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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 2 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 3 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. 4 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. 7 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