HomeMy WebLinkAbout2007-8 - Making Findings and Establishing 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, Residential CORDINANCE NO. 2007- 8
AN INTERIM URGENCY ORDINANCE OF THE CITY OF NEWPORT
BEACH, CALIFORNIA, MAKING FINDINGS AND ESTABLISHING 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,
RESIDENTIAL CARE FACILITIES, GENERAL, AND BED &
BREAKFAST INNS, AS WELL AS THE ISSUANCE OF NEW SHORT -
TERM LODGING PERMITS IN ALL RESIDENTIAL ZONING DISTRICTS
OF THE CITY
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 Section 65858 provides that for the purpose of
protecting the public safety, health and welfare, the City Council may adopt, without
following the procedures otherwise required prior to the adoption of a zoning ordinance,
as an urgency measure, an interim ordinance, by a vote of four - fifths (4/5) majority,
prohibiting any uses that may be in conflict with a contemplated general plan, specific
plan, or zoning proposal that the legislative body, planning commission or the planning
department is considering or studying or intends to study within a reasonable time; 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 operates more like institutional and boarding housing uses
than as 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
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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, LU 6.2.6 and LU 6.2.7); and
WHEREAS, the number of vacation rentals in the City, which are regulated by requiring
a short term lodging permit under Chapter 5.95, has grown steadily over many years,
and the City now issues short term lodging permits for approximately 801 residential
units on 527 parcels to use as transient rentals. Most are located in residential zoning
districts R1.5, R.2, and MFR. The numbers and actions of short-term renters require the
City to expend extensive resources on expanded law enforcement, code enforcement,
refuse collection and other services, and has strained parking and traffic resources,
particularly due to traffic blockages created during the weekly change of tenants; and
WHEREAS, citizens of the City have expressed significant concerns regarding the
impacts that a proliferation of paroleetprobationer, 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, the City has received evidence that residential care facilities licensed to
serve six or fewer persons may be 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, in 2004 the City Council adopted an ordinance regulating residential care
facilities because the transient nature of the uses became of concern to permanent
residents; and
WHEREAS, significant concerns have been raised by the community regarding the
adequacy of current regulations to maintain the residential character of Newport
Beach's residentially zoned neighborhoods; and
WHEREAS, on January 23, 2007, the City Council adopted Resolution No. 2007 -5
forming the Intense Residential Occupancy Committee to study and evaluate lawful
solutions and make recommendations to the City Council on local, state and federal
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legislation that will allow the City to better mitigate the adverse impacts of intense
(dense occupancy and/or transient) residential uses; and
WHEREAS, 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; and
WHEREAS, the City has commenced these studies of appropriate regulations, but
additional planning and research are necessary before the City adopts any permanent
regulation regarding appropriate uses in residentially zoned districts as well as the
issuance of short-term lodging permits; and
WHEREAS, the City requires additional time to determine the actual impacts of
parolee/probationer, transient, group, non - residential, and commercial uses and short-
term lodging permits now permitted in residentially zoned areas. The City also requires
additional time to determine appropriate uses in residentially zoned areas, 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 parolee /probationer,
transient, group, non - residential, and commercial uses and persons desiring to utilize
residences to provide short term lodging 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 study and adopt new regulations regarding these
uses.
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.
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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, residential care facilities, general, and
short-term lodging pursuant to short-term lodging permits, prior to the City completing a
study of the existing and potential impact and regulation of these uses and facilities,
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, health
or safety.
SECTION 2: Imposition of Moratorium.
In accordance with the authority granted the City of Newport Beach by the City Charter
and Government Code Section 65858, for a period of forty -five (45) days from and after
the date of this ordinance, the following provisions are applicable to all residential
districts of the City:
A. No new transitory use shall be established or operated, and no use
permits, variances, short-term lodging permits, 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 facilities and small and large family child
care homes shall be exempt from the provisions of this ordinance.
B. No short-term lodging permit may be issued for any dwelling unit unless,
on or before April 24, 2007, the City issued to that dwelling unit a short term lodging
permit as required by Section 5.95 of the Newport Beach Municipal Code.
C. 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 Section 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, 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
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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 section 23.03.030, 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 section 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. "Short term" shall have the same meaning as the term is defined in
Municipal Code section 5.95.010(C).
9. "Short term lodging permit" shall mean any permit sought to be
acquired or acquired pursuant to the provisions of Chapter 5.95 of the Municipal Code.
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10. "Single housekeeping unit" shall have the same meaning as the
term is defined in Municipal Code Section 20.03.030.
11. "Small family child care homes" shall have the same meaning as
the term is defined in Municipal Code Section 20.05.030(A)(2).
12. "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, general, short-term lodging pursuant to short-term lodging permits and
other similar residential uses that are transitory in nature.
13. "Unlicensed residential care facilities" shall mean any residential
care facility, limited, as the term is defined in Municipal Code Section 25.05.030(E) that
is not licensed by the State.
14. "Bed & Breakfast Inns' shall mean a visitor accommodation as
defined in Municipal Code Section 20.050.050(EE) (1).
F. 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, short-
term lodging permits, 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 Attorney's Office is directed to
analyze the appropriateness of transientory uses within residential districts in the City of
Newport Beach, including but not limited to evaluating the actual impacts of such
transitory uses on the residential character of the districts, conflicts in state and federal
law, other legal issues regarding such uses, the desirability of such uses, and the extent
of regulatory controls, should such uses be thought appropriate in residential districts.
SECTION 4: Reasonable Accommodation.
In compliance with Fair Housing Laws (42 USC Section 3600 et seq. and Government
Code Section 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:
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1. The provision of this ordinance from which accommodation is being
requested;
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
in 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 -fifths (4/5) of the voting City Council Members may modify, amend, delete or
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add to this ordinance upon a finding that such action will implement and enforce the
goals, policies, and purposes of this ordinance.
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 Sections 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 Section 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
forty five (45) days from and after the date of this adoption on April 24, 2007; provided,
however, that after notice of public hearing pursuant to Government Code Section
65090, the City Council Members may by a four -fifths (4/5) vote of the voting City
Councilmembers extend this interim or urgency ordinance for an initial period of time up
to ten (10) months and fifteen (15) days. Thereafter, after hearing a further one (1) year
extension is also permitted.
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.
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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 24t" day of April,
2007, and adopted on the 24th dayof April, 2007, by the following vote, to -wit:
AYES, COUNCILMEMBERS Henn, Curry, Selich,
Daigle, Gardner, Mayor Rosansky
NOES,COUNCILMEMBERS Nnnr
ABSENT, COUNCILMEMBERS Webb
CITY CLERK
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STATE OF CALIFORNIA }
COUNTY OF ORANGE } as.
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 -8 was 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 24th
day of April 2007, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Henn, Curry, Selich, Daigle, Gardner, Mayor Rosansky
Noes: None
Absent: Webb
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 25th day of April 2007.
(Seal)
1,4
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 2007 -8 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: April 28, 2007.
In witness whereof, I have hereunto subscribed mX name this /Ol r) day of
2007.
City Clerk
City of Newport Beach, California