Fair Housing Laws, and why the accommodation is necessary to
provide equal opportunity for housing and to make the specific housing available to the
individuals; and
3. Any other information the Planning Director reasonably determines
is necessary.
B. In making a determination regarding the reasonableness of the requested
accommodation, the following factors shall be considered:
1. Special need created by the disability;
2. Potential benefit that can be accomplished by the requested
accommodation;
3. Potential impact on property in the vicinity;
4. Physical attributes of the property and structures;
5. Alternative accommodations that may provide an equivalent level of
benefit;
6. In the case of a determination involving a one - family dwelling,
whether the occupants would be considered a single housekeeping unit;
7. Whether the requested accommodation would impose an undue
financial or administrative burden on the City;
8. Whether the requested accommodation would require a
fundamental alteration in the nature of a City program; and
9. Whether granting the request would be consistent with the City's
General Plan.
C. Any request for reasonable accommodation from the provisions of this
ordinance shall be reviewed and considered by the Planning. Commission at a public
hearing and may be approved, conditionally approved, or denied by the Planning
Commission.
SECTION 5: Amendments to Ordinance.
The City Council by ordinance after notice of public hearing, by the affirmative vote of at
least four -frfths (4 /5) of the voting City Council Members may modify, amend, delete or
add to this ordinance upon a finding that such action will implement and enforce the
goals, policies, and purposes of this ordinance.
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SECTION 6: Compliance with California Environmental Quality Act.
The City Council finds that this ordinance is not subject to the California Environmental
Quality Act (CEQA) pursuant to §15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and §15060(c)(3)
(the activity is not a project as defined in §15378) of the CEQA Guidelines, California
Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in
physical change to the environment, directly or indirectly; in that it prevents changes in
the environment pending the completion of the contemplated municipal code review.
SECTION 7: Waiver.
The City, on a case by case basis, shall have the authority, upon a showing of good
cause by an applicant, to waive the interim prohibition/moratorium imposed by this
ordinance. Good cause shall mean a factual and evidentiary showing by the applicant
that the interim prohibition /moratorium, if not waived, will deprive the applicant of
substantially all reasonable use of his/her property.
SECTION 8: Term of Urgency Ordinance; Extension.
This interim urgency ordinance shall by operation of law be of no further force and effect
after October 30, 2008.
SECTION 9: Severability.
The City Council hereby declares that if any section, subsection, sentence, clause or
phrase of this ordinance is, for any reason, held to be invalid or unconstitutional such
decision shall not affect the validity or constitutionality of the remaining portions of this
ordinance. The City Council hereby declares that it would have passed this ordinance,
and each section, subsection, clause or phrase hereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses or phrases may be declared
invalid or unconstitutional
SECTION 10: Effective Date.
This ordinance is hereby declared to be an urgency measure and shall be enforced and
be in effect immediately upon its adoption.
SECTION 11: Publication.
The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance.
The City Clerk shall cause the same to be published once in the official newspaper of
the City of Newport . Beach within fifteen (15) days of its adoption.
This Ordinance was introduced and adopted as an urgency measure at a regular
meeting of the City Council of the City of Newport Beach held on the 1r day of
October, 2007, and adopted on the 1 r day of October, 2007, by the following vote, to-
wit:
AYES, COUNCILMEMBERS
Henn, Selich, Webb,
Daigle, Gardner, Mayor Rosansky
NOES,COUNCILMEMBERS None
ABSENT, COUNCILMEMBERS.
CITY CLERK
N
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 2007 -16 as duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 17th
day of October 2007, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Henn, Selich, Webb, Daigle, Gardner, Mayor Rosansky
Noes: None
Absent: Curry
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 18th day of October 2007.
(Seal)
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE ) ss.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 2007 -16 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: October 20, 2007.
K1111/A
In witness whereof, I have hereunto subscribed my name this �VA day of <Dje ber
h
City Clerk
City of Newport Beach, California